SPIRLES v. THE STATE OF NEW YORK, #2007-044-593, Claim No. 114139, Motion Nos.
M-73985, M-73986, M-74021
Claimant's motion for assignment of counsel and leave to proceed as poor person
denied. Court denied claimant's motion to amend claim as moot, because time to
amend as of right had not expired. Claimant's motion to compel responses to
discovery demands was denied as premature, as defendant's time to respond had
not expired as of the date of claimant's sworn affidavit in support of this
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
M-73985, M-73986, M-74021
CATHERINE C. SCHAEWE
WILLIE SPIRLES, pro se
HON. ANDREW M. CUOMO, ATTORNEY
GENERALBY: Roberto Barbosa, Assistant Attorney General
December 3, 2007
See also (multicaptioned
Claimant, an inmate proceeding pro se, filed this claim (Claim No. 114139)
alleging that he was “intentionally injured” by correction officers
on April 21, 2007 while he was incarcerated at Elmira Correctional Facility.
Defendant State of New York (defendant) answered and asserted several
affirmative defenses. Simultaneously with the claim, claimant filed an
“Affidavit in Support of Application” pursuant to CPLR 1101 (f),
seeking permission to proceed as a poor person and for assignment of counsel
(Motion No. M-73986). Defendant opposes the motion. Claimant replies.
Claimant also filed a motion (Motion No. M-73985) to compel defendant to accept
claimant’s “correct pleading as an add on to the one he has already
Defendant opposes that motion,
arguing that because claimant was able to amend the claim as of right, the
motion is not necessary. Claimant replies. Thereafter, claimant filed a third
motion in this claim (Motion No. M-74021) to compel
Defendant opposes that motion as
well. Claimant replies.
In Motion No. M-73986, claimant moves for permission to prosecute this action
as a poor person and requests that the Court assign counsel to represent him.
The filing fee in this matter has already been reduced by order dated September
14, 2007, 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]).
Furthermore, 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 battery by
correction officers 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 (Motion No.
M-73986) for leave to proceed as a poor person and for assignment of counsel is
Claim No. 114139, filed on August 24, 2007, contains only two numbered
paragraphs: the first containing claimant’s address, and the second
containing all of the factual allegations of claimant’s cause of action
for battery. In the Verified Answer, defendant raised claimant’s failure
to list each factual allegation in a separate paragraph. Apparently in response
thereto, claimant filed Motion No. M-73985 to compel defendant to accept his
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 August
24, 2007 and defendant timely served its answer on September 12, 2007. As a
result, claimant had until October 22, 2007 in which to serve an amended claim
as of right. Rather than filing and serving an amended claim, however, claimant
filed Motion No. M-73985 seeking unnecessary permission to amend the claim. As
stated previously in this Decision and Order, an amended claim was served on the
Attorney General by mail on September 21, 2007 and was filed on September 27,
2007. Because the time in which to amend the claim as of right had not expired,
the Court hereby deems the “correct claim” attached to
claimant’s affidavit sworn to September 21, 2007 to be an amended claim
filed as of September 27, 2007 and served on the Attorney General by ordinary
mail on September 21, 2007 (see Berry v State of New York,
Ct Cl, July
28, 2003, Minarik, J., Claim No. 107454, Motion No. M-66737 [UID #
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]). Claimant’s Motion No. M-73985 is denied as moot.
Claimant moves in Motion No. M-74021 to compel disclosure of: 1) all the
misbehavior reports and the unusual incident report for April 21, 2007; 2) all
complaints filed by claimant against officers Knolls, Sharp, and the A-Officer
in I-block (“seven to three shift a.m.”) on the day of the incident;
and 3) all “cell search contraband” slips for claimant’s cell
during the past year. Defendant received the demand on September 7,
and had 20 days within which to respond
(CPLR 3122 [a]). Although this motion was filed on September 28, 2007,
claimant’s affidavit stating that defendant had refused to produce the
requested documents was sworn to on September 25, 2007, two days before the
responses were due.
claimant’s motion to compel is denied as
In conclusion, Motion No. M-73986 for permission to proceed as a poor person
and for assignment of counsel is denied. Motion No. M-73985 for permission to
amend the claim is denied as moot. The Clerk of the Court is directed to file,
as an amended claim, the “correct claim” attached to
claimant’s affidavit sworn to September 21, 2007, as of September 27,
2007. Motion No. M-74021 to compel disclosure is denied as premature.
Binghamton, New York
HON. CATHERINE C. SCHAEWE
Judge of the
Court of Claims
The following papers were read on claimant’s motions:
1) Claimant’s Affidavit in Support of Motion No. M-73986 filed on August
2) Affirmation in Opposition of Roberto Barbosa, AAG (Motion No. M-73986),
dated October 5, 2007.
3) Claimant’s Reply Affidavit (Motion No. M-73986) sworn to on October
4) Notice of Motion (Motion No. M-73985) filed on September 14, 2007; Affidavit
of Willie Spirles sworn to on September 11, 2007.
5) Claimant’s Affidavit sworn to on September 21, 2007 (Motion No.
M-73985), and attached exhibit.
6) Affirmation in Opposition of Roberto Barbosa, AAG (Motion No. M-73985),
dated October 23, 2007, and attached Exhibit A.
7) Claimant’s unsworn Affidavit filed on October 29, 2007 (Motion No.
8) Claimant’s Notice of Motion (Motion No. M-74021) filed on September
28, 2007; Affidavit of Willie Spirles sworn to on September 25, 2007.
9) Affirmation in Opposition of Roberto Barbosa, AAG (Motion No. M-74021),
dated October 5, 2007, and attached Exhibit A.
10) Claimant’s Reply Affidavit (Motion No. M-74021) sworn to on October 4,
2007, and attached exhibits.
11) Undated letter from claimant (Motion No. M-74021) received on October 18,
Filed papers: Claim No. 114139 filed on August 24, 2007; Verified Answer to
Claim No. 114139 filed on September 17, 2007.
. The Court will treat claimant’s
motion as one to amend the claim and will refer to it as such throughout this
Decision and Order.
. Claimant initially filed Motion No. M-74021
incorrectly under Claim No. 113971 (which is a claim for lost property).
Assistant Attorney General (AAG) Roberto Barbosa discovered the error and noted
such in his opposition papers. Claimant thereafter notified the Clerk of the
Court that the proper claim number for this motion is Claim No. 114139.
Accordingly, Motion No. M-74021 concerns Claim No. 114139 and will be decided in
this Decision and Order.
The Court notes that claimant has recently submitted other documents which did
not contain a claim number. Claimant is advised that any documents, including
motion papers, which do not set forth a claim number will not be filed and will
be returned to him. It is not the responsibility of Court staff to determine
which document pertains to what claim.
. Claimant did not attach the
“corrected” claim to Motion No. M-73985. However, claimant
subsequently filed an affidavit on September 27, 2007 to which he attached a
document entitled “correct claim.”
. Claimant subsequently filed a document
entitled “amended claim after 40 days” on November 21, 2007. That
document was filed, without the Court’s permission, more than 40 days
after service of the answer. Accordingly, the “amended claim after 40
days” is hereby deemed a nullity and dismissed.
. Affirmation of Roberto Barbosa dated
October 5, 2007, in Opposition to Motion to Compel, ¶ 6.
. It appears that defendant mailed the
responses to claimant on September 28, 2007 (Affirmation of Roberto Barbosa
dated October 5, 2007, in Opposition to Motion to Compel, ¶ 6).
. In a reply affidavit, claimant asserts that
defendant’s responses were not sufficient. Because this motion to compel
is premature and neither party has submitted the demand and defendant’s
complete responses, the sufficiency of defendant’s responses is not
properly before the Court.