Opinion
# 2014-048-147 Claim No. 108930 Motion No. M-84991
06-09-2014
ANTHONY MALLOY v. THE STATE OF NEW YORK
ANTHONY MALLOY, Pro Se HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Glenn C. King, Esq. Assistant Attorney General No Appearance
Synopsis
The Court denied Claimant's motion for poor person relief and the assignment of counsel.
Case information
| UID: | 2014-048-147 |
| Claimant(s): | ANTHONY MALLOY |
| Claimant short name: | MALLOY |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 108930 |
| Motion number(s): | M-84991 |
| Cross-motion number(s): | |
| Judge: | GLEN T. BRUENING |
| Claimant's attorney: | ANTHONY MALLOY, Pro Se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Glenn C. King, Esq. Assistant Attorney General No Appearance |
| Third-party defendant's attorney: | |
| Signature date: | June 9, 2014 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Anthony Malloy commenced this action seeking damages he sustained while an inmate at Ulster Correctional Facility (Ulster) in Napanoch, New York, under the supervision of the Department of Correctional Services (DOCS).
DOCS is now known as the Department of Corrections and Community Supervision (see L. 2011, ch. 62, pt C, subpt A, § 4, eff. March 31, 2011). Inasmuch as the Claim relates to acts that occurred prior to the name change, this Decision will refer to the Executive Agency by its former name.
Specifically, Claimant alleges that on July 15, 2003, he was wrongfully transferred from Ulster to Downstate Correctional Facility (Downstate) for an unnecessary mental health evaluation, during which he was forced to turn over his clothes and shoes, and was forced to remain there for 24 hours (see Claim, pages 1 and 2). Claimant alleges that his transfer was prompted by allegations made by him to a mental health physician that he had been assaulted by correction officers, who were also members of the Ku Klux Klan (Klan) while he was incarcerated at Attica Correctional Facility (Attica) in 2001 (see Claim, page 1). The trial of this action has been scheduled to commence on August 8, 2014. Claimant has moved, pursuant to CPLR 1101 (a), seeking poor person status, including the assignment of counsel.
In support of his application, Claimant asserts that he receives $1.25 per week as income for work done in his current facility, Clinton Correctional Facility (see Claimant's Affidavit, ¶ 6), and that he has no other savings, property, assets, or income. The Ulster County Attorney's Office opposes Claimant's motion, contending that it has not been served with a copy of the motion papers. Defendant has not appeared in opposition to Claimant's motion.
Pursuant to CPLR 1101 (a), a motion for permission to proceed as a poor person must be supported with an affidavit setting forth the amount and sources of his or her income and listing his or her property with its value; that he or she is unable to pay the costs, fees and expenses necessary to prosecute or defend the action or to maintain or respond to the appeal; the nature of the action; sufficient facts so that the merit of the contentions can be ascertained; and whether any other person is beneficially interested in any recovery sought and, if so, whether every such person is unable to pay such costs, fees and expenses.
Furthermore, CPLR 1101 (c) requires that Claimant's motion "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."
Initially, there is no evidence that the Ulster County Attorney - who is required to be served with a copy of the application for poor person status (see CPLR 1101 [c]) - has been served with either Claimant's motion, the Claim, or any other papers filed with the Court. Thus, Claimant's Motion No. M-84991 fails to comply with CPLR 1101 (c) and must be denied (see Senor v Behrle, 63 AD3d 1454, 1455 [3d Dept 2009]). Furthermore, while Claimant's monthly income and lack of any other sources of income is a compelling reason to grant poor person status (see Matter of Benyi v Broome County Sheriff's Dept., 158 AD2d 869, 870 [3d Dept 1990]), his application is devoid of any facts that would enable an evaluation of the merits of the Claim. Rather, Claimant asserts that "[t]he facts of my case are described in my claim . . . and other papers filed with the Court" (Claimant's Affidavit,¶ 10). While the Court and Defendant is privy to the record in this matter, there is no evidence that the Ulster County Attorney - who is required to be served with a copy of the application for poor person status (see CPLR 1101 [c]) - is privy to that information. Accordingly, Claimant's application fails to comply with CPLR 1101 (a). In any event, there is no absolute right to counsel in a civil matter, and the Court concludes that this is not a proper case for appointment of counsel since this action does not involve the potential for the "loss of liberty or grievous forfeiture" (Matter of Smiley, 36 NY2d 433, 437 [1975]).
Accordingly, Claimant's Motion No. M-84991 is denied, with leave to renew upon proper papers (see Matter of Marcus C., 136 AD2d 971, 971 [4th Dept 1988]).
June 9, 2014
Albany, New York
GLEN T. BRUENING
Judge of the Court of Claims
The following papers were read and considered by the Court:
Claim, filed February 19, 2004;
Notice of Motion, filed April 23, 2014;
Affidavit in Support of Application for Leave to Prosecute Claim in Forma Pauperis Pursuant to CPLR §§1101 and 1102, sworn to on April 21, 2014, with attached authorization and affidavit of service;
Correspondence from the Ulster County Attorney, received May 12, 2014.