New York State Court of Claims

New York State Court of Claims

PORTAL v.THE STATE OF NEW YORK, #2000-004-515, Claim No. 101967, Motion No. M-61421


Claimant's poor person application 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 General, of counsel
Third-party defendant's attorney:

Signature date:
June 9, 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 February 16, 2000 1
Petition, filed February 16, 2000 2
Order of Judge Susan Phillips Read, filed March 8, 2000 3
Order of Judge Susan Phillips Read, filed March 23, 2000 4

Letter from Carol A. Cocchiola, AAG, to the Court in
response to Claimant's motion, received, April 14, 2000 5

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....

There is no Affidavit of Service attached to the motion papers showing that Claimant served a copy of the motion papers on the Chemung County Attorney, such service being required if there is a pending Claim since Claimant was incarcerated at the Elmira Correctional Facility when the Claim accrued. This omission may not be significant, however, since, according to the Assistant Attorney General assigned to this matter, Claimant not only failed to serve a copy of the motion papers on the Attorney General, but also failed to serve a copy of the Claim. (see, Paper No. 5)[1] To add to the mix, the filed Claim (Paper No. 1) recites that a Notice of Intention to File a Claim was "served on the office of the Attorney General on the 12 day of 6, 1999". (Paper No. 1 [emphasis in original]). Since June 12, 1999 would pre-date the date of the assault as alleged in the Claim, i.e., December 6, 1999, it appears that Claimant is alleging that he served a Notice of Intention on the Attorney General on the same day as the assault.

In any event, even if this application had been properly served and whether or not there is a pending Claim[2] the application will be denied for the reasons set forth below.

The filing fee requirement of Court of Claims Act § 11 - a (1) requires a Claimant seeking poor person status to apply for a reduction in the filing fee pursuant to CPLR 1101 (f). (Paper No. 3) Claimant applied for such a reduction and the filing fee was set at $25.00. (Paper No. 4)

Other than the filing fee, there are no other costs in the Court of Claims. Thus, the only remaining relief requested and authorized by CPLR § 1102 is the assignment of an attorney.

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 No. 1) 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 an attorney to appear without compensation (see, Matter of Smiley, 36 NY2d 433).

In light of the foregoing, it is

ORDERED that Motion No. M-61421 is DENIED.

June 9, 2000
Binghamton, New York

Judge of the Court of Claims

A copy of this letter from the Assistant Attorney General to the Court (Paper No. 5), the contents of which are summarized above, was "cc:" copied to Claimant.
An application for the relief sought herein may be made before commencement of the action.