New York State Court of Claims

New York State Court of Claims

MOSS v. THE STATE OF NEW YORK, #2009-040-015, Claim No. 116134, Motion No. M-76007


Synopsis


Motion for poor person status and assignment of counsel denied.

Case Information

UID:
2009-040-015
Claimant(s):
KENNETH MOSS, 81-B-0836
Claimant short name:
MOSS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
116134
Motion number(s):
M-76007
Cross-motion number(s):

Judge:
CHRISTOPHER J. MCCARTHY
Claimant’s attorney:
Kenneth Moss, Pro Se
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New YorkBy: Paul F. Cagino, Esq., AAG
Third-party defendant’s attorney:

Signature date:
January 23, 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, Kenneth Moss, appearing pro se, seeks leave to proceed as a poor person and for assignment of counsel pursuant to CPLR § 1101(a). The Claim was filed in the office of the Clerk of the Court on November 28, 2008 and alleges that, on November 30, 2007, Claimant was assaulted by a correction officer in the Special Housing Unit frisk area at Bare Hill Correctional Facility located in Malone, New York.

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 December 15, 2008, Presiding Judge Richard E. Sise reduced Claimant’s filing fee from $50 to $40 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. However, it appears that he served the Jefferson County Attorney, the county attorney of the county where he is currently incarcerated not where the claim accrued. 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 23, 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


Notice of Motion,

Petition, Affidavit
& Attachments 1


Filed Papers: Claim