Opinion
# 2019-041-046 Claim No. 132736 Motion No. M-93770 Motion No. M-93902
07-19-2019
GIOVANNI WHITE v. THE STATE OF NEW YORK
GIOVANNI WHITE Pro Se HON. LETITIA JAMES New York State Attorney General By: Christina Calabrese, Esq. Assistant Attorney General
Synopsis
Claimant's motion for grant of poor person status and for assignment of counsel without fee is denied where application was not served on appropriate county attorney and where claim is not proper case for assignment of counsel; defendant's motion to dismiss claim is granted where claimant failed to timely serve his claim.
Case information
| UID: | 2019-041-046 |
| Claimant(s): | GIOVANNI WHITE |
| Claimant short name: | WHITE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 132736 |
| Motion number(s): | M-93770, M-93902 |
| Cross-motion number(s): | |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | GIOVANNI WHITE Pro Se |
| Defendant's attorney: | HON. LETITIA JAMES New York State Attorney General By: Christina Calabrese, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | July 19, 2019 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an inmate at Wyoming Correctional Facility, moves (M-93770) for an order granting poor person status and assigning counsel to represent him without payment of any fee in this action seeking recovery for intentional assault and lost personal property. Defendant opposes the relief requested in the motion.
Defendant moves (M-93902) to dismiss the claim in lieu of answering on the jurisdictional grounds that claimant failed to timely serve his personal property remedy as required by Court of Claims Act 10 (9) and that claimant's intentional tort cause of action is also untimely pursuant to Court of Claims Act 10 (3-b). Claimant opposes the defendant's motion to dismiss the claim.
Claimant's application for poor person relief must be denied for failure to give notice to the appropriate county attorney (Sebastiano v State of New York, 92 AD2d 966 [3d Dept 1983]; CPLR 1101 [c]). Notice of a poor person application is required to be given to the appropriate county attorney since there are "no available statutory provisions which would support [a] Court of Claims assessment of any [poor person] expenses against the State" (Mapp v State of New York, 69 AD2d 911, 912 [3d Dept 1979]).
Assuming claimant seeks assignment of counsel pursuant to CPLR 1102 (a), the "application 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, 92 AD2d at 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]).
Further, 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 personal injuries allegedly caused by defendant's negligence. Such cases, if they appear meritorious, are typically handled by private attorneys, without cost to the litigant, on a contingent fee basis.
Claimant has not shown a "danger of grievous forfeiture or the deprivation of a fundamental liberty right" (148 Misc 2d at 903).
Claimant's motion (M-93770) for an order granting him poor person status and assigning counsel to represent him without payment of any fee in this action is denied.
Next, defendant moves to dismiss the claim on the jurisdictional grounds that claimant failed to timely serve his personal property remedy as required by Court of Claims Act 10 (9) and failed to timely serve his intentional tort cause of action as required by Court of Claims Act 10 (3-b).
On February 15, 2018, the claimant served on defendant a notice of intention to file a claim alleging that several correction officers "Committed Assault and Battery on Claimant" at Clinton Correctional Facility on December 20, 2017. The notice of intention to file a claim also included allegations stating that certain books, magazines, papers, records and letters owned by claimant were "Lost/Confiscated" by defendant.
With respect to the claimant's lost personal property cause of action, Court of Claims Act 10 (9) provides as follows:
"A claim of any inmate in the custody of the department of correctional services for recovery of damages for injury to or loss of personal property may not be filed unless and until the inmate has exhausted the personal property claims administrative remedy, established for inmates by the department. Such claim must be filed and served within one hundred twenty days after the date on which the inmate has exhausted such remedy."
The record shows that claimant's administrative remedy was exhausted on or about July 16, 2018. The claim was served on the Attorney General on April 10, 2019, more than "one hundred twenty days after the date on which the inmate has exhausted such remedy" (Court of Claims Act 10 [9]).
The claimant's lost personal property cause of action was not served within the time period set forth in Court of Claims 10 (9) and is jurisdictionally defective.
The claimant's lost personal property cause of action is dismissed.
With respect to the claimant's intentional tort cause of action alleging assault and battery, Court of Claims Act 10 (3-b) provides at relevant part as follows:
"A claim to recover damages for . . . personal injuries caused by the intentional tort of an officer or employee of the state while acting as such officer or employee . . . shall be filed and served upon the attorney general within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within one year after the accrual of such 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]).
As set forth in Court of Claims Act 10 (3-b), service of the notice of intention to file a claim, on February 15, 2018, provided claimant a one-year period, measured from the claim's accrual date, December 20, 2017, in which to serve his intentional tort claim.
Claimant served his intentional tort claim, alleging "Assault and Battery," on the defendant on April 10, 2019, more than one year after the accrual date of the intentional tort cause of action.
The intentional tort cause of action is barred by Court of Claims Act 10 (3-b) and is dismissed.
The defendant's motion (M-93902) to dismiss the claim as jurisdictionally defective is granted. The claim is dismissed.
July 19, 2019
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Claimant's Notice of Motion (M-93770) to Proceed as a Poor Person Pursuant to CPLR 1101 (F), filed March 6, 2019; 2. Affidavit of Giovanni White, sworn to February 16, 2019; 3. Affirmation in Opposition of Christina Calabrese, dated April 22, 2019; 4. Defendant's Notice of Motion (M-93902), filed April 26, 2019; 5. Affirmation of Christina Calabrese, dated April 23, 2019, and attached exhibits; 6. Claimant's Notice of Responding Motion and unsworn Affirmation in Opposition to Defendant's Motion to Dismiss, dated May 9, 2019; 7. Claimant's letter and Exhibits, filed May 23, 2019.