New York State Court of Claims

New York State Court of Claims

BROWN v. THE STATE OF NEW YORK, #2001-015-118, Claim No. 103283, Motion No. M-62713


Poor person application denied for failure to notify county attorney of application. Motion seeking assignment of counsel denied for failure to demonstrate case involves grievous forfeiture or loss of a fundamental right.

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:
Antonio Brown, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney GeneralBy: No Appearance
Third-party defendant's attorney:

Signature date:
January 22, 2001
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The application of the claimant for an order pursuant to CPLR § § 1101 and 1102 permitting him to proceed as a poor person and appointing an attorney to represent him without fee is denied. By order dated November 9, 2000 Presiding Judge Susan Phillips Read granted that portion of the application which sought reduction of the filing fee required by Court of Claims Act § 11-a(1). This claim is based upon the alleged wrongful confinement of claimant in a special housing unit at Oneida Correctional Facility in August, 2000. The claim seeks monetary damages in the amount of $90,000 for pain and suffering and for mental anguish arising from the claimant's confinement.

The application for permission to proceed as a poor person must be denied because claimant's motion papers fail to demonstrate that it was served upon the Oneida County Attorney. Failure to serve a county attorney as required by CPLR § 1101(c) is a proper basis for denying a motion for permission to proceed as a poor person (Bowman v State of New York, 229 AD2d 1024; Harris v State of New York, 100 Misc 2d 1015, 1017). Service of the motion papers upon the "Law Department, Capitol Building, Albany, NY" as evidenced by claimant's affidavit of service sworn to the 19th day of October, 2000 does not constitute service upon the Oneida County Attorney.

Claimant's application for the assignment of an attorney is likewise denied. The Court of Appeals has held that there is no constitutional or statutory requirement that indigents be assigned private counsel in civil litigation of this nature (Matter of Smiley, 36 NY2d 433). Smiley has been interpreted for the proposition that Courts should not routinely approve requests made by indigents for the assignment of private counsel without compensation unless the litigation involves grievous forfeiture or loss of a fundamental right (Wills v City of Troy, 258 AD2d 849, lv to app dismissed, 93 NY2d 1000; Morgenthau v Garcia, 148 Misc 2d 900, 903). This claim does not rise to that level.

January 22, 2001
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers.
  1. Affidavit of Antonio Brown in support of application for waiver or reduction of filing fee/poor person relief sworn to October 19, 2000;
  2. Order of Presiding Judge Susan Phillips Read dated November 9, 2000;
  3. Claim filed on October 26, 2000.