|Claimant(s):||EMERALD VAN DUYNE|
|Claimant short name:||VAN DUYNE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||The caption has been amended sua sponte to reflect the State of New York as the only proper defendant.|
|Motion number(s):||M-78395, M-78396|
|Judge:||JUDITH A. HARD|
|Claimant's attorney:||Emerald Van Duyne, Pro Se|
|Defendant's attorney:||Hon. Andrew M. Cuomo, NYS Attorney General
By: Michael C. Rizzo, Assistant Attorney General, Of Counsel
|Third-party defendant's attorney:|
|Signature date:||September 14, 2010|
|See also (multicaptioned case)|
Claimant moves this Court for an order granting him permission to proceed as a poor person and for the assignment of counsel. Defendant has not submitted a response to claimant's motion, but has moved, separately, for an order pursuant to CPLR 3211 (a)(2)(7)(8), dismissing the claim based upon lack of subject matter jurisdiction and personal jurisdiction. Claimant has not submitted a response to defendant's motion. For the reasons set forth below, claimant's motion is denied, defendant's motion is granted, and Claim No. 117793 is dismissed.
The underlying claim alleges defamation against defendant. Specifically, it alleges that claimant was slandered as being a sex offender by the NYS Department of Correctional
Services. Application for Poor Person Status and Assignment of Counsel
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. Claimant has not provided any proof that he has served the same upon the county attorney. Accordingly, his 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 (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]). 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 ; Wills v City of Troy, 258 AD2d 849 [3d Dept 1999], lv dismissed 93 NY2d 1000 ; Planck v County of Schenectady, 51 AD3d 1283 [3d Dept 2008]).
The claim herein reveals that claimant is seeking money damages for alleged defamation. It does not demonstrate that claimant is about to be deprived a liberty or suffer a grievous forfeiture, which would warrant the assignment of counsel (see Morgenthau v Garcia, 148
Misc 2d 900 [Sup Ct, New York County 1990]). Moreover, by Order of Hon. Richard E. Sise, Presiding Judge, filed on June 8, 2010, the Court granted claimant's request for a reduction 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.
Motion to Dismiss
Defendant alleges that the claim should be dismissed because it was served via regular mail. In support of its position, defendant attaches a copy of the envelope in which the claim was served to show that it was served via ordinary mail and not via certified mail, return receipt requested. In addition, defendant alleges that based upon the allegations of the claim, the last date that the claimant alleges to have been defamed by the Division of Parole was December 8, 2008, and that the claim, therefore, is untimely. The Court agrees.
Whether characterized as a claim for an intentional tort or an unintentional tort, the time period for serving the claim upon the Attorney General is 90 days from the date of accrual, unless the claimant, within said time, serves the Attorney General with a written notice of intention to file the claim, in which event the claim would need to be filed and served upon the Attorney General within one year after accrual of the claim for an intentional tort (Court of Claims Act § 10[3-b]) or two years after accrual for an unintentional tort (Court of Claims Act §10 ). Claims and notices of intention to file a claim must be served upon the Attorney General by personal service or certified mail, return receipt requested (Court of Claims Act §11[a]).
Compliance with the filing and service requirements contained in sections 10 and 11 of the Court of Claims Act is a jurisdictional prerequisite to bringing and maintaining an action in the Court of Claims (Buckles v State of New York, 221 NY 418 ), and failure to comply constitutes a fatal jurisdictional defect requiring dismissal (Thomas v State of New York, 144 AD2d 882 [3d Dept 1988]; Finnerty v New York State Thruway Auth., 75 NY2d 721 ; Dreger v New York State Thruway Auth., 177 AD2d 762 [3d Dept 1991], affd 81 NY2d 721 ; Suarez v State of New York, 193 AD2d 1037 [3d Dept 1993]).
As set forth by defendant, the latest date claimant alleges to have been defamed by defendant is December 8, 2008. Accordingly, he would have had to serve either a claim or a notice of intention to file a claim upon the Attorney General within ninety days of December 8, 2008. Defendant states, and claimant does not dispute, that it did not receive service of a claim or a notice of intention to file a claim within said ninety days. Accordingly, the claim is untimely and must be dismissed.
Based upon the foregoing, defendant's motion to dismiss is granted and Claim No. 117793 is dismissed.
September 14, 2010
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
Motion No. M-78396
1. Claimant's Application for Poor Person Status and Assigned Counsel, dated December 3, 2009, and filed on December 11, 2009.
Motion No. M-78395
1. Notice of Motion to Dismiss, and Affidavit of Michael C. Rizzo, AAG, sworn to December 23, 2009, with Exhibit.
Papers Filed: Claim, filed December 11, 2009; Order of Hon. Richard E. Sise, filed June 8, 2010.