Opinion
# 2013-038-550 Claim No. 121783 Motion No. M-83517
09-04-2013
FREDRICK COLLAZO v. STATE OF NEW YORK and OFFICERS OF THE STATE
Synopsis
Claimant's second motion for appointment of counsel denied. The motion is unsupported by proof of service upon the county attorney, and claimant offers no facts or legal basis for this Court to depart from its prior determination that assignment of counsel at public expense is not warranted on this claim seeking money damages for personal injury.
Case information
UID: 2013-038-550 Claimant(s): FREDRICK COLLAZO Claimant short name: COLLAZO Footnote (claimant name) : Defendant(s): STATE OF NEW YORK and OFFICERS OF THE STATE Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 121783 Motion number(s): M-83517 Cross-motion number(s): Judge: W. BROOKS DeBOW Claimant's attorney: FREDRICK COLLAZO, Pro se ERIC T. SCHNEIDERMAN, Attorney General Defendant's attorney: of the State of New York By: No appearance Third-party defendant's attorney: Signature date: September 4, 2013 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant, an individual currently incarcerated in a State correctional facility, filed the instant claim in which he alleges that he suffered personal injuries as a result of the allegedly negligent and/or intentional conduct of defendant's employees at Upstate Correctional Facility. Claimant's previous motion for assignment of counsel to prosecute this claim was denied (Collazo v State of New York, UID No. 2013-038-524 (Ct Cl, DeBow, J., Apr. 22, 2013). Claimant now moves again for the appointment of counsel to represent him in this claim. No opposition to the motion has been filed with the Clerk of the Court.
As stated in this Court's prior decision, a motion for assignment of counsel at public expense must be served upon the county attorney in the county where the action is triable (see CPLR 1101 [c]), and the failure to so serve such a motion 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, 1016-1017 [Ct Cl 1979]; Pettus v State of New York, UID No. 2006-028-579 [Ct Claims, Sise, P.J., July 27, 2006]). Claimant's motion is once again unsupported by an affidavit of service that demonstrates that this motion was served upon the county attorney in the county where the action is triable. Claimant's failure to comply with CPLR 1101 (c) renders his application defective and the motion for assignment of counsel is denied on that ground.
Even if the motion had been properly served on the county attorney, claimant's second motion for appointment of counsel offers no facts or legal basis for this Court to depart from its prior determination that assignment of counsel at public expense is not warranted on this claim seeking money damages for personal injury.
ORDERED, that motion No. M-83517 is DENIED.
September 4, 2013
Albany, New York
W. BROOKS DeBOW
Judge of the Court of Claims
Papers considered:
(1) Claim No. 121783, filed September 24, 2012;
(2) Motion for Assignment of Counsel, sworn to May 23, 2013;
(3) Affidavit of Service, sworn to May 23, 2013.