New York State Court of Claims

New York State Court of Claims

BLUNT v. THE STATE OF NEW YORK, #2009-040-009, Claim No. 109046, Motion No. M-75749


Synopsis


Request for poor person status denied.

Case Information

UID:
2009-040-009
Claimant(s):
HERMAN BLUNT
Claimant short name:
BLUNT
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109046
Motion number(s):
M-75749
Cross-motion number(s):

Judge:
CHRISTOPHER J. MCCARTHY
Claimant’s attorney:
Herman Blunt, Pro Se
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New YorkBy: Belinda A. Wagner, Esq., AAG
Third-party defendant’s attorney:

Signature date:
January 20, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

For the reasons set forth below, Claimant’s motion seeking poor person status and assignment of counsel is denied.

Claimant, Herman Blunt, appearing pro se, seeks leave to proceed as a poor person and for assignment of counsel pursuant to 28 USC § 1915(E)(1). Practice in Federal Court is governed by Federal Statutes and Rules and practice in New York State Courts, including the Court of Claims, is governed by the Civil Practice Law and Rules (CPLR). For the relief Claimant is seeking, the proper statute is CPLR § 1101(a). The Claim was filed in the office of the Clerk of the Court on March 15, 2004 and alleges that Claimant did not receive proper medical care while incarcerated at Upstate Correctional Facility in Malone, New York for a “joint separation” of his right shoulder from January 8, 2002 to March 26, 2002.

Attached to the Claim was an Affidavit in Support of an application pursuant to CPLR § 1101(f) to reduce the amount of the Court of Claims filing fee. By Order filed March 25, 2004, then Judge Richard E. Sise reduced Claimant’s filing fee from $50 to $30 pursuant to CPLR § 1101(f). Claimant now seeks leave to proceed as a poor person and for assignment of counsel.

Pursuant to CPLR § 1101(c), if an action has been commenced, notice of a poor person motion shall be served on all parties and shall also be given to the county attorney in the county in which the action is triable. Notice to the county attorney is a significant requirement because certain costs may be a county charge (see CPLR 1102; Hines v State of New York, Ct Cl, Claim No. 110624, Motion No. M-69991, June 21, 2005, Sise, P.J. [UID No. 2005-028-534]; Jabbar v State of New York, Ct Cl, Claim No. 112376, Motion Nos. M-72082, M-72223, October 20, 2006, Schaewe, J. [UID No. 2006-044-504]. The action is triable in the county where the claim accrued, in this case, Franklin County, since that is where the alleged acts occurred. Claimant has failed to establish that he served a copy of this motion upon either the New York State Attorney General, counsel for Defendant, or the Franklin County Attorney. Thus, pursuant to CPLR § 1101(c), his motion is defective and must be denied on those grounds (Sebastiano v State of New York, 92 AD2d 966 [3d Dept 1983]; Harris v State of New York, 100 Misc 2d 1015, 1016 [Ct Cl 1979]).

Further, even assuming compliance with CPLR § 1101(c), the motion would still be denied. The assignment of counsel in civil matters is discretionary and is generally denied except in cases involving loss of liberty or grievous forfeiture (Matter of Smiley, 36 NY2d 433 [1975]; Wills v City of Troy, 258 AD2d 849 [3d Dept 1999], lv dismissed 93 NY2d 1000 [1999]; Brabham v State of New York, 13 Misc 3d 1222[A] [Ct Cl 2006]; Hines v State of New York, Ct Cl, Claim No. 110624, Motion No. M-69991, June 21, 2005, Sise, P.J. [UID No. 2005-028-534], supra; Jabbar v State of New York, Ct Cl, Claim No. 112376, Motion Nos. M-72082, M-72223, October 20, 2006, Schaewe, J. [UID No. 2006-044-504], supra). Here, Claimant has failed to establish that the Claim is of sufficient complexity or that it involves such fundamental rights that the Court would be justified in exercising its discretion to appoint an attorney to appear without compensation (see Matter of Smiley, 36 NY2d 433, supra; Wills v City of Troy, 258 AD2d 849, supra).

Therefore, based upon the foregoing, Claimant’s request to be granted poor person status and assignment of counsel is denied.


January 20, 2009
Albany, New York

HON. CHRISTOPHER J. MCCARTHY
Judge of the Court of Claims


The following papers were read on Claimant’s motion for poor person status and assignment of counsel:

Papers Numbered

Motion 1


Affirmation of Assistant Attorney General
Belinda A. Wagner 2


Filed Papers: Claim, Answer