New York State Court of Claims

New York State Court of Claims

JOSEPH v. THE STATE OF NEW YORK, #2009-032-139, Claim No. 116552, Motion No. M-76458


Synopsis



Case Information

UID:
2009-032-139
Claimant(s):
RICARDO JOSEPH
Claimant short name:
JOSEPH
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
116552
Motion number(s):
M-76458
Cross-motion number(s):

Judge:
JUDITH A. HARD
Claimant’s attorney:
Ricardo Joseph, 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:
September 2, 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. Defendant opposes the motion on the basis that: (1) the claim is not a complex matter which would warrant the Court’s exercise of discretion by assigning an attorney; (2) the instant matter does not involve a grievous forfeiture or loss of a fundamental right; and (3) Claimant has failed to provide notice to the county attorney. For the reasons set forth below, Claimant’s application is denied.


CPLR § 1101 (c) requires that notice of an application for permission to proceed as a poor person and for the assignment of counsel must be given to the county attorney in the county in which the action is triable. The papers submitted by Claimant do not demonstrate that his motion was served upon the county attorney. Accordingly, Claimant’s application is defective and must be denied (see Sebastiano v State of New York, 92 AD2d 966 [3d Dept 1983]; Harris v State of New York, 100 Misc 2d 1015, 1016-1017 [Ct Cl 1979]; Pettus v State of New York, UID #2006-028-579, Claim No. 109717, Motion No. M-71735, Sise, P.J. [July 27, 2006]).

Even if Claimant had properly served the motion on all who are entitled to notice, he has not asserted facts that would warrant poor person status and the assignment of counsel. 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]; Planck v County of Schenectady, 51 AD3d 1283 [3d Dept 2008]).

A review of the claim in this case reveals that Claimant is seeking money damages from an alleged assault on April 17, 2008. It does not demonstrate that Claimant is facing a loss of liberty or grievous forfeiture, which would warrant the assignment of counsel (see Morgenthau v Garcia, 148 Misc 2d 900 [Sup Ct, New York County 1990]).

By Order of Hon. Richard E. Sise, Presiding Judge, filed on March 27, 2009, the Court granted Claimant’s request for a reduction of the filing. 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. 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).

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.


September 2, 2009
Albany, New York

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


Papers Considered:


1. Notice of Motion to Proceed As Poor Person Pursuant to CPLR 1101(f), and Affidavit in Support of Application Pursuant to CPLR 1101(f), sworn to by Claimant on March 6, 2009;

2. Affirmation of Roberto Barbosa, AAG, in Opposition to Claimant’s Motion for Appointment of Counsel and to Proceed as Poor Person, dated April 2, 2009;

3. Reply to Defendant’s Affirmation in Opposition to Claimant’s Motion for Appointment of Counsel and to Proceed as Poor Person, sworn to by Claimant on April 15, 2009.

Filed Papers: Claim, filed March 12, 2009; Order of Hon. Richard E. Sise, Presiding Judge, filed on March 27, 2009; Verified Answer, filed April 6, 2009.