New York State Court of Claims

New York State Court of Claims
FRAISER v. THE STATE OF NEW YORK, # 2017-040-086, Claim No. 129388, Motion No. M-90509

Synopsis

Pro se Claimant's Motion for poor person status and assignment of counsel denied.

Case information

UID: 2017-040-086
Claimant(s): MARCUS FRAISER 15B0863
Claimant short name: FRAISER
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 129388
Motion number(s): M-90509
Cross-motion number(s):
Judge: CHRISTOPHER J. McCARTHY
Claimant's attorney: Marcus Fraiser, Pro Se
Defendant's attorney: ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
By: Sean B. Virkler, Esq., AAG
Third-party defendant's attorney:
Signature date: July 7, 2017
City: Albany
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

For the reasons set forth below, Claimant's Motion seeking poor person status and assignment of counsel pursuant to CPLR 1101 and 1102(a) is denied.

Claimant, Marcus Fraiser, appearing pro se, seeks leave to proceed as a poor person and for assignment of counsel pursuant to CPLR 1101(a). The Claim was filed in the office of the Clerk of the Court on March 3, 2017 and alleges that, between December 22 and December 25, 2016, while he was at Central New York Psychiatric Center, he was given a medication by a nurse, to which he had a known allergy, and he had an allergic reaction to it. Claimant asserts that Defendant was negligent in providing him with that medication.

Attached to the Claim is 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 March 23, 2017, Acting Presiding Judge Richard E. Sise reduced Claimant's filing fee from $50 to $20 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, Oneida County, since that is where the alleged acts occurred. Claimant has failed to establish that he served a copy of this Motion upon the Oneida 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 [1975]; Wills v City of Troy, 258 AD2d 849 [3d Dept 1999], lv dismissed 93 NY2d 1000 [1999]; 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 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 seeking poor person status and assignment of counsel pursuant to CPLR 1101 and 1102(a):

Papers Numbered

Motion for Assignment of Counsel 1

Affirmation in Opposition 2

Filed Papers: Claim, Answer