New York State Court of Claims

New York State Court of Claims

RIVERA v. THE STATE OF NEW YORK, #2000-004-532, Claim No. 102781, Motion No. M-62213


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: Earl F. Gialanella, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
September 26, 2000
Binghamton, NY

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 July 20, 2000 1
Order of Judge Susan Phillips Read, filed August 3, 2000 2
Notice of Motion, filed July 20, 2000 3

Affidavit of Lazaro Rivera, in support of motion, sworn
to July 14, 2000 4

Order of Judge Susan Phillips Read, filed August 17, 2000 5

Affirmation of Earl F. Gialanella, AAG, in opposition
to motion, filed September 11, 2000 6

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

The filing fee requirements of Court of Claims Act § 11 - a (1) require a Claimant seeking poor person status to apply for a reduction in the filing fee pursuant to CPLR 1101 (f) . (Paper No. 2) Claimant applied for such a reduction and the filing fee was set at $25.00. (Paper No. 5)[1]

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. (CPLR § 1101 [c]) The Attorney General has 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....

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. The gravamen of the Claim appears to be "due process violation rights...false imprisonment...procedural due process denial" allegedly as the result of the State's "actions" in confining Claimant to a Special Housing Unit. (Paper No. 1, ¶¶ 22-25) The issues presented therein are not so complex as to require counsel and do not involve such fundamental rights so that the Court wold be justified in exercising its discretion to appoint an attorney 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-62213 is DENIED.

September 26, 2000
Binghamton, NY, New York

Judge of the Court of Claims

Whether or not CPLR § 1101 (f) is unconstitutional (see, Gomez v Evangelist, Supreme Court, New York County, Goodman, J.S.C., filed September 11, 2000) has no direct bearing on the result herein. If it is, Claimant need pay no filing fee. If it is not, the filing fee has been fixed with Claimant's financial circumstances in mind.