New York State Court of Claims

New York State Court of Claims

LEWIS v. THE STATE OF NEW YORK, #2007-028-524, Claim No. 113060, Motion No. M-72627


Synopsis


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Case Information

UID:
2007-028-524
Claimant(s):
JAMES LEWIS
Claimant short name:
LEWIS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113060
Motion number(s):
M-72627
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant’s attorney:
James Lewis, pro se
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERAL
BY: Michael T. Krenrich, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 2, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on Claimant’s motion for permission to proceed as a poor person (CPLR 1101):

1. Affidavit in Support of James Lewis, pro se; and


2. Letter of Michael T. Krenrich, AAG.


Filed papers: Claim; Answer

This claim for money damages is based on allegations that in March 2005, at Coxsackie Correctional Facility, Claimant was improperly charged with several disciplinary infractions, leading to a sentence to be served in a Special Housing Unit. His conviction was subsequently overturned in an Article 78 proceeding. Claimant also alleges that while he was at Coxsackie Correctional Facility and later, after he was transported to Southport Correctional Facility, he did not receive adequate or proper attention for a medical condition.

Claimant has already been granted poor person status pursuant to CPLR 1101(f), and his filing fee was reduced from $50.00 to $35.00 by Order of this Court dated December 6, 2006. By this motion, Claimant seeks permission to proceed as a poor person (CPLR 1101) in order to have counsel assigned to represent him in prosecuting this action (CPLR 1102[a]).

CPLR 1101 (c) requires that "[i]f an action has already been commenced, notice of the motion shall be served on all parties, and notice shall also be given to the county attorney in the county in which the action is triable..." Claimant does not indicate that he served the appropriate County Attorney. In addition, according to a letter from defense counsel, he also failed to serve Defendant State of New York. Failure to comply with this section renders an application defective (Sebastiano v State of New York, 92 AD2d 966 [3d Dept 1983]; Harris v State of New York, 100 Misc 2d 1015, 1016 [Ct Cl 1979]).

Even if Claimant had fully complied with all of the statutory service requirements, however, his application would still be denied. The assignment of counsel in civil matters is discretionary and is generally denied except in cases involving grievous forfeiture or loss of a fundamental right (see Matter of Smiley, 36 NY2d 433 [1975]; Wills v City of Troy, 258 AD2d 849 [3d Dept 1999], lv to app dismissed 93 NY2d 1000 [1999]). Furthermore, the Court has no power to require the compensation of retained counsel out of public funds (Matter of Smiley, supra). The instant claim does not involve either a grievous forfeiture or a loss of a fundamental right, and consequently Claimant would not be entitled to appointment of counsel even if he had complied with the requirements for properly bringing this motion.

Claimant's motion is DENIED.


March 2, 2007
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims