New York State Court of Claims

New York State Court of Claims
TRUCCHIO v. THE STATE OF NEW YORK, # 2013-048-101, Claim No. 112596, Motion No. M-82864


The Court denied Claimant's motion seeking the assignment of counsel and to be appointed a guardian ad litem.

Case information

UID: 2013-048-101
Claimant(s): PAUL TRUCCHIO
Claimant short name: TRUCCHIO
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 112596
Motion number(s): M-82864
Cross-motion number(s):
Claimant's attorney: PAUL TRUCCHIO, Pro Se
Defendant's attorney: HON. ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
By: Thomas Trace, Esq.
Senior Attorney
Third-party defendant's attorney:
Signature date: June 17, 2013
City: Albany
Official citation:
Appellate results:
See also (multicaptioned case)


Paul Trucchio commenced this action alleging assault and battery while an inmate at the Gouverneur Correctional Facility in St. Lawrence County under the supervision of the Department of Correctional Services (DOCS).(1) Specifically, Claimant contends that on August 17, 2005, during a medical trip outside the facility, certain Correction Officers repeatedly punched and kicked Claimant, among other things, causing Claimant to sustain certain injuries.(2) Claimant has now moved for the assignment of counsel, contending that he is incompetent and unable to represent himself (see Notice of Motion). Defendant opposes Claimant's motion.

In support of his application, Claimant asserts that he has a history of mental illness and was found incompetent to stand trial with respect to certain criminal charges in the State of Florida. Claimant, who is currently in the custody of the Florida Department of Corrections,(3)

states that, upon being admitted to Florida State Prison, he was evaluated and sent to a mental health facility prison. Claimant asserts that, although he entered a plea of guilty in the Florida criminal proceeding, he is moving to withdraw that plea based on his own incompetence and based on the ineffective assistance of counsel. In support of his application, Claimant attaches a "Competency Report," dated February 18, 2008, authored by Lori J. Butts, J.D., Ph.D., which bears case number 07-016775CF10A. In that report, Dr. Butts opines that, based on her psychological evaluation and review of certain records, Claimant is not competent to proceed in this matter. Claimant was diagnosed with, among other things, bipolar disorder (see Competency Report, dated February 18, 2008, attached to Claimant's motion). In support of his motion, Claimant also attaches a document purporting to be an Order of the Circuit Court of the 17th Judicial Circuit, in Broward County, Florida, dated March 3, 2008, which, among other things, adjudged Claimant to be incompetent to proceed with the trial of case number 07-016775CF10A.

In opposition to Claimant's motion, Defendant argues, among other things, that Claimant's motion is not in proper form as it lacks the required notice of motion and a sworn affidavit (see CPLR 2214). Defendant also argues that the motion should be denied based on the lack of evidence that the St. Lawrence County Attorney's Office was served with the motion. Substantively, Defendant argues that the Claim in this matter is not sufficiently complex to justify the assignment of counsel.

While Claimant's motion requests the assignment of counsel, it appears that the main relief Claimant seeks is the appointment of a guardian ad litem based on his mental condition. CPLR 1201 provides that "[a] person shall appear by his guardian ad litem if he is . . . an adult incapable of adequately prosecuting or defending his rights." A guardian ad litem may be appointed by a court at any stage of an action (see CPLR 1202 [a]) and, while such an application may be made by a party to the action, a friend or relative of the alleged incompetent person may also move to be appointed (see CPLR 1202 [a] [1] -[3]).

Here, Claimant failed to present evidence tending to show that he is currently incapable of prosecuting or defending his rights in this action (see Roach v Benjamin, 78 AD3d 468, 468-469 [1st Dept 2010]). The Competency Report, dated almost five years before the instant motion, states that Claimant's "prognosis for significant improvement is good if he were maintained on psychotropic medication"; that Claimant "should be able to achieve psychiatric stabilization within a relatively short period of time"; and that Claimant "should be able to be considered competent to proceed once psychiatrically stabilized" (Competency Report, dated February 18, 2008, attached to Claimant's motion). As Claimant has not presented evidence of his current condition, the Court is unable to determine that he is incapable of prosecuting this action. However, in the event that "new evidence suggests that [Claimant] is incapable of adequately prosecuting his rights, [this Court] is free to revisit the issue of whether the appointment of a guardian ad litem is appropriate" (Rapoport v Cambridge Dev., LLC, 51 AD3d 530, 531 [1st Dept 2008]).

To the extent that Claimant seeks the appointment of counsel, CPLR 1101 (a) requires that a motion for permission to proceed as a poor person must be supported with

an affidavit setting forth the amount and sources of his or her income and listing his or her property with its value; that he or she is unable to pay the costs, fees and expenses necessary to prosecute or defend the action or to maintain or respond to the appeal; the nature of the action; sufficient facts so that the merit of the contentions can be ascertained; and whether any other person is beneficially interested in any recovery sought and, if so, whether every such person is unable to pay such costs, fees and expenses.

Furthermore, where, as here, an action has already been commenced, CPLR 1101 (c) requires that Claimant's motion "shall be served on all parties, and notice shall also be given to the county attorney in the county in which the action is triable."

In support of his application, Claimant fails to set forth any facts regarding either his income or information which would permit the Court to ascertain the merits of his Claim. Furthermore, there is no indication that the St. Lawrence County Attorney was served with notice of Claimant's motion. Thus, the Court concludes that Claimant's motion fails to comply with CPLR 1101 (c) and must be denied (see Senor v Behrle, 63 AD3d 1454, 1455 [3d Dept 2009]).

Accordingly, Claimant's Motion No. M-82864 is denied.

June 17, 2013

Albany, New York


Judge of the Court of Claims

The following papers were read and considered by the Court:

Claim, filed August 3, 2006;

"Motion to Appoint Counsel, and/or, Order Claimant Produced for Competency (Psychiatric) Evaluation and Hearing on Said Matters," filed January 7, 2013, with attached Competency Report, dated February 18, 2008 and "Order Adjudging Defendant Incompetent to Proceed and Commitment to the Department of Children and Families," dated March 3, 2008;

Affirmation of Thomas Trace, Esq., dated February 6, 2013.

1. DOCS is now known as the Department of Corrections and Community Supervision (DOCCS) (see L 2011, ch 62, pt C, subpt A, 4, eff. March 31, 2011). Inasmuch as the Claim relates to acts that occurred prior to the name change, this Decision will refer to the Executive Agency by its former name.

2. By Decision and Order dated December 20, 2006, Court of Claims Judge Diane L. Fitzpatrick determined that the allegations of assault on August 17, 2005 were timely made, but dismissed the other allegations in paragraphs 5-17, 52-201 and 210-215 of the Claim as untimely (see Trucchio v State of New York, UID No. 2006-018-550 [Ct Cl, Fitzpatrick, J., Dec. 20, 2006]).

3. (see [accessed June 7, 2013]).