New York State Court of Claims

New York State Court of Claims

ROJAS v. THE STATE OF NEW YORK, #2002-015-224, Claim No. 104242, Motion No. M-64423


Application to proceed as poor person pursuant to CPLR 1101 and for assignment of an attorney denied for failure to serve appropriate county attorney.

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:
Glenn Rojas, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: G. Lawrence Dillon, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
February 14, 2002
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant's motion for an order pursuant to Civil Practice Law and Rules (CPLR) § § 1101 and 1102 permitting him to proceed as a poor person and requesting the appointment of an attorney to represent him is denied. By order dated May 18, 2001 Presiding Judge Susan Phillips Read granted claimant's application which sought a reduction of the filing fee required by Court of Claims Act § 11-a (1).

The claim was filed on May 7, 2001 pursuant to an order of this Court which granted claimant's motion for late claim relief. It seeks the recovery of money damages for personal injuries allegedly sustained by the claimant as a result of an assault and battery committed by unnamed correction officers at Mid-State Correctional Facility, Marcy, New York on March 4, 2000.

Subdivision (c) of section 1101 provides, in relevant part, that a person seeking poor person status must give notice of his application to all parties "and notice shall also be given to the county attorney in the county in which the action is triable." It is alleged in the claim that the assault and battery occurred at Mid-State Correctional Facility. Since that facility is located in Oneida County which is within the Utica District of the Court of Claims (see, 22 NYCRR § 206.4 [a]) and since claimant was at the time of accrual and continues to the present to be incarcerated in a facility operated by the New York State Department of Correctional Services (Upstate Correctional Facility, Malone, New York) trial of this matter will be held at Mid-State Correctional Facility in Oneida County.

Accordingly, notice of the claimant's application was required to be served on the Oneida County Attorney. Here, for reasons unexplained, claimant erroneously served the Albany County Attorney and his mistake was compounded by the failure of that office to detect claimant's error.[1]

It is well established that the failure to serve the appropriate county attorney as required by CPLR 1101 (c) is a 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 on the Albany County Attorney does not constitute service on the Oneida County Attorney and the claimant has in that regard failed to satisfy the statutory obligation imposed upon one seeking relief pursuant to CPLR § 1101.

Moreover, it is equally well established 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 for personal injury does not rise to that level

February 14, 2002
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated December 6, 2001;
  2. Affidavit of Glenn Rojas sworn to December 6, 2001 with exhibits;
  3. Letter dated December 14, 2001 from Darius Shahinfar;
  4. Affirmation of G. Lawrence Dillon dated December 17, 2001;
  5. Statement of Glenn Rojas dated December 17, 2001 with attachments;
  6. Statement of Glenn Rojas dated January 11, 2002 with attachments.

[1]By letter dated December 14, 2001, Assistant County Attorney Darius Shahinfar acknowledged receipt of claimant's application and expressed no opposition to the motion, reserving any and all rights which may arise in the future regarding this matter.