Opinion
# 2020-053-508 Claim No. 133633 Motion No. M-94942 Motion No. M-94944
01-28-2020
JOHN L. WAGER, JR. v. THE STATE OF NEW YORK
JOHN L. WAGER, JR., Pro Se HON. LETITIA JAMES New York State Attorney General BY: Michael T. Feeley, Esq. Assistant Attorney General
Synopsis
Pro se claimant's motions for the assignment of counsel and for additional time to reply to defendant's answer and to respond to discovery demands are both denied.
Case information
| UID: | 2020-053-508 |
| Claimant(s): | JOHN L. WAGER, JR. |
| Claimant short name: | WAGER |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 133633 |
| Motion number(s): | M-94942, M-94944 |
| Cross-motion number(s): | |
| Judge: | J. DAVID SAMPSON |
| Claimant's attorney: | JOHN L. WAGER, JR., Pro Se |
| Defendant's attorney: | HON. LETITIA JAMES New York State Attorney General BY: Michael T. Feeley, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | January 28, 2020 |
| City: | Buffalo |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Pro se claimant John L. Wager, Jr. alleges in claim no. 133633 that on April 26, 2019, he slipped and fell off the loading dock in the mess hall kitchen while attempting to move a metal ramp, injuring his left hand. At the time of his injury, claimant was incarcerated at Collins Correctional Facility (Collins). Claimant moves by motion no. M-94942 for the assignment of counsel and by motion no. M-94944 for additional time to reply to defendant's answer and to respond to defendant's discovery demands. These motions will be addressed separately.
Motion No. M-94942 for the Assignment of Counsel.
Procedurally, claimant's motion insofar as it can be construed as a motion to proceed as a poor person and/or for the assignment of counsel is defective as there is no affidavit of service indicating that the motion was served upon the County Attorney as required by CPLR 1101 (c). Regardless, it would have to be denied. By order filed October 15, 2019, Acting Presiding Judge Richard E. Sise reduced claimant's filing fee from $50.00 to $20.00 pursuant to CPLR § 1101 (f). Inasmuch as there are no other fees or costs associated with the prosecution of this claim, Claimant's motion to proceed as a poor person would have to be denied.
Moreover, while CPLR § 1102 grants to the Court discretion to assign an attorney, there is no constitutional or statutory requirement that indigents be assigned private counsel in civil litigation and such a request is generally denied except in cases involving loss of liberty or grievous forfeiture (Lassiter v Dep't of Social Servces, 452 US 18, 25 [1981]; Matter of Smiley, 36 NY2d 433, 437 [1975]). Claimant's present claim seeks money damages only and as such, does not rise to the level of a grievous forfeiture nor does it demonstrate the loss of any fundamental right that would justify this Court appointing an attorney to appear on Claimant's behalf.
Accordingly, claimant's motion no. M-94942 is denied.
Motion No. M-94944 for an Extension of Time.
By motion no. M-94944, claimant seeks an extension of time to reply to defendant's answer and to respond to defendant's discovery demands. Insofar as claimant's motion seeks additional time to reply to defendant's answer, it is denied. CPLR 3011 and section 206.7 (a) of the Uniform Rules for the Court of Claims permit a defendant to include a counterclaim in its answer, in which event, the claimant may serve a reply to the counterclaim. When an answer does not include a counterclaim, it "is not only unnecessary, but in fact inappropriate" to serve a reply (Scott v State of New York, UID No. 2003-031-017 [Ct Cl, Minarik, J., Apr. 9, 2003]; see Raymond Corp. v National Union Fire Ins. Co. of Pittsburgh, Pa., 46 AD3d 1251, 1253 [3d Dept 2007]). Here, defendant's answer does not contain a counterclaim requiring a reply. As claimant is not authorized to submit a reply, a request for an extension of time to do so must be denied (H. S. v State of New York, UID No. 2019-038-586 [Ct Cl, DeBow, J., Sept. 13, 2019]).
In addition, claimant moves by motion no. M-94944 for additional time to respond to defendant's discovery demands. On December 9, 2019, my chambers received from claimant a large package containing several documents. All of these documents contained a reference to Claimant's motion no. M-94722 which, as discussed above, is claimant's motion for the assignment of counsel. None of the documents enclosed in claimant's package has anything to do with claimant's motion for the assignment of counsel. Among the documents enclosed, however, was claimant's bill of particulars in response to defendant's demand. As defendant's demand for a bill of particulars appears to be the only demand served upon claimant and as defendant's demand has now been responded to, claimant's motion for additional time to respond to defendant's discovery demands is denied as moot.
Finally, claimant's December 9, 2019 package also enclosed what appears to be a motion to compel a trial date. No such motion is pending as it does not appear that claimant filed such a motion with the clerk of the Court of Claims in Albany. Sending a copy of a purported motion to chambers is no substitute for the actual filing of the motion. If, however, such a motion were to be filed, it would be denied. Here, it is obvious that this claim is not ready for trial as pretrial discovery is still ongoing. In addition, it does not appear that this claim would be entitled to a trial preference pursuant to CPLR 3403. As a result, claim no. 133633 will be scheduled for trial by the Court in due course.
Based on the foregoing, claimant's motion nos. M-94942 and M-94944 are denied.
January 28, 2020
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims The following were read and considered by the Court: 1. Notice of motion no. M-94942 and letter from John L. Wager, Jr. dated November 15, 2019; 2. Notice of motion no. M-94944 and affidavit of John L. Wager, Jr. sworn to November 15, 2019; and 3. Opposing affidavit of Assistant Attorney General Michael T. Feeley sworn to January 9, 2020.