New York State Court of Claims

New York State Court of Claims

HARRIS v. STATE OF NEW YORK, #2001-018-065, Claim No. 95469, Motion No. M-62645


Claimant's motion requesting permission not to appear for trial and permission to proceed as a poor person was 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:
ELIOT SPITZERAttorney General of the State of New York
Third-party defendant's attorney:

Signature date:
February 23, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant brings this motion for an order waiving his right to appear in person at the trial

and granting him poor person relief pursuant to Article 11 of the CPLR. The Court has

considered the following documents in determining the motion:

Notice of Motion................................................................................1

Affidavit of Darryl Harris in support for waiving Claimant's

appearance at trial...................................................................2

Affidavit of Darryl Harris in support of poor person application.......3

Defendant submitted no opposition to the motion. Claimant seeks permission from the Court to not appear at the trial of this claim. Claimant bases his request upon his experience appearing for the trial of another claim. In his motion papers, Claimant explains that in appearing for trial on claim number 97709, he was transported to other facilities, not provided his "overnight court bag" which in addition to his clothes, contained the necessary court documents to prove his case, he was harassed and verbally abused by correction officers at other facilities, fed only cold meals, and kept away from the facility where he is currently regularly housed for 10 ½ days. Claimant wishes to avoid such "cruel and unusual punishment" again. (Harris affidavit ¶ 4, page 3)

The Court does not require that the claimant appear for trial in a civil case. By not appearing, Claimant risks dismissal of his claim, since sufficient evidence must be introduced to establish a prima facie case. Claimant is currently proceeding pro se, without his appearance at trial there would be no one to present evidence; and furthermore, based upon the allegations in the claim it is unlikely Claimant could be successful in proving his case if he fails to testify.

As for Claimant's request for poor person relief, this portion of the motion must also be denied. The benefits of being granted permission to proceed as a poor person are set forth in CPLR 1102, which include the assignment of counsel, relief from the payment of costs and fees, and where permission to appeal by order has been granted a stenographic transcript and permission to submit typewritten appellate briefs and appendices.

The Court notes initially that Claimant's application is insufficient. Claimant has failed to set forth in his poor person application the nature of the action and sufficient facts for the Court to determine the merit of the claim as required by CPLR 1101(a). However, this would not be fatal to the motion since the necessary information was provided in the verified claim previously filed with the Clerk of the Court, upon which the Court can rely to determine the application. (See, Standley v State of New York, Ct. of Cl., J. McNamara, filed March 7, 1997, Claim No. 95051, Motion No. M-54570.) CPLR 1101(c) requires that a copy of the notice of motion must be served upon the County Attorney in the county in which the action is triable. Claimant has not submitted any affidavit of service indicating that the County Attorney was served. The motion can be denied on this ground alone. (See, Bowman v State of New York 229 AD2d 1024.) However, even if the County Attorney had been served Claimant's motion would still be denied.

In this Court, for all claims filed prior to December 7, 1999,[1] no fees or costs are required to prosecute an action. Claimant's claim was filed with the Clerk of the Court on January 14, 1997. Therefore the only relief Claimant can be seeking is the assignment of counsel.

The appointment of counsel in this type of case, which is for personal injuries as a result of the State's alleged medical malpractice, is not required by the constitution or by statute; it is discretionary. (See, Matter of Smiley, 36 NY2d 433; Stephens v State of New York, 93 Misc 2d 273) This is the type of claim that attorneys often accept for a contingency fee, thus claimant may be able to obtain counsel without incurring any up-front attorneys fees. Accordingly, the Court will not exercise its discretion to appoint an attorney to appear without compensation in this matter.

Based upon the foregoing, Claimant's motion is DENIED in its entirety.

February 23, 2001
Syracuse, New York

Judge of the Court of Claims

[1] Effective December 7, 1999, section 11-a of the Court of Claims Act and section 206.5-b of the Uniform Rules for the Court of Claims (22 NYCRR §206.5-b) require that a claim sent to the Clerk's office for filing be accompanied by either a filing fee of fifty dollars ($50.00) or a motion, affidavit or certification pursuant to section 1101 of the CPLR.