Opinion
# 2015-041-016 Claim No. 125163 Motion No. M-85943 Motion No. M-86084 Cross-Motion No. CM-86127
02-19-2015
RASHID LALIVERES v. THE STATE OF NEW YORK
RASHID LALIVERES Pro Se HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Jessica Hall, Esq. and Michael T. Krenrich, Esq. Assistant Attorneys General
Synopsis
Claimant's motion for an order granting poor person status and for appointment of counsel is denied where claimant fails to serve application on county attorney and fails to show a danger of grievous forfeiture or the deprivation of a fundamental liberty right unless counsel is assigned; Defendant's cross-motion to dismiss claim alleging that defendant wrongfully confined claimant is granted where claim was not served within time period set forth in Court of Claims Act § 10.
Case information
| UID: | 2015-041-016 |
| Claimant(s): | RASHID LALIVERES |
| Claimant short name: | LALIVERES |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 125163 |
| Motion number(s): | M-85943, M-86084 |
| Cross-motion number(s): | CM-86127 |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | RASHID LALIVERES Pro Se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Jessica Hall, Esq. and Michael T. Krenrich, Esq. Assistant Attorneys General |
| Third-party defendant's attorney: | |
| Signature date: | February 19, 2015 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant moves for an order granting him poor person status in this wrongful confinement claim and also seeks appointment of counsel to represent him without cost to claimant. Claimant also moves for summary judgment on his wrongful confinement claim. Defendant opposes the claimant's motions and cross-moves to dismiss the action because the claim was not served within ninety days of its accrual, as required by Court of Claims Act § 10.
Claimant's application to proceed as a poor person "is defective inasmuch as the action has been commenced and no notice was given to the county attorney of the appropriate county as mandated" (Sebastiano v State of New York, 92 AD2d 966 [3d Dept 1983]; CPLR § 1101 [c]). The application has not been served, as required, on "the county attorney in the county in which the action is triable" (CPLR § 1101 [c]).
Claimant also seeks appointment of an attorney to represent him without charge. While it is "clear that private litigants have no absolute right to assigned counsel, it also recognized that courts have discretion to provide uncompensated representation for indigent civil litigants in a proper case" (Wills v City of Troy, 258 AD2d 849 [3d Dept 1999]; see CPLR 1102 [a]). A proper case may include proceedings where "there is the danger of grievous forfeiture or the deprivation of a fundamental liberty right" (Morgenthau v Garcia, 148 Misc 2d 900, 903 [Sup Ct, NY County 1990]).
In a civil action "there is no absolute right to assigned counsel; whether in a particular case counsel shall be assigned lies instead in the discretion of the court" Matter of Smiley, 36 NY2d 433, 438 [1975]; Planck v County of Schenectady, 51 AD3d 1283 [3d Dept 2008]).
This is not a proper case for appointment of counsel since claimant seeks money damages for wrongful confinement and claimant has not shown that a "danger of grievous forfeiture or the deprivation of a fundamental liberty right" (Morgenthau, 148 Misc 2d at 903) exists if he proceeds without assigned counsel.
Claimant also moves for summary judgment as to defendant's liability for wrongfully confining claimant. Defendant opposes claimant's motion and cross-moves to dismiss the claim based upon claimant's failure to timely serve and file the claim as required by Court of Claims Act § 10.
Claimant has not opposed defendant's cross-motion to dismiss the claim. The defendant's potentially dispositive cross-motion to dismiss will be considered first.
Claimant's motion papers show that defendant confined claimant to keeplock at Clinton Correctional Facility, beginning on October 22, 2013, as a result of a misbehavior report issued that day. An administrative disciplinary hearing was held on November 5, 2013 that resulted in a determination of guilty and a penalty of sixty days confinement in keeplock, among other penalties. Claimant apparently completed his sixty day keeplock penalty, which had commenced on October 22, 2013, on or about December 22, 2013.
The administrative determination was ultimately reversed on September 9, 2014.
A claim for wrongful confinement accrues on "the date on which [claimant's] confinement terminated" (Santiago v City of Rochester, 19 AD3d 1061, 1062 [4th Dept 2005], lv denied 5 NY3d 710 [2005]). The instant claim sets forth an accrual date of November 5, 2013, the disciplinary hearing date, but claimant's own sworn statements and attached exhibits show that claimant's confinement terminated on or about December 22, 2013. That date is the claim's date of accrual.
Court of Claims Act § 10 requires that a claim or notice of intention to file a claim alleging tortious conduct by the defendant be served upon the attorney general within ninety days after the accrual of the claim.
Courts have consistently held that "[a]s a condition of the State's limited waiver of sovereign immunity, those requirements [timely filing and service] are strictly construed and a failure to comply therewith is a jurisdictional defect compelling the dismissal of the claim" (Welch v State of New York, 286 AD2d 496, 497-498 [2d Dept 2001]; see Robinson v State of New York, 38 AD3d 1030 [3d Dept 2007]; Pizarro v State of New York, 19 AD3d 891, 892 [3d Dept 2005], lv denied 5 NY3d 717 [2005]).
The claim accrued on or about December 22, 2013, when claimant's confinement terminated. The claim was not served on the Attorney General until October 14, 2014, nearly ten months after accrual.
The claim was served more than ninety days after accrual and is therefore jurisdictionally defective.
The defendant's cross-motion is granted. The claim is dismissed.
Claimant's motion for summary judgment is denied as moot.
Claimant's motion for appointment of counsel is denied as moot.
February 19, 2015
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Claimant's Notice of Motion to Proceed as a Poor Person, filed October 24, 2014;
2. Affidavit of Rashid Laliveres, sworn to September 29, 2014;
3. Letters of Jessica Hall, dated November 21, 2014 and December 19, 2014, respectively;
4. Claimant's Notice of Motion for Summary Judgment, filed December 15, 2014;
5. Undated Affidavit of Rashid Laliveres in support of Motion for Summary Judgment, and attached exhibits;
6. Defendant's Notice of Cross-Motion, filed January 7, 2015;
7. Affirmation of Michael T. Krenrich, dated January 5, 2015, and attached exhibits.