New York State Court of Claims

New York State Court of Claims

BROWN v. THE STATE OF NEW YORK, #2009-032-115, Claim No. 112968, Motion No. M-75919


Synopsis



Case Information

UID:
2009-032-115
Claimant(s):
GENEO BROWN
Claimant short name:
BROWN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112968
Motion number(s):
M-75919
Cross-motion number(s):

Judge:
JUDITH A. HARD
Claimant’s attorney:
Geneo Brown, 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 23, 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.[1] Claimant further requests that this matter be scheduled for trial. Defendant opposes the motion for various reasons, including technical insufficiencies, and requests that it be denied in its entirety. Although the motion is technically defective, the Court will nonetheless address the substance of claimant’s request for relief.

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 dismissed 93 NY2d 1000 [1999]). A review of the claim in this case reveals that claimant is alleging negligence and false imprisonment against defendant, arising out of multiple transfers to and from various correctional facilities without due process. At one such correctional facility, claimant alleges to have been held in a psychiatric observation cell for two days and an isolation room for approximately 30 days, without legitimate cause. The Court finds that the claim fails to rise to the level of grievous forfeiture or loss of a fundamental right, which would warrant the assignment of counsel.

By Order of Hon. Richard E. Sise, Presiding Judge filed on November 15, 2006, the Court denied claimant’s request for a reduction or waiver of the filing fee. Inasmuch as the filing fee has been addressed, the continued prosecution of this matter does not require the claimant to pay any additional costs or fees.

Based on the foregoing, claimant’s motion for an order granting him permission to proceed as a poor person and for the assignment of counsel is denied, as is claimant’s request that the Court schedule this matter for trial. This matter will be scheduled for trial as soon as practicable, in accordance with 22 NYCRR §206.13.



March 23, 2009
Albany, New York

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


Papers Considered:

1. Notice of Motion for Assignment of Counsel and Readiness for Trial, dated November 18, 2008, and Affidavit in Support of Assignment of Counsel and Readiness for Trial, sworn to by claimant on November 18, 2008;

2. Affirmation of Roberto Barbosa, AAG, in Opposition to Claimant’s Motion for Assignment of Counsel and Readiness for Trial, dated December 29, 2008;

3. “Affirmation in Reply” of Claimant, dated January 2, 2009.

Filed Papers: Claim, filed November 1, 2006; Order of Hon. Richard E. Sise, Presiding Judge, filed on November 15, 2006; Verified Answer, filed November 30, 2006.




[1].The Court has designated the motion as such based upon claimant’s application.