New York State Court of Claims

New York State Court of Claims

SALAHUDDIN v. THE STATE OF NEW YORK, #2007-042-519, Claim No. 113577, Motion No. M-73274


M-73416


Synopsis


There are two motions brought before the court. In the first motion (M-73274) claimant seeks poor person status and the assignment of counsel on his claim’s assorted causes of action for lost personal property and property damage. Claimant’s first motion is denied. In the second motion (M-73416), claimant seeks to compel the production of documents. Claimant’s second motion is denied.

Case Information

UID:
2007-042-519
Claimant(s):
ABDULLAH Y. SALAHUDDIN
Claimant short name:
SALAHUDDIN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113577
Motion number(s):
M-73274M-73416
Cross-motion number(s):

Judge:
NORMAN I. SIEGEL
Claimant’s attorney:
ABDULLAH Y. SALAHUDDIN, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General of the State of New York
By: G. LAWRENCE DILLON, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 31, 2007
City:
Utica
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant has brought two motions before the court. In the first motion (M-73274), claimant is seeking poor person status and the assignment of counsel on his claim’s assorted causes of action for lost personal property and for property damage. In the second motion

(M-73416), claimant is seeking to compel the production of documents. The court has considered the following papers:
  1. Pro se poor person application, filed April 13, 2007
  2. Claim, and exhibits appended thereto, filed April 13, 2007
  3. Order of Presiding Judge Richard E. Sise, filed April 24, 2007
  4. Notice of Motion, filed May 4, 2007
  5. Affidavit of pro se claimant, Abdullah Y. Salahuddin, sworn to May 1, 2007
  6. Defendant's response to motion, filed May 22, 2007
  7. Affidavit of Abdullah Y. Salahuddin, sworn to May 26, 2007
  8. Letter of G. Lawrence Dillon, Esq., dated June 14, 2007, together with enclosure
  9. Letter of Abdullah Y. Salahuddin, dated June 15, 2007
  10. Letter of G. Lawrence Dillon, Esq., dated June 21, 2007
_______________________________________

There are two motions pending before the court. In the first motion (M-73274) claimant seeks poor person status and the assignment of counsel on his claim’s assorted causes of action for lost personal property and for property damage. In the second motion (M-73416), claimant seeks to compel the production of documents.

MOTION FOR POOR PERSON STATUS AND ASSIGNMENT OF COUNSEL
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.

MOTION TO COMPEL THE PRODUCTION OF DOCUMENTS
Claimant seeks to compel disclosure of the following by the defendant:

[t]he hearing transcripts/minuted [sic] in Salahuddin v Goord, 02-CIV-5253, held on April 17, 2007 at the Sourther [sic] District Court . . . These hearing transcripts/minutes are directly related and relevant to the claim at issue, i.e. the intentional and/or negligent loss and damage of claimant’s personal property, now before this court of claims.


Claimant contends that Assistant Attorney General Michael J. Keane attended this “hearing” and made representations about the loss of claimant’s property. Claimant goes on to summarize the hearing in great detail (it is unclear from the motion whether claimant was present at the federal “hearing”). It seems, from claimant’s representations, that Assistant Attorney General Michael J. Keane appeared as counsel for the defendant in the federal matter and that his statements were simply those made as counsel, not as a party to the action, and apparently not under oath.

The State opposes this motion, arguing in part that claimant may request this material directly from the United States District Court. The State relies upon a prior Court of Claims decision in Roy v State of New York (UID No. 2004-031-101, Claim No. 101202, Motions Nos. M-68472, M-68410, M-68033, M-67989, Minarik, J.).

It is not incumbent upon the State to conduct claimant’s discovery for him, or to obtain materials for claimant which are equally available to the claimant. Presumably, the “hearing transcripts/minutes”, if they exist, are under the possession and control of the federal court. There is nothing which precludes claimant from seeking these materials directly from that court.

Nor, as noted above, is it the government’s obligation, as part of a grant of poor person status, to fund disclosure (that is, the obtaining of the transcript of the hearing in federal court, which transcript would be, at best, tangential to the issues before this court). As the court noted in Price v State of New York, 4 Misc 3d 1008(A):

[a]ssuming, arguendo, that claimant would qualify to proceed as a poor person (CPLR 1101, 1102), the benefits conferred by such status do not include assistance with the costs of discovery (see Carter v. County of Erie, 255 AD2d 984 [4th Dept 1998]).


(see also Drew v State of New York, UID No. 2004-013-014, Claim No. 107733, Motion Nos. M-66890, M-67487, M-67820, Patti, J.; Roy v State of New York (UID No. 2004-031-101, Claim No. 101202, Motions Nos. M-68472, M-68410, M-68033, M-67989, Minarik, J.).

Accordingly, claimant’s motion to compel disclosure is denied.




July 31, 2007
Utica, New York

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