New York State Court of Claims

New York State Court of Claims

GRANT v. THE STATE OF NEW YORK, #2001-013-013, Claim No. 98192, Motion Nos. M-63552, M-63571


Claimant's motion in limine to preclude questioning and testimony regarding his prior criminal convictions and his prison disciplinary record is denied; such evidence may be relevant and admissible to determine the weight of his testimony (CPLR 4513). Claimant's motion to proceed as a poor person and to have the Court appoint both an attorney to represent him and an expert witness to testify on his behalf is also 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):
M-63552, M-63571
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 15, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


On June 20, 2001, the following papers were read on Claimant's motion in limine to preclude inquiry into certain facts at trial (Motion No. M-63552) and on Claimant's motion to proceed as a poor person (Motion No. M-63571):

1. Notice of Motion No. M-63552 and Supporting Affidavit of Stephen Grant, pro se ("Grant Affidavit I")

2. Affidavit in Opposition to Motion No. M-63552 of Wendy E. Morcio, Esq., Assistant Attorney General ("Morcio Affidavit")

3. Notice of Motion No. M-63571 and Supporting Affidavit of Stephen Grant, pro se (Grant Affidavit II")

4. Filed Papers: Claim; Answer

This claim arose at Gowanda Correctional Facility in July 1996 when, it is alleged, Claimant was assaulted by other inmates. Claimant also alleges that he received inadequate medical treatment for his injuries and that he was subjected to cruel and inhuman punishment. This action is scheduled to be tried in November 2001.

By his first motion, Claimant seeks a motion in limine to exclude at trial any questioning related to and any evidence of his prior criminal history or his prior prison disciplinary history. He asserts that such items of prior history "do not have much to do with credibility and there is a likelihood that they would prejudice the trial court against the claimant" (Grant Affidavit I, ¶9).

CPLR 4513 provides, in relevant part, that a person who has been convicted of a crime may be cross-examined with respect to the conviction, or may have the record of such crime produced, "for the purpose of affecting the weight of his testimony." Prior convictions and bad acts may be used to impeach the credibility of a witness (Pope v New York City Transit Auth., 244 AD2d 263), and civil litigants in particular are afforded broad authority to use such prior convictions to impeach an adverse witness's credibility (Sansevere v United Parcel Service, 181 AD2d 521). The crimes involved need not be exclusively those relating to truthfulness (e.g., fraud, perjury), but be any that "affect the witness's character and show the witness to be unworthy of belief, provided the inquiry is made in good faith and there is a reasonable factual basis for it" (Murphy v Estate of Vece, 173 AD2d 445, 446 [plaintiff claiming serious physical injury from an automobile accident may be questioned as to convictions for possession of a weapon and possession of a controlled substance]). The decision whether to admit such evidence, and the extent to which it should be admitted, rests within the sound discretion of the trial judge (Langley v Wadsworth, 99 NY 61). Trial of this action will be heard by a judge, not a jury; the claim is based on events that occurred within a prison, and the trial itself will be held within the confines of a prison. Consequently, there is no way for Claimant to conceal that he has a prior criminal history. Determining whether and to what extent to permit inquiry into that history is most properly left to rulings on specific questions that may be put to Claimant at trial.

With respect to Claimant's motion to proceed as a poor person, the only relief available under CPLR 1102 that Claimant can be seeking at this juncture is the assignment of an attorney who would serve without compensation. The appointment of counsel in a case such as this, where there is no threat that Claimant is about to be deprived of a liberty or suffer a grievous forfeiture, is neither statutorily nor constitutionally required (Morgenthau v Garcia, 148 Misc 2d 900; Harris v State of New York, Ct Cl, Oct. 2, 1990 [Claim No. 80949, Motion No. M-42854], Benza, J.). Furthermore, this claim is not of sufficient complexity and does not involve such fundamental rights 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; Jacox v Jacox, 43 AD2d 716).

Claimant has specifically requested that he be granted poor person status so that a qualified expert physician (an otolaryngologist) can be "directed" to serve as his expert medical witness in order to prove the elements of "medical malpractice, negligence, and deliberate indifference" (Grant Affidavit II, ¶8). Specifically, he seeks expert medical testimony to establish that his broken nose was misdiagnosed for a period of nine days, that it was improperly treated after it was diagnosed, that necessary surgery was delayed for two years, and that as a result of the negligent treatment, Claimant contracted a nasal bacterial infection which caused permanent deformity of the nose and will require further cosmetic treatment (id., ¶9). Claimant has contacted a board certified otolaryngologist, Dr. Robert J. Perry, and determined that the cost of securing his testimony would be $350.00 for the initial examination, and $1,500.00 for preparation and presentation of in-court testimony (id., ¶13 and Exhibit B, physician's letter). It is evident that expert testimony will be required in order to establish a deviation from accepted standards of medical care in this action (see, Lyons v McCauley, 252 AD2d 516, lv denied 92 NY2d 814).

A civil litigant who is granted poor person relief is entitled to those benefits conferred by CPLR 1102, including filing fees, court costs, copies of transcripts of hearings and trials at government expense (Carter v County of Erie, 255 AD2d 984, rearg and lv denied 689 NYS2d 596 citing to Alexander, Practice Commentaries (McKinney's Cons Laws of NY, Book 7B, CPLR C1102:2, at 285), but the poor person statutes (CPLR 1101, 1102) do not cover or provide for the coverage of expenses payable by litigants to third persons other than public officers, unless failure to pay certain statutorily required costs (such as the cost of publication necessary to maintain a divorce action) will result in an unconstitutional denial of access to the courts (see, Jeffreys v Jeffreys, 38 AD2d 431). Except in those special situations, the costs of litigation that are commonly labeled "auxiliary expenses" -- other publication costs, witness fees, printing expenses, expert witnesses and general investigation costs -- are to be borne by the litigant or, if such is required by a retainer agreement, advanced by the litigant's attorney (see, e.g., Sebastiano v State of New York, 112 Misc 2d 1030, affd 92 AD2d 966; Code of Professional Responsibility DR 5-103[b][1] [22 NYCRR 1200.22(b)(1)]).

It is inescapable that indigent litigants face an uphill struggle when they are required to present expert witnesses, particularly an expert physician witness, in order to commence or prevail in a lawsuit; this is especially true in the case of incarcerated inmates who are limited in their ability to personally contact attorneys who might be willing to engage the services of an expert or the experts themselves. The difficulty of this situation has been the subject of considerable discussion in other states (see, e.g., Ashley v Kronfeld, 696 A2d 396 [DE]; Primeaux v Leapley, 502 NW2d 265 [SD]; Walls v Cooper, 604 A2d 419, 1991 WL 247806 [DE]; State ex rel. Scott v Roper, 688 SW2d 757 [MO]). Research has disclosed no circumstance, in New York or any other state, in which government funds have been expended to secure the services of an expert witness to testify on behalf of an indigent person who is prosecuting a civil action for money damages.[1] The practical barrier is not insurmountable, however, for the calendar of the Court of Claims provides ample evidence that private attorneys are willing to accept prisoner lawsuits on a contingent fee basis and, in many instances, to advance the cost of securing expert witnesses, as they are permitted to do so by the Code of Professional Responsibility DR 5-103 (supra). I am not persuaded that Claimant will be unable to prosecute this action unless the Court appoints and compensates an expert witness to testify on his behalf. Even if I were so persuaded, there is no authority for such appointment or source from which to pay such compensation.

Claimant's motion in limine to preclude certain evidence at trial is denied; his motion to proceed as a poor person is denied; and his request that an expert witness be appointed to testify on his behalf and compensated, in some fashion, from public funds is denied.

August 15, 2001
Rochester, New York

Judge of the Court of Claims

  1. [1]It appears that federal courts have a very limited authority to advance funds for such purposes because Rule 706 of the Federal Rules of Evidence authorizes those courts to appoint witnesses and to apportion costs for such witnesses between the parties (see, Ledford v Sullivan, 105 F3d 354, 46 Fed R. Evid. Serv. 462 [7th Cir 1997]).