Claimant's motion for assignment of counsel denied. Claimant failed to serve notice of motion on the County Attorney as required by CPLR 1101 (c). Motion for reduction of filing fee denied as moot.
|Claimant short name:||WILLIAMS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||DEANDRE WILLIAMS, Pro se|
|Defendant's attorney:||No Appearance|
|Third-party defendant's attorney:|
|Signature date:||January 7, 2021|
|See also (multicaptioned case)|
Claimant, an individual currently incarcerated in a State correctional facility, filed this claim seeking compensation for eighteen days of allegedly wrongful pre-hearing confinement at Green Haven Correctional Facility (CF) in August 2019. Claimant now moves for assignment of counsel and the reduction of filing fees. Defendant has not responded to the motion.
In support of the motion for poor person relief and assignment of counsel, claimant avers that he requires the requested relief because he suffers from "a VISIBILITY disability which is recognized under the Amercan[s] With Disabilities Act . . . and Rehabilitation Act . . . which prevents [him] from SEEING, CLAIMANT IS LEGALLY BLIND and requires that [he] be provided with counsel to assist [him] in this proceeding" (Williams Affidavit in Support, ¶ 2). Claimant further avers that he requires poor person relief because he has no source of income that would allow him to pay the costs associated with prosecuting his claim, and there is no one who is able to pay those costs on his behalf (see id. at ¶¶ 4-8). Attached to claimant's affidavit is an unsworn statement signed by claimant in which he states that an eye surgeon at Sullivan CF declared him legally blind on or about March 11, 2020 due to a "botched cataract surgery" that was performed "in 2015-16 and the negligence [claimant had] been subjected to since then" (id., Exhibit A). Claimant further states that he was unable to include copies of his medical records as proof of his disability because he is "being held in the infirmary at Sullivan [CF] and [he is] denied to go to population due to retaliations and malfeasance and even denied to view and copy [his] medical records" (id.). Claimant also states that he is "unable to make copies without help" because he is "being held under a false $23,000 . . . debt by [the Department of Corrections and Community Supervision] with no reciepts [sic] or anything to prove this debt is valid" (id.). Claimant states that due to his disability and his financial situation, he requires the assignment of counsel because he "can barely see and trying to read etc causes alot [sic] of pain and headaches as well as taking a long time" (id.).
Claimant's affidavit of service states that he served his notice of motion for assignment of counsel upon the Court of Claims and the Attorney General, but it does not state or otherwise demonstrate that the motion was served on the county attorney in the county where the action is triable, as required by CPLR 1101 (c). This omission is fatal to an application for assigned 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 [Ct Cl 1979]; Pettus v State of New York, UID No. 2006-028-579 [Ct Cl, Sise, P.J., July 27, 2006]). Claimant's failure to comply with CPLR 1101 (c) renders his application defective, and his motion is denied on that ground.
Finally, to the extent claimant moves for a reduced filing fee, the motion will be denied as moot inasmuch as claimant was previously granted a reduction of the filing fee (see Order of Hon. Richard E. Sise, dated October 10, 2019; see also 22 NYCRR § 206.5-b).
Accordingly, it is
ORDERED, that claimant's motion number M-96187 is DENIED.
January 7, 2021
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. Claim No. 133666, filed September 19, 2019;
2. Verified Answer, filed November 18, 2019;
3. Notice of Motion to Proceed as a Poor Person Pursuant to C.P.L.R. §§1101, 1102 and for the Assignment of Counsel Pursuant to the Americans with Disabilities Act, dated October 9, 2020;
4. Affidavit in Support of Notice to Proceed as a Poor Person Pursuant to C.P.L.R. §§ 1101, 1102 and for the Assignment of Counsel Pursuant to the Americans with Disabilities Act, sworn to October 9, 2020, with Exhibit A;
5. Affidavit of Service of DeAndre Williams, sworn to October 9, 2020;
6. Order of Hon. Richard E. Sise, dated October 10, 2019.