New York State Court of Claims

New York State Court of Claims

CHILDRESS v. THE STATE OF NEW YORK, #2000-004-513, Claim No. 101479, Motion No. M-61150


Claimant's application for poor person, denied.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
BY: Carol A. Cocchiola, Assistant Attorney Generalof counsel
Third-party defendant's attorney:

Signature date:
May 23, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant seeks permission to proceed as a poor person and for assignment of counsel

pursuant to CPLR §§ 1101 and 1102.

The following papers are before the Court:

Claim, filed November 29, 1999 1

Amended Claim, filed January 26, 2000 2

Petition, filed January 26, 2000 3

Affidavit of Craig Childress in support of motion, sworn to
January 24, 2000 4

"AFFIDAVIT"[1] in opposition to motion, dated February 15, 2000 5

Affidavit of Service, sworn to January 24, 2000 6

Claimant seeks permission to proceed as a poor person pursuant to CPLR § 1101, which

requires him to file 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.

(CPLR § 1101 [a]).

CPLR § 1101 further requires that:
(c) Notice. ...[I]f an action has already been commenced, notice of the 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....

Claimant has submitted his Petition which indicates that he earns $8.00 per month and owns no property (Paper No. 4). In the Court's view, this establishes his indigency. There is no Affidavit of Service attached to the motion papers showing that Claimant served a copy of the motion papers on the Attorney General or the Chemung County Attorney, the latter being required since Claimant was incarcerated at the Elmira Correctional Facility when the Claim accrued. The Attorney General has, in a sense, opposed the motion and so the service defect, in that regard, is of no moment. Failure to serve the Chemung County Attorney, however, requires that Claimant's application be denied.

Even if Claimant's application had been properly served, it would be denied for the reasons set forth below.

One who qualifies for poor person status is accorded certain relief as set forth in CPLR § 1102:
(a) Attorney. The court in its order permitting a person to proceed as a poor person may assign an attorney.

(b) Stenographic transcript. Where a party has been permitted by order to appeal as a poor person, the court clerk...shall so notify the court stenographer, who...shall make and certify two typewritten transcripts of the stenographic minutes of said trial or hearing, and shall deliver one of said transcripts to the poor person or his attorney....

(c) Appeals. On an appeal or motion for permission to appeal a poor person may submit typewritten briefs and appendices, furnishing one legible copy for each appellate justice.

(d) Costs and fees. A poor person shall not be liable for the payment of any costs or fees unless a recovery by judgment or by settlement is had in his favor....

As of the date of filing of the Claim herein, there were no filing fees and, currently there are no other costs in the Court of Claims. CPLR § 1102 (b) and (c) do not apply at the present time since the Claim has not yet been tried. Thus, the only remaining relief requested and authorized by CPLR § 1102 is the assignment of counsel. Such assignment is not an absolute right in civil litigation and the decision to assign counsel lies within the discretion of the Court.
It appears that the Claim is for injuries sustained by Claimant as a result of an assault upon Claimant by another inmate allegedly as a result of the negligence of the State (Paper Nos. 1 and 2).
The issues presented therein are not so complex as to require counsel and do not involve such fundamental rights so that the Court would be justified in exercising its discretion to appoint counsel to appear without compensation (see, Matter of Smiley, 36 NY2d 433).

It appears, therefore, that to grant Claimant the status of poor person at this juncture of the action is unwarranted.

In light of the foregoing, it is

ORDERED that Motion No. M-61150 is DENIED.

May 23, 2000
Binghamton, New York

Judge of the Court of Claims

Although labeled an Affidavit, this document is an Affirmation. In addition, the affirmant is identified as one Assistant Attorney General in the opening paragraph of this document, but it is signed by a different Assistant Attorney General.