Claimant, an inmate proceeding pro se, filed this claim alleging that defendant
State of New York (defendant) was negligent in failing to provide him with
timely dental treatment while he was incarcerated at Elmira Correctional
Facility. Defendant answered and asserted affirmative defenses. Simultaneously
with the claim, claimant filed an Affidavit in Support of Application for Waiver
of Filing and Service Fees and Cost to Proceed as a Poor Person. Claimant
thereafter filed a formal motion (Motion No. M-72382) for permission to file an
amended claim and for assignment of counsel. Defendant opposes claimant’s
application to proceed as a poor person,
candidly states that it has no legal grounds for challenging the motion to amend
the claim. Initially, claimant requests that he be permitted to prosecute this
action as a poor person and that the Court assign counsel to represent
The filing fee in this matter has
already been reduced by order dated December 1, 2006, and the prosecution of
this claim requires no further costs or fees. To the extent claimant is
required to mail pleadings to the Clerk’s Office and to defendant,
“[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
, Ct Cl, June 21, 2005, Sise, P.J., Claim No.
110624, Motion No. M-69991 [UID # 2005-028-534]).
Further, 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, supra). Claimant’s allegations
of negligence in the failure to provide dental treatment are of the nature that
would typically be handled by counsel on a contingent fee basis. 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). Claimant’s motion for leave to proceed as a poor person and
for assignment of counsel is denied.
With respect to claimant’s motion to file an amended claim, the Uniform
Rules for the Court of Claims (22 NYCRR) § 206.7 (b) provides that
“[p]leadings may be amended in the manner provided by CPLR 3025, except
that a party may amend a pleading once without leave of court
. . . within 40 days after service of a pleading responding
to it.” The claim in this matter was filed on November 24, 2006 and
defendant timely filed its answer by mail on December 28, 2006. As a result,
claimant had until February 13, 2007 in which to serve an amended claim as of
Rather than filing and serving an
amended claim, however, claimant filed Motion No. M-72832 seeking unnecessary
permission to amend the claim. A proposed amended claim is attached as an
exhibit to the motion papers which were filed on January 16, 2007 and served on
the Attorney General on January 9, 2007. Because the time in which to amend the
claim as of right had not expired, the Court hereby deems the proposed amended
claim attached to claimant’s “Notice of Motion” dated January
4, 2006 (sic) to be an amended claim filed as of January 16, 2007 and served on
the Attorney General by ordinary mail on January 9, 2007 (see Berry v State
of New York,
Ct Cl, July 28, 2003, Minarik, J., Claim No. 107454, Motion No.
M-66737 [UID # 2003-031-052]).
shall file and serve an answer to the amended claim within 40 days from the
filing date of this decision and order (see
Uniform Rules for the Court
of Claims [22 NYCRR] § 206.7 [a]).
The Clerk of the Court is directed to file, as an amended claim, the proposed
amended claim attached as an exhibit to claimant’s “Notice of
Motion,” as of January 16, 2007. Claimant’s motion for leave to
proceed as a poor person and to file an amended claim is denied.
Filed papers: Claim filed on November 24, 2006; Affidavit in Support of
Application for Waiver of Filing and Service Fees and Cost to Proceed as a Poor
Person sworn to on November 16, 2006; Verified Answer filed on January 3, 2007.
. Claimant specifically requests assignment
of counsel in his motion to amend the claim. However, such an application is
typically considered within the context of a motion to proceed as a poor person,
and the Court will treat this request in that manner (see e.g. Pettus v State
of New York,
Ct Cl, July 27, 2006, Sise, P.J., Claim No. 109717, Motion No.
M-71735 [UID # 2006-028-579]).
. February 6, 2007 was the 40th day after
December 28, 2006; however, because the answer was served by mail, claimant had
an additional 5 days in which to file and serve an amended claim (CPLR 2103 [b]
). February 11, 2007 was a Sunday and the time to serve the amended claim
was extended until the next business day which was February 13, 2007 (General
Construction Law § 25-a  [February 12, 2007 was Lincoln’s
Birthday, a public holiday (General Construction Law and, t§ 24)]).
. The Court of Claims Act and the Uniform
Rules for the Court of Claims are both silent as to the proper procedure for
serving an amended claim, and therefore such service is governed by CPLR 2103
(b) (see Rodriguez v State of New York,
Ct Cl, Sept. 24, 2002, Midey,
Jr., J., Claim No. 98912, Motion Nos. M-64882, CM-65025 [UID # 2002-009-41]).
Because claimant obtained jurisdiction over the State by timely filing the claim
and serving it on the Attorney General “either personally or by certified
mail, return receipt requested,” claimant was able to serve the amended
pleading by any one of several methods, including ordinary mail (see