New York State Court of Claims

New York State Court of Claims

MEDINA v. THE STATE OF NEW YORK, #2009-032-150, Claim Nos. 111093, 114230, Motion No. M-76784


Synopsis



Case Information

UID:
2009-032-150
Claimant(s):
ANTHONY MEDINA
Claimant short name:
MEDINA
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111093, 114230
Motion number(s):
M-76784
Cross-motion number(s):

Judge:
JUDITH A. HARD
Claimant’s attorney:
Anthony Medina, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo, NYS Attorney General
By: Joseph F. Romani, Assistant Attorney General, Of Counsel
Third-party defendant’s attorney:

Signature date:
October 13, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This Decision and Order will address a motion filed by Claimant (M-76784) in two claims. The first claim (Claim No. 111093) was filed on July 1, 2005, and alleges personal injuries received as a result of an assault by correction officers employed at Southport Correctional Facility on February 21, 2005, and the loss or destruction of Claimant’s personal property on February 16, 2005. The second claim (Claim No. 114230) was filed on September 13, 2007, and alleges that Defendant, through its agents, improperly and without authorization released Claimant’s medical records to the Office of the Attorney General, in connection with the legal defense of an unrelated Article 78 proceeding initiated by Claimant.
The motion filed by Claimant, an inmate appearing pro se, requests that this Court issue, in both claims, an order appointing him counsel, directing his trial be conducted via video-conference, and directing court personnel and defense counsel to enlarge the font to size 14 or larger on documents filed, exchanged and remitted to Claimant.
[1]
Defendant opposes Claimant’s request for the assignment of counsel, takes no position with respect to Claimant’s request for his trial to be by video-conference, and agrees to provide larger print size paperwork to Claimant in the future. For the reasons set forth herein below, the Court grants Claimant’s motion in part and denies it in part.
Claimant alleges in his motion that he suffers from physical and mental health issues, including bipolar and antisocial anxiety disorders, which prevent him from properly interacting with other people and prosecuting his claims. He further alleges that as a result of his significant visual impairment (he is blind in one eye and has blurred vision in the other eye), he cannot distinguish details in written material at a distance of more than a few inches, and requires discovery and other documents regarding his claims to be in a font of size 14 or larger. Finally, Claimant alleges that as a result of his physical and mental difficulties, an appearance at Elmira Correctional Facility for his trials would be dangerous to his physical well being.
ASSIGNMENT OF COUNSEL
CPLR § 1101 (c) requires that notice of an application for the assignment of counsel must be given to the county attorney in the county in which the action is triable. The papers initially submitted by Claimant do not demonstrate that his motion was served upon the county attorney. An Affidavit of Service received by the Court on September 2, 2009, reflects that Claimant served his motion upon the county attorney on August 29, 2009, nearly two months after the return date of the motion (July 1, 2009), which is untimely. 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. 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]; Planck v County of Schenectady, 51 AD3d 1283 [3d Dept 2008]).
The Court has reviewed the allegations made in Claim Nos. 111093 and 114230, and find that they do 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, NY County 1990]).
In light of the foregoing, Claimant’s request for the assignment of counsel is denied.
VIDEO-CONFERENCING
Claimant’s request for the trials of his claims to be conducted via video- conference is premature, as neither trial has yet been scheduled. At the time each trial is scheduled, Claimant may renew his request and the Court will then consider whether special circumstances exist which would warrant conducting the same via video-conference.
Accordingly, Claimant’s request for the trials of his claims to be conducted via video-conference is denied, without prejudice.
LARGER SIZE PRINT
In support of Claimant’s request that the documents provided to him by the Court and counsel be created in a font size of at least 14 point, Claimant annexed the following items: 1) A document from A. Bartlett, the Deputy Superintendent for Program Services, to S. Hodge, the C.O. Law Library Supervisor, dated December 29, 2008, directing that legal material requested by Claimant be enlarged on the copy machine; 2) a document entitled “Request and Report of Consultation,” dated December 22, 2008, which indicates that Claimant is to use a magnifying glass; and 3) a document entitled “NYSDOCS Request & Report of Consultation” dated March 13, 2009, indicating that Claimant has a loss of vision and requesting that he be allowed to continue reading documents in large print and to use a magnifying glass.
Defendant indicates that it believes Claimant’s request for a larger font size on future court submissions and answering papers is a reasonable request for accommodation, and agrees to “make every possible effort to provide larger print size paperwork to claimant in the future” (Affirmation of Joseph F. Romani, AAG, in Opposition to Appointment of Counsel and Response to Request for Accommodations, dated June 17, 2009, at paragraph 6). The Court agrees that Claimant’s request is reasonable and will use a 14-point type for all documents it creates. As set forth in the Decision and Order of Hon. Catherine C. Schaewe, with respect to Claimant’s request for the same relief in Claim No. 111940 (Motion No. M-76785), the Court expects that Defendant will do the same.
Accordingly, the Court grants Claimant’s request for use of a larger size print on documents filed, exchanged and remitted to him.
CONCLUSION
For the reasons set forth above, the Court denies the portion of Claimant’s motion which seeks the assignment of counsel; denies, without prejudice, the portion of Claimant’s motion which requests that Claimant be allowed to appear by video-conference at his trials; and grants the portion of Claimant’s motion regarding the use of a larger type print. The Clerk of the Court and Defendant are directed to use 14-point type for all documents generated by their offices which concern Claim Nos. 111093 and 114230.



October 13, 2009
Albany, New York

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

Papers Considered:

1. Notice of Motion for the Appointment of Counsel and for Accommodations, dated May 26, 2009, and Affidavit in Support of Motion for the Appointment of Counsel and Accommodations, sworn to by Anthony Medina on May 27, 2009, with Exhibits;
2. Affirmation of Joseph F. Romani, AAG, in Opposition to Appointment of Counsel and Response to Request for Accommodations, dated June 17, 2009.
Filed Papers on Claim No. 111093: Claim, filed on July 1, 2005; Order of Hon. Richard E. Sise, filed July 20, 2005; Verified Answer, filed on August 3, 2005.
Filed Papers on Claim No. 114230: Claim filed on September 13, 2007; Order of Hon. Richard E. Sise, filed October 4, 2007; and Verified Answer, filed on October 15, 2007.

[1].
Claimant requested this relief in Claim No. 111940 which was decided by Hon. Catherine C. Schaewe (Motion No. M-76785).