New York State Court of Claims

New York State Court of Claims

STAPLETON v. THE STATE OF NEW YORK, #2007-044-524, Claim No. 113044, Motion No. M-72832


Synopsis


Claimant's motion for permission to amend claim denied, as time to amend claim as of right had not expired when motion was filed. Clerk instructed to file proposed amendment as amended claim

Case Information

UID:
2007-044-524
Claimant(s):
THEIL T. STAPLETON
Claimant short name:
STAPLETON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113044
Motion number(s):
M-72832
Cross-motion number(s):

Judge:
CATHERINE C. SCHAEWE
Claimant’s attorney:
THEIL T. STAPLETON, pro se
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Geoffrey B. Rossi, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 8, 2007
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

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,[1] but 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 him.[2] 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 [1975]; 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 right.[3] 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]).[4] Defendant 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.



May 8, 2007
Binghamton, New York

HON. CATHERINE C. SCHAEWE
Judge of the Court of Claims


The following papers were read on claimant’s motion for leave to proceed as a poor person and to file an amended claim:

1) Notice of Motion filed on January 16, 2007; Affidavit of Theil Stapleton sworn to on January 4, 2007, and attached exhibits.

2) Affirmation in Opposition of Geoffrey B. Rossi, AAG, dated December 28, 2006.

  1. Affirmation in response of Geoffrey B. Rossi, AAG, dated February 12, 2007.
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.

[1]. Defendant argues that the failure to serve the Chemung County Attorney is fatal to this application. However, claimant’s affidavit of service filed in the Court Clerk’s Office states that he served the motion for poor person status on both the Attorney General and the Chemung County Attorney and, therefore is presumed to have complied with the requirements of CPLR 1101 (c).
[2]. 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]).
[3]. 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] [2]). 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 [1] [February 12, 2007 was Lincoln’s Birthday, a public holiday (General Construction Law and, t§ 24)]).
[4]. 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 CPLR 2103 [b]).