Opinion
# 2016-040-013 Claim No. 126265 Motion No. M-87855
02-23-2016
ROBERT RIVERAv. THE STATE OF NEW YORK
Robert Rivera, Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Christina Calabrese, Esq., AAG
Synopsis
Motion for poor personj status and assignment of counsel denied.
Case information
| UID: | 2016-040-013 |
| Claimant(s): | ROBERT RIVERA |
| Claimant short name: | RIVERA |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 126265 |
| Motion number(s): | M-87855 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | Robert Rivera, Pro Se |
|---|---|
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Christina Calabrese, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | February 23, 2016 |
| 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.
Claimant, Robert Rivera, appearing pro se, seeks leave to proceed as a poor person and for assignment of counsel pursuant to CPLR § 1101(a). The Claim was filed in the office of the Clerk of the Court on June 8, 2015 and alleges that, on February 15, 2015, while incarcerated at Franklin Correctional Facility located in Malone, New York (hereinafter, "Franklin"), Claimant was issued a misbehavior report and charged with fighting, disobeying a direct order, violent conduct and creating a disturbance. A Superintendent's hearing was commenced on February 23, 2015 and, on February 24, Claimant was found not guilty of fighting and of disobeying a direct order; however, he was found guilty of creating a disturbance and of violent conduct. The sentence imposed was 60 days in solitary confinement. Claimant appealed the determination and, on April 27, 2015, the hearing officer's determination was administratively reversed and expunged from his record. Claimant asserts that he was wrongfully confined in solitary confinement from February 24 to April 27, 2015.
Attached to the Claim was 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 June 19, 2015, Acting Presiding Judge Richard E. Sise reduced Claimant's filing fee from $50 to $35 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.
February 23, 2016
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 1 Affirmation in Opposition 2 Filed Papers: Claim, Answer, Amended Answer