Opinion
# 2014-048-139Claim No. 112596Motion Nos. M-84434M-84435
06-04-2014
PAUL TRUCCHIO v. THE STATE OF NEW YORK
PAUL TRUCCHIO Pro Se HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Thomas Trace, Esq. Senior Attorney
Synopsis
The Court granted Claimant's motion seeking an extension of time to file a Note of Issue and Certificate of Readiness, but denied Claimant's motion seeking poor person status.
Case information
UID: | 2014-048-139 |
Claimant(s): | PAUL TRUCCHIO |
Claimant short name: | TRUCCHIO |
Footnote (claimant name) : | |
Defendant(s): | THE STATE OF NEW YORK |
Footnote (defendant name) : | |
Third-party claimant(s): | |
Third-party defendant(s): | |
Claim number(s): | 112596 |
Motion number(s): | M-84434, M-84435 |
Cross-motion number(s): | |
Judge: | GLEN T. BRUENING |
Claimant's attorney: | PAUL TRUCCHIO Pro Se |
Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Thomas Trace, Esq. Senior Attorney |
Third-party defendant's attorney: | |
Signature date: | June 4, 2014 |
City: | Albany |
Comments: | |
Official citation: | |
Appellate results: | |
See also (multicaptioned case) |
Decision
Paul Trucchio commenced this action alleging assault and battery while an inmate at the Gouverneur Correctional Facility in St. Lawrence County under the supervision of the Department of Correctional Services (DOCS). Specifically, Claimant contends that on August 17, 2005, during a medical trip outside the facility, certain Correction Officers repeatedly punched and kicked Claimant, among other things, causing Claimant to sustain certain injuries. By Decision and Order dated June 17, 2013, the Court denied Claimant's application seeking the assignment of counsel and the appointment of a guardian ad litem (see Trucchio v State of New York, UID No. 2013-048-101 [Ct Cl, Bruening, J., June 17, 2013]). Claimant has made two motions. The first motion seeks an order striking Defendant's demand made pursuant to CPLR 3216, and requests that this action be tolled until the Court appoints Claimant an attorney or until Claimant, who is currently incarcerated in the State of Florida, is produced to the Court of Claims so that he may prosecute this matter (M-84434). The second motion seeks an order to proceed as a poor person, for appointment of counsel, and for the physical production of Claimant to the Court of Claims so that he may prosecute this matter (M-84435). Defendant opposes both of Claimant's motions.
DOCS is now known as the Department of Corrections and Community Supervision (DOCCS) (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.
As Defendant has not articulated any prejudice by the filing of Claimant's motions, the Court will disregard any technical defects with respect to motions (see CPLR 2001).
The Court will first address Claimant's motion seeking to proceed as a poor person, for the appointment of counsel, and for an order that Claimant be produced to the Court from his current residence. In support of his application, Claimant asserts that he is indigent, a lay person, mentally incompetent and is unable to have his competence assessed without the assistance of counsel. Claimant further asserts that he requires such counsel to aid in prosecuting this Claim, which would include, among other things, an investigation to determine the identity of potential witnesses and to assist in responding to certain demands made by Defendant.
By correspondence received October 24, 2013, Claimant advised the Court that he required an explanation as to what a Note of Issue and Certificate of Readiness was. By correspondence dated October 25, 2013, the Court, among other things, provided Claimant with both template forms and the procedure to be followed when filing a Note of Issue and Certificate of Readiness.
In opposition to Claimant's motion, Defendant argues, among other things, that the motion should be denied based on the lack of evidence that the St. Lawrence County Attorney's Office was served with the motion. Substantively, Defendant argues that the Claim in this matter is not sufficiently complex to justify the assignment of counsel.
A person granted poor person relief pursuant to CPLR 1101 is entitled to those benefits conferred by CPLR 1102, which may include the assignment of counsel. To obtain such relief, CPLR 1101 (a), requires that 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.
By Order of Presiding Court of Claims Judge Richard E. Sise dated August 23, 2006, Claimant was granted a reduction of the filing fee pursuant to CPLR 1101 (f).
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."
Here, while Claimant's monthly income, as evidenced by the inmate account statement attached to his motion and the 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]), Claimant's application is devoid of any facts that would enable an evaluation of the merits of his case beyond the allegations in his Claim filed with the Court. In any event, there is no absolute right to counsel in a civil matter, and the Court agrees with Defendant 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]). Furthermore, there is no indication that the St. Lawrence County Attorney was served with notice of Claimant's motion. Thus, Claimant's Motion No. M-84435 fails to comply with CPLR 1101 (c) and must be denied on this ground alone (see Senor v Behrle, 63 AD3d 1454, 1455 [3d Dept 2009]).
Claimant has provided no authority for his request that he be extradited to New York State for a civil matter. The Court of Claims Courtroom in Utica is not equipped with video-conferencing technology. However, the Court will entertain suggestions from the parties if video-conferencing capabilities are available from Claimant's facility to an alternative site.
In next addressing Claimant's Motion No. M-84434, CPLR 3216 authorizes the Court to dismiss a Claim for a claimant's failure to prosecute so long as issue has been joined, one year has elapsed since the joinder of issue, and a proper written demand to resume prosecution and serve and file a note of issue within 90 days after receipt of such demand has been served upon the claimant (see CPLR 3216; Baczkowski v Collins Constr. Co., 89 NY2d 499, 503 [1997]). Upon receipt of a 90-day demand, a claimant is required to either timely file the note of issue or move, before the default date, to either vacate the demand or extend the 90-day period pursuant to CPLR 2004 (see Sanchez v Serje, 78 AD3d 1155, 1156 [2d Dept 2010]). If a claimant defaults, he or she must demonstrate a reasonable excuse for the default and a good and meritorious cause of action to avoid dismissal for failure to prosecute. However, if a claimant, within that 90-day period, moves to vacate the demand or for an extension of time, he need only demonstrate his "need for the extension or good excuse for past delay" (Vasquez v State of New York, 12 AD3d 917, 919 [3d Dept 2004] [internal quotation marks and citations omitted]; see Grant v City of New York, 17 AD3d 215, 217 [1st Dept 2005]).
The record before the Court reveals that the Claim was filed on August 3, 2006. The parties thereafter engaged in motion practice and, by Decision and Order dated December 20, 2006, Court of Claims Judge Diane L. Fitzpatrick dismissed certain allegations as untimely (see Trucchio v State of New York, UID No. 2006-018-550 [Ct Cl, Fitzpatrick, J., Dec. 20, 2006]). After Claimant was released from DOCS custody in 2006, the case remained dormant. Then, by Order, filed May 21, 2010, the Claim was transferred to the IAS calendar of Court of Claims Judge Norman I. Siegel. By correspondence received March 12, 2012, Claimant advised of his incarceration in the State of Florida. Issue was joined by an Answer served and filed May 15, 2012 and, by Order filed March 26, 2012, the Claim was transferred to the IAS calendar of Court of Claims Judge Glen T. Bruening. The Court thereafter issued a Scheduling Order, which required, among other things, that a Note of Issue and Certificate of Readiness be filed no later than May 1, 2013 (see Scheduling Order, dated September 27, 2012). A Note of Issue was not served and filed by May 1, 2013. As a result, Defendant served a 90-day demand, Claimant received this demand and then, by the instant motion, timely moved to vacate that demand (see Claimant's Motion No. M-84434; Affirmation of Thomas Trace, Esq., ¶ 4).
Specifically, Judge Fitzpatrick determined that all allegations were untimely except for Claimant's allegations of assault occurring on August 17, 2005 and allegations of wrongdoing that may have occurred within 90 days of the date the Claim was filed and served (August 3, 2006) (see Trucchio v State of New York, UID No. 2006-018-550 [Ct Cl, Fitzpatrick, J. , Dec. 20, 2006]).
In support of Motion No. M-84434, Claimant asserts the same grounds alleged in motion No. M-84435, namely, that he is incarcerated in Florida, indigent and mentally incompetent (see Claimant's Motion to Strike or Vacate Defendant's Demand to File Note of Issue and Certificate of Readiness within (90) Days, ¶ ¶ 1and 2). In opposition, Defendant argues that Claimant has failed to demonstrate a valid reason for an extension. In noting that "CPLR 3216 . . . is extremely forgiving of litigation delay" (Baczkowski v Collins Constr. Co., 89 NY2d at 503), the Court acknowledges the difficulties that incarcerated individuals face when litigating pro se in the Court of Claims, which may include, among other things, the lack of consistent access to legal resources. In light of this fact, and in light of the lack of any articulable prejudice to Defendant, the Court grants Claimant's motion, only insofar as the date by which a note of issue and certificate of readiness must be filed is extended until December 31, 2014.
CPLR 208 does not provide for a tolling of an action by reason of a claimant's incarceration (see CPLR 208; L 1973, ch 687). Furthermore, Claimant has not shown that he is unable to protect his legal rights such that he is entitled to tolling based on "insanity" (CPLR 208; see McCarthy v Volkswagen of Am., 55 NY2d 543, 548 [1982]).
Accordingly, it is hereby
ORDERED that Claimant's Motion No. M-84435 is denied; and it is further
ORDERED that Claimant's Motion No. M-84434 is granted only insofar as Claimant is granted an extension of time by which he is to file his Note of Issue and Certificate of Readiness until December 31, 2014, and is otherwise denied.
June 4, 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 August 3, 2006;
Order, filed August 23, 2006;
Order, filed May 21, 2010;
Correspondence from Claimant, received September 18, 2006;
Answer, filed May 15, 2012, with Medicare Demand;
Order, filed March 26, 2012;
Scheduling Order, dated September 27, 2012;
Demand Pursuant to CPLR 3216 (b), received October 8, 2013;
Correspondence from Claimant, received October 24, 2013;
Correspondence from the Court, dated October 25, 2013, with attachments consisting of three pages;
Motion to Strike or Vacate Defendant's Demand to File a Note of Issue and Certificate of Readiness (M-84434), filed December 10, 2013, with attached Affidavit of Service, sworn to on December 3, 2013;
Notice of Motion to Proceed Indigent in Forma Pauperis (M-84435), filed December 10, 2013, with attached one page "Trust Fund Account Statement," document entitled "2nd Motion to Appoint Counsel and Produce Claimant," Correspondence from the Clerk of the Court, dated October 22, 2013 and Affidavit of Service, sworn to on December 3, 2013;
Affirmation of Thomas Trace, Esq., dated February 24, 2014.