Pro se Claimant's Motion for a trial preference and poor person status denied.
|Claimant short name:||OLDHAM|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CHRISTOPHER J. McCARTHY|
|Claimant's attorney:||Darrel Oldham, Pro Se|
|Defendant's attorney:||ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
By: Paul F. Cagino, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||July 7, 2017|
|See also (multicaptioned case)|
For the reasons set forth below, the Motion of pro se Claimant, Darrel Oldham, for a trial preference and for poor person status and assignment of counsel pursuant to CPLR §§ 1101 and 1102(a) is denied.
This pro se Claim, which was filed with office of the Clerk of the Court on September 25, 2014, alleges a cause of action for wrongful confinement, which arose at Franklin Correctional Facility (hereinafter, "Franklin").
The Claim asserts that Claimant was wrongfully confined for a period of 22 days. Claimant alleges that, on May 27, 2014, he was issued a misbehavior report charging him with violating three specific prison rules on May 25, 2014 that was signed by a correction officer. A disciplinary hearing was commenced on May 29, 2014, Claimant requested that a witness appear and testify, and the Hearing Officer denied his request without a reason being offered for the refusal (Claim, ¶ 5). Claimant was found guilty of the charges at a Tier II disciplinary hearing (id., ¶ 8). Claimant asserts that he was denied due process at the Tier II hearing because of the failure to present the witness or explain why the witness was refused (id., ¶ 7). Claimant filed an administrative appeal and, on June 14, 2014, was advised that the hearing officer's determination had been modified by reducing the length of the penalties imposed (id., ¶ 10). Claimant asserts that he filed an Article 78 petition on July 8, 2014 challenging the determination (id., ¶ 11) and that, on September 16, 2014, he received a memorandum from the Franklin superintendent informing him that the May 25, 2014 incident was expunged and removed from his disciplinary file (id., ¶ 13).
Claimant now seeks a trial date pursuant to CPLR 3403(a)(3). This Claim is on the Court's unassigned (prisoner pro se) calendar in accordance with the Uniform Rules for the Court of Claims (see 22 NYCRR § 206.3[c]). Such claims are placed on the trial calendar in due course by filing date; meaning older claims are tried first. In addition, filing of a Note of Issue and Certificate of Readiness is not required for prisoner pro se claims (22 NYCRR § 206.12[A]).
Trial preferences are governed by CPLR 3403(a), which provides as follows:
Civil cases shall be tried in the order in which notes of issue have been filed, but the following shall be entitled to a preference:
1. an action brought by or against the state, or a political subdivision of the state, or an officer or board of officers of the state or a political subdivision of the state, in his or its official capacity, on the application of the state, the political subdivision, or the officer or board of officers;
2. an action where a preference is provided for by statute; and
3. an action in which the interests of justice will be served by an early trial.
4. in any action upon the application of a party who has reached the age of seventy years.
5. an action to recover damages for medical, dental or podiatric malpractice.
6. an action to recover damages for personal injuries where the plaintiff is terminally ill and alleges that such terminal illness is a result of the conduct, culpability or negligence of the defendant.
This is an action brought against the State of New York and, thus, Claimant may believe that he is entitled to a trial preference pursuant to CPLR 3403(a)(1). However, all of the actions in the Court of Claims are against the State of New York and/or certain public authorities. It would be impossible for the Court to give all claimants a trial preference, thus, trials of the cases on the Court's unassigned (prisoner pro se) calendar are scheduled in due course by filing date, so the older Claims are tried first. Moreover, "a trial preference should be granted sparingly and only where extraordinary circumstances command such a result" (Smith v Schabel, 34 AD2d 603, 604 [3d Dept 1970]). Here, Claimant has failed to show why the interests of justice would be served, given the facts of this case, by favoring his Claim over those of other inmates whose claims are awaiting trial on the Court's prisoner pro se calendar. Therefore, the request for a trial date is denied.
The Court will now address Claimant's request for poor person status and assignment of counsel. 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 October 7, 2014, Acting Presiding Judge Richard E. Sise reduced Claimant's filing fee from $50 to $25 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, UID No. 2005-028-534 [Ct Cl, Sise, P.J., June 21, 2005]; Jabbar v State of New York, UID No. 2006-044-504 [Ct Cl, Schaewe, J., Oct. 20, 2006]). 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 the Franklin County Attorney. 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 ; Wills v City of Troy, 258 AD2d 849 [3d Dept 1999], lv dismissed 93 NY2d 1000 ; Brabham v State of New York, 13 Misc 3d 1222[A] [Ct Cl 2006]; Hines v State of New York, supra; Jabbar v State of New York, 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, supra; Wills v City of Troy, supra). Therefore, based upon the foregoing, Claimant's request to be granted poor person status and assignment of counsel is also denied.
July 7, 2017
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read and considered by the Court on Claimant's Motion for a trial preference and for poor person status and assignment of counsel:
Notice of Motion, & Exhibits attached 1
Letter to Court in Opposition to Motion
From Assistant Attorney General Paul F. Cagino 2
Filed Papers: Claim, Answer