Filed Papers: Verified Claim filed August 11, 2004; Verified Answer filed
September 22, 2004; Order, Sise, P.J., filed August 18, 2004.
Claimant seeks various types of relief by way of this single motion including
the scheduling of a pre-trial conference for settlement purposes, appointment of
counsel, the scheduling of a trial date, and "[t]o incorporate the attached
documents by reference" (Notice of Motion).
The underlying Claim alleges that personnel at Southport Correctional Facility
improperly opened Claimant's legal mail without his permission and outside his
presence and confiscated a check sent to him by the Department of Finance.
Claimant seeks the appointment of counsel to assist him in litigating this
Claim. An Order has previously been issued reducing the filing fee for this
Claimant to $25.00 (Pettus v State of New York, Ct Cl, August 18, 2004,
Sise, P.J., Claim No. 109717).
CPLR § 1101 (c) requires that "notice shall also be given to the county
attorney in the county in which the action is triable...." This requirement is
significant because the payment of the witness fees, and the other privileges of
a poor person, may be a county charge (CPLR § 1102). Failure to comply
with this section renders an application defective (Sebastiano v State of
New York, 92 AD2d 966 ). There is no proof whatsoever that the
appropriate county attorney's office has been served with the moving papers. As
such, Claimant has failed to comply with the requirements of the statute, making
his application defective. The Court therefore denies the instant application
for the appointment of counsel.
Even if the Court were to countenance the failure to serve the county attorney,
the application would nevertheless be denied. The assignment of counsel in
civil matters is discretionary (Matter of Smiley, 36 NY2d 433, 438
). Generally, counsel will not routinely be assigned except in a proper
case, such as one involving grievous forfeiture or loss of a fundamental right
(Wills v City of Troy, 258 AD2d 849 , lv dismissed 93 NY2d
1000 ; Morgenthau v Garcia, 148 Misc 2d 900, 903 ). A review
of the pleadings in this case reveals that this Claim fails to rise to the level
warranting assignment of counsel.
Inasmuch as the filing fee has been addressed, the prosecution of this matter
in this Court does not require the Claimant to pay any costs or fees. To the
extent Claimant must mail pleadings to the Court and the Defendant, Claimant is
entitled to limited free postage on a weekly basis and advances for legal mail
postage, if he has insufficient funds (Robbins v State of New York
Cl, January 9, 2001, NeMoyer, J., Claim No. 102325, Motion No. M-62803 [UID No.
Next, Claimant seeks the scheduling of a pre-trial conference to discuss
settlement, prepare a discovery schedule, and/or schedule a trial date.
Claimant's request will be denied in its entirety. Preliminary conferences are
not mandated in prisoner pro se claims and the Court declines to direct a
conference in this matter (22 NYCRR § 206.10 [a]). With respect to
Claimant's request for assistance in settling his Claim, the State's opposing
papers indicate it is taking a no liability posture in this matter and has no
reason to engage in settlement discussions. Nevertheless, Claimant is free to
contact Defendant on his own to attempt settlement negotiations, but the Court
will not participate in such discussions. Nor will the Court prepare a
discovery schedule for the parties. Rather, the parties should proceed with
discovery in accordance with the CPLR. Finally, with respect to Claimant's
request for a trial date, the scheduling of prisoner pro se claims fall
within the discretion of the Court and this matter, as with all Claims, will be
scheduled as soon as practicable (22 NYCRR § 206.13).
The final portion of Claimant's motion seeks an Order "[t]o incorporate the
attached documents by reference..." (Notice of Motion). The Court will deem
this portion of Claimant's motion as seeking permission to amend his Claim.
However, Claimant does not seek to amend his Claim in the conventional sense,
but rather requests permission to submit voluminous records as an exhibit to his
Claim. There is no requirement that Claimant submit each and every piece of
potential trial evidence as an exhibit to his Claim. In this Court's view, this
is exactly what Claimant is attempting to do. To the extent that Claimant
believes that these documents are material and relevant, these are issues that
are best left for trial regarding admissibility and/or weight of the purported
evidence. In any event, Claimant has not articulated, nor has this Court found,
any meritorious reason necessitating the submission of these documents as part
of the Claim itself. Claimant's motion to amend his Claim by attaching various
records thereto is denied.
In sum, Claimant's Motion, M-71735, is DENIED in its entirety.