New York State Court of Claims

New York State Court of Claims

HERMAN v. THE STATE OF NEW YORK, #2003-016-076, Claim No. 106343, Motion No. M-67135


Synopsis


Pro se
inmate's motion to proceed as a poor person and to have counsel assigned was denied.

Case Information

UID:
2003-016-076
Claimant(s):
JORGE HERMAN
Claimant short name:
HERMAN
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106343
Motion number(s):
M-67135
Cross-motion number(s):

Judge:
Alan C. Marin
Claimant's attorney:
Jorge Herman
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Jeane L. Strickland Smith, Esq.
Third-party defendant's attorney:

Signature date:
October 2, 2003
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is Jorge Herman's motion to proceed as a poor person and to have counsel assigned. Mr. Herman's underlying claim arises from an incident in which he fell from his top bunk at Mid-Orange Correctional Facility while sleeping. There are no provisions in the Court of Claims Act concerning the prosecution of actions under poor person status, and thus the Civil Practice Law and Rules ("CPLR") govern. See Court of Claims Act §9, subdivision 9; Wilson v State of New York, 101 Misc 2d 924, 925, 422 NYS2d 347, 349 (Ct Cl 1979). Poor person status is authorized under CPLR 1101, which addresses, among other things, filing fees. In this case, claimant made an application pursuant to CPLR 1101(f) for a reduction in the filing fee required by Court of Claims Act §11-a(1). In an order of Hon. Susan Phillips Read filed July 25, 2002, it was found that claimant was entitled to a reduced filing fee of $45.00. Aside from the filing fee, there are no other fees in the Court of Claims and in fact, section 27 of the Court of Claims Act prohibits certain costs, fees and disbursements.

Nevertheless, payment of a particular item of expense as the need arises may be available at the proper time upon a showing of sufficient cause. Mapp v State of New York, 69 AD2d 911, 415 NYS2d 278 (3d Dept 1979); Wilson, supra. Because no such showing has been made by claimant at this time, his motion for poor person status is denied.

With regard to claimant's request for the assignment of counsel, such is generally not available for civil cases. See Matter of Smiley, 36 NY2d 433, 369 NYS2d 87 (1975).

For the foregoing reasons, having reviewed the submissions,[1] IT IS ORDERED that motion no. M-67135 be denied.



October 2, 2003
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




  1. [1]The following were reviewed: claimant's "Notice of Application for the Assignment of Counsel on Claim as Provided Pursuant to CPLR §§1101; 1102, [and] the Court of Claims Act"; defendant's affirmation in opposition; and claimant's "Response to Affirmation in Opposition to Assignment of Counsel."