New York State Court of Claims

New York State Court of Claims

SEALY v. THE STATE OF NEW YORK, #2007-042-517, Claim No. 113544, Motion No. M-73256


Synopsis


Claimant has brought this motion seeking poor person status and the assignment of counsel on his claim’s assorted causes of action for property damage and a cause of action for expenses allegedly arising out of the imposition of a disciplinary sentence following a disciplinary decision which was later reversed for lack of timeliness. Claimant’s motion is denied.

Case Information

UID:
2007-042-517
Claimant(s):
DAVID SEALY, 81-A-4049 PRO SE
Claimant short name:
SEALY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113544
Motion number(s):
M-73256
Cross-motion number(s):

Judge:
NORMAN I. SIEGEL
Claimant’s attorney:
DAVID SEALY, 81-A-4049PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 22, 2007
City:
Utica
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant seeks poor person status and the assignment of counsel on his claim’s assorted causes of action for property damage and a cause of action for expenses allegedly arising out of the imposition of a disciplinary sentence following a disciplinary decision which was later reversed for lack of timeliness. The Court has considered the following papers:

  1. Pro se poor person affidavit, filed April 6, 2007
2. Claim, and exhibits appended thereto, filed April 6, 2007
3. Order of Judge Thomas J. McNamara, filed April 16, 2007

__________________________________________________


This matter comes before the court on claimant’s application for poor person status and the assignment of counsel on his claim’s assorted causes of action for property damage and a cause of action for expenses allegedly arising out of the imposition of a disciplinary sentence following a disciplinary ruling which was later reversed for lack of timeliness.

An order has already been issued reducing the filing fee for claimant. This decision addresses the remainder of claimant’s request, for appointment of counsel and poor person status. CPLR 1101 (c) requires that “notice [of such application] shall also be given to the county attorney in the county in which the action is triable. . .”. The notice to the county is required because the payment of certain fees and expenses attendant to the grant of poor person status may be a financial charge to the county. The failure to comply with this notice provision renders an application defective (Sebastiano v State of New York, 92 AD2d 966; Hines v State of New York, UID No. 2005-028-534, Claim No. 110624, Motion No. M-69991, Sise, P.J.). No proof whatsoever has been offered by claimant to demonstrate that notice was provided to the appropriate county attorney. This failure of claimant to comply with the statutory notice requirement renders this application defective.

Even assuming proper notice though, assignment of counsel in civil matters is discretionary and inappropriate under the circumstances of this case. As the court in Jabbar v State of New York (UID No. 2006-044-504, Claim No. 112376, Motion Nos. M-72082, M-72223, Schaewe, J.) stated:

assignment of counsel in civil matters is discretionary and generally is denied except in cases involving grievous forfeiture or the loss of a fundamental right (see Matter of Smiley, 36 NY2d 433; Hines v State of New York, Ct Cl, June 21, 2005, Sise, P.J., Claim No. 110624, Motion No. M-69991 [UID No. 2005-028-534]). In this action, claimant seeks to recover for damaged personal property. There is no constitutional or statutory authority for the assignment or compensation of counsel under the present circumstances and this Court will not exercise its discretion to assign counsel in this matter (see Matter of Smiley, supra).


As to the request for poor person status, the filing fee has already been reduced by prior order of the court and the prosecution of this matter requires no additional costs or fees. To the extent that the mailing of pleadings to the Clerk’s office and to the defendant may be necessary, “[d]efendant provides limited free postage on a weekly basis and permits advances for legal mail postage, if the inmate has insufficient funds.” Hines v State of New York, UID No. 2005-028-534, Claim No. 110624, Motion No. M-69991, Sise, P.J.).

Accordingly, claimant’s application for an order granting him poor person status and for the assignment of counsel is denied.



June 22, 2007
Utica, New York

HON. NORMAN I. SIEGEL
Judge of the Court of Claims