Opinion
# 2016-018-707 Claim No. 125220 Motion No. M-87861
03-04-2016
ROBERT RIVERA v. STATE OF NEW YORK
ROBERT RIVERA Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Thomas Trace, Esquire of Counsel
Synopsis
Claimant's motion to appoint an attorney to represent him is denied. Claimant failed to serve county attorney in the county where the action is triable, and the Court will not exercise its discretion to appoint an attorney to appear without compensation in this matter.
Case information
| UID: | 2016-018-707 |
| Claimant(s): | ROBERT RIVERA |
| Claimant short name: | RIVERA |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 125220 |
| Motion number(s): | M-87861 |
| Cross-motion number(s): | |
| Judge: | DIANE L. FITZPATRICK |
| Claimant's attorney: | ROBERT RIVERA Pro Se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Thomas Trace, Esquire of Counsel |
| Third-party defendant's attorney: | |
| Signature date: | March 4, 2016 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant moves to have this Court appoint an attorney to represent him on his pending bailment claim. Defendant opposes the motion.
The claim was filed on November 5, 2014, when Claimant was an inmate housed at Upstate Correctional Facility. He previously moved for summary judgment (M-86929) and Defendant cross-moved to dismiss (CM-8707). Both motions were denied. Currently Claimant is being held in the Erie County jail and he argues he cannot afford to hire an attorney. He also avers that the case has complex legal issues which he is untrained to handle. He no longer is in State custody and has no legal documents in his possession, or access to a law library.
Rivera v State of New York, UID No. 2015-018-640 (Ct Cl, Fitzpatrick, J., Sept. 8, 2015). --------
Defendant contends that cases such as this do not warrant assigned counsel paid by the public. A motion for permission to proceed as a poor person must be served not only upon the parties, but also upon the county attorney in the county in which the action is triable (CPLR 1101 [c]). Here, Claimant has failed to serve the St. Lawrence County attorney with a copy of this motion, rendering the motion defective and requiring the Court to deny the request for appointment of counsel on that ground alone (Sebastiano v State of New York, 92 AD2d 966 [3d Dept 1983]).
The appointment of counsel in this type of case, which is for lost property, is not required by the constitution or statute; it is discretionary (see Matter of Smiley v State of New York, 36 NY2d 433 [1975]; Wills v City of Troy, 258 AD2d 849 [3d Dept 1999]; Russo v State of New York, 50 AD3d 1554 [4th Dept 2008]). For litigants involved in private litigation, absent statutory authority therefor, without any risk of loss of liberty or grievous forfeiture, the Courts have no authority to direct the provision of counsel or to require compensation of retained counsel out of public funds (Matter of Smiley, 36 NY2d at 438).
After reviewing the claim and the circumstances of this case, the Court will not exercise its discretion to appoint an attorney to appear without compensation in this matter (see Matter of Smiley, 36 NY2d at 438; Wills, 258 AD2d at 849). In fact, to date, Claimant has handled this matter quite appropriately.
Based upon the foregoing, Claimant's motion is DENIED in its entirety.
March 4, 2016
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims The Court has considered the following in deciding this motion: 1) Notice of Motion. 2) Affidavit of Robert Rivera, pro se, sworn to December 23, 2015. 3) Affirmation of Thomas Trace, Esquire, in opposition.