New York State Court of Claims

New York State Court of Claims
GONZALEZ v. STATE OF NEW YORK, # 2019-040-027, Claim No. 127820, Motion No. M-93313

Synopsis

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

Case information

UID: 2019-040-027
Claimant(s): LUIS GONZALEZ
Claimant short name: GONZALEZ
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 127820
Motion number(s): M-93313
Cross-motion number(s):
Judge: CHRISTOPHER J. McCARTHY
Claimant's attorney: Luis Gonzalez, #14A3662, Pro Se
Defendant's attorney: LETITIA JAMES
Attorney General of the State of New York
By: Christina Calabrese, Esq., AAG
Third-party defendant's attorney:
Signature date: March 27, 2019
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.

This pro se Claim was filed in the office of the Clerk of the Court on April 20, 2016 and alleges that, on February 8, 2015 at 6:30 p.m. at Bare Hill Correctional Facility, Claimant was "walking in the vicinity of the Annex compound gate" when he slipped and fell on an accumulation of ice and snow (Claim, 3). He asserts that the snow and ice was not shoveled or sanded and constituted a dangerous condition (id., 4). He further asserts that Defendant knew or should have known of the dangerous condition (id., 5). Claimant also asserts that he did not receive appropriate medical care for the injury to his ankle. He states that x-rays were not taken until three days after the accident and that he did not see a doctor until February 17, 2015, when his right ankle, which was fractured in three places, was placed in a cast (id., 7, 8, 9, 11).

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 April 29, 2016, Acting Presiding Judge Richard E. Sise reduced Claimant's filing fee from $50 to $30 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 [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.

March 27, 2019

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

Notice of Motion, Affidavit in Support

& Exhibits Attached 1

Filed Papers: Claim, Answer