New York State Court of Claims

New York State Court of Claims

PERKINS v. STATE OF NEW YORK, #2009-032-113, Claim No. 115922, Motion No. M-75748


Synopsis



Case Information

UID:
2009-032-113
Claimant(s):
MICHAEL PERKINS
Claimant short name:
PERKINS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115922
Motion number(s):
M-75748
Cross-motion number(s):

Judge:
JUDITH A. HARD
Claimant’s attorney:
Michael Perkins, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo, NYS Attorney GeneralBy: Roberto Barbosa, Assistant Attorney General, Of Counsel
Third-party defendant’s attorney:

Signature date:
March 17, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant moves this Court for an order granting him permission to proceed as a poor person and for the assignment of counsel. The Court previously granted claimant’s request for a reduced filing fee by Order of Hon. Richard E. Sise, Presiding Judge, which was filed on October 23, 2008. Defendant opposes the motion for various reasons, including the alleged failure of claimant to serve defendant with the motion, in accordance with 22 NYCRR § 206.9(b).

CPLR § 1101 provides the mechanism for applying poor person status, and CPLR § 1102 allows the Court to assign an attorney to a poor person. The assignment of counsel in private matters is discretionary and is generally denied except in cases involving grievous forfeiture or loss of a fundamental right (see Matter of Smiley, 36 NY2d 433 [1975]; Wills v City of Troy, 258 AD2d 849 [3d Dept 1999], lv denied 93 NY2d 1000 [1999]). A review of the pleadings in this case reveals that claimant is alleging that defendant lost or destroyed some of claimant’s personal property during a cell to cell move within the Southport Correctional Facility. As such, the claim fails to rise to the level warranting assignment of counsel.

Inasmuch as the filing fee has been addressed, the prosecution of this matter in this Court does not require the claimant to pay any additional costs of fees. The Court notes that claimant is not even required to outlay funds to mail legal papers. The correctional facility provides limited free postage on a weekly basis and if the claimant exceeds his weekly allotment and has no funds available in his prison account, the correctional facility will advance funds for postage on legal mail (7 NYCRR 721.3).

Accordingly, this Court finds that even if the pending motion was served upon defendant in accordance with 22 NYCRR § 206.9(b), claimant’s motion for an order granting him permission to proceed as a poor person and for the assignment of counsel must be, and hereby is denied.




March 17, 2009
Albany, New York

HON. JUDITH A. HARD
Judge of the Court of Claims


Papers Considered:


1. Affidavit in Support of Request to Proceed as a Poor Person, sworn to by Michael Perkins, on October 1, 2008, and filed on October 6, 2008.[1]

2. Affirmation of Roberto Barbosa, AAG, in Opposition to Claimant’s Motion for Appointment of Counsel and to Proceed as Poor Person, dated December 3, 2008.

Filed Papers: Claim, filed October 6, 2008; Order of Hon. Richard E. Sise, Presiding Judge, filed on October 23, 2008; Verified Answer, filed November 10, 2008.


[1].The Court will deem the application as properly made despite the lack of a Notice of Motion (see 22 NYCRR 206.8).