Claimant's motion for assignment of counsel denied. Notice of motion was not served on the Dutchess County attorney as required by CPLR 1101 (c).
|Claimant(s):||PHILLIP A. DODSON #14B0182|
|Claimant short name:||DODSON|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||PHILLIP A. DODSON, Pro se|
|Defendant's attorney:||LETITIA JAMES, Attorney General
of the State of New York
By: Heather R. Rubinstein, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 23, 2021|
|See also (multicaptioned case)|
Claimant, an individual currently incarcerated in a State correctional facility, filed this claim alleging that his constitutional rights were violated in connection with an assault by correction officers at Green Haven Correctional Facility (CF) on April 6, 2019. Claimant now moves for the assignment of counsel to represent him at the trial of this claim. Defendant opposes the motion.
As an initial matter, claimant avers in his affidavit of service that he served the motion papers upon the Chief Clerk of the Court of Claims and the Attorney General, but the affidavit of service does not demonstrate that motion papers were served on the county attorney in the county where the action is triable, as required by the CPLR (see CPLR 1101 [c] ["if an action has already been commenced, notice of the motion (to proceed as a poor person) shall be served on all parties, and notice shall also be given to the county attorney in the county in which the action is triable"]).(1) The Dutchess County Attorney was copied on correspondence from the Clerk of the Court to claimant regarding the calendaring of his motion (see Fazzone Correspondence, dated Aug. 4, 2021), and a Senior Assistant County Attorney for Dutchess County advised the Court in response that the "records show [the Dutchess County Attorney's Office] is not in receipt of [claimant's] motion papers," and therefore that the Dutchess County Attorney takes "no position" on the motion (Wolf Correspondence, dated Aug. 9, 2021). The failure to serve the motion papers on the county attorney in the county in which the claim is triable is fatal to an application for assigned counsel (see Senor v Behrle, 63 AD3d 1454, 1455 [3d Dept 2009]; Sebastiano v State of New York, 92 AD2d 966 [3d Dept 1983]; Matter of Stanley v Property Clerk of Police Dept. of Town of Ramapo, 63 AD2d 970, 970 [2d Dept 1978]). Therefore, claimant's failure to comply with CPLR 1101 (c) and serve the Dutchess County Attorney with notice of his motion for assignment of counsel renders his application defective, and claimant's motion is denied on that ground.
Accordingly, it is
ORDERED, that claimant's motion number M-97051 is hereby DENIED.
September 23, 2021
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. Amended Claim No. 133505, filed October 30, 2020;
2. Verified Answer, filed August 7, 2019;
3. Notice of Motion to File for the Appointment of Counsel, dated July 29, 2021;
4. Motion for the Appointment of Counsel, dated July 29, 2021;
5. Declaration of Phillip Dodson in Support of Claimant's Motion for the Appointment of Counsel, sworn to July 29, 2021;
6. Brief in Support of Claimant's Request to Appoint Counsel, verified July 29, 2021;
7. Affidavit of Service of Phillip Dodson, sworn to July 29, 2021;
8. Correspondence of Eileen F. Fazzone, Chief Clerk of the New York State Court of Claims, dated August 4, 2021;
9. Correspondence of Elizabeth M. Wolf, Senior Assistant County Attorney, County of Dutchess, dated August 9, 2021;
10. Affirmation of Heather R. Rubinstein, AAG, in Opposition to Motion for Assignment of Counsel, dated September 8, 2021.
1. The claim would be triable in Dutchess County inasmuch as the claim alleges that the alleged assault occurred at Green Haven CF, which is located in Stormville, New York, in Dutchess County.