Claimants motions to file a late claim and for poor person status were denied as a claim regarding the same subject matter was timely and properly served, and claimant received a fee reduction in doing so.
|Claimant(s):||LEONARD ROBINSON, 16 B 1974|
|Claimant short name:||ROBINSON|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Motion number(s):||M-92762, M-92763|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Leonard Robinson, Pro Se|
|Defendant's attorney:||Honorable Barbara D. Underwood, Attorney General
By: Anthony Rotondi, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 7, 2018|
|See also (multicaptioned case)|
Claimant, proceeding pro se, seeks leave to file a late claim pursuant to Court of Claims Act § 10 (6) (motion no. M-92763), and to proceed as a poor person and for the assignment of counsel (motion no. M-92762).
Claimant, an inmate in the custody of the Department of Corrections and Community Supervision (DOCCS), was allegedly assaulted by other inmates at Great Meadow Correctional Facility on February 2, 2017, June 17, 2018 and June 27, 2018. On August 17, 2018 claimant filed a claim alleging DOCCS knew or should have known there was a substantial risk of harm to the claimant by virtue of the prior assaults against him and complaints that had been made in relation thereto. The allegations in the filed claim are unclear, however, with respect to whether the claimant seeks damages for the injuries he sustained in the February 2, 2017 assault, or whether this assault was alleged merely as a basis for asserting that DOCCS had notice of the risk of future harm.
In opposition to the instant motion, defendant acknowledges that on August 20, 2018 a claim was timely and properly served on the Office of the Attorney General with respect to the incidents that allegedly occurred on June 17, 2018 and June 27, 2018. As a result, defendant opposes the late claim motion only to the extent claimant seeks permission to file a late claim arising from the February 2, 2017 incident. In reply, claimant clarifies that he
" 'never' filed a motion for permission to file a late claim as it pertains to February 2, 2017, incident" (claimant's statement in reply dated Sept. 18, 2018, ¶ 2). Inasmuch as claimant does not seek permission to file a late claim with respect to the February 2, 2017 incident, and a claim has been timely filed and served with respect to the June 17, 2018 and June 27, 2018 incidents, the instant application for late claim relief is denied as unnecessary.
With respect to claimant's motion to proceed as a poor person and for the assignment of counsel, the motion is denied. Claimant has received the benefit of a filing fee reduction by Order dated August 23, 2018 and no additional fees are required. To the extent claimant seeks the assignment of counsel, he failed to serve the County Attorney as required (see CPLR 1101 [c]). In addition, this is not a proper case for the assignment of counsel because claimant is not facing a grievous forfeiture or loss of a fundamental right implicating his liberty interests (Matter of Smiley, 36 NY2d 433, 437 ; see also Matter of Giovanni S. [Jasmin A.], 89 AD3d 252 [2d Dept 2011]; Planck v County of Schenectady, 51 AD3d 1283 [3d Dept 2008]; Wills v City of Troy, 258 AD2d 849 [3d Dept 1999], lv dismissed 93 NY2d 1000 ).
Accordingly, claimant's motion nos. M-92763 and M-92762 are denied.
December 7, 2018
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims