4,5,6 Filed Papers: Claim, Answer, Affidavit in Support of Application Pursuant
to CPLR 1101(f) sworn to September 9, 2002
After carefully reviewing the papers submitted, and the applicable law, the
motion is disposed of as follows:
The claim was filed after enactment of § 11-a Court of Claims Act
requiring a filing fee of $50.00. [See, § 11-a(1) Court of Claims
Act, effective December 7, 1999]. By Order of this Court, Claimant's filing fee
was reduced pursuant to §1101(f) Civil Practice Law and Rules. (Read, P.J.,
filed November 27, 2002).
Since the relief requested necessarily involves consideration of Claimant's
entitlement to representation by counsel at public expense, the Court has
treated the present motion as one seeking poor person relief pursuant to Article
11 of the Civil Practice Law and Rules, which controls consideration of such
relief. § 9(9) Court of Claims Act; Wilson v State of New York, 101
Misc 2d 924 (Ct Cl 1979). A court may grant poor person status to a claimant
upon motion supported by "...an affidavit setting forth the amount and sources
of his...income and listing his...property with its value; that he...is unable
to pay the costs, fees and expenses necessary to prosecute...the action...."
[§ 1101(a) Civil Practice Law and Rules]. The statute also requires that
"...the county attorney in the county in which the action is triable...." be
given notice of the application. § 1101(c) Civil Practice Law and Rules.
In the Affidavit in Support of his 1101(f) application, Claimant indicates that
he has no income or property. No other substantiation of his lack of assets is
Additionally, while it appears the Attorney General's office was served with a
copy of this application, there is no indication that the appropriate county
attorney's office has been served. § 1101(c) Civil Practice Law and Rules;
Bowman v State of New York, 229 AD2d 1024 (4th Dept 1996). This alone
necessitates denial of the application. Additionally, since the filing fee has
already been addressed, prosecuting the matter in this Court does not require
Claimant to pay any further costs or fees. To the extent Claimant may need to
mail papers to the Defendant or the Court, limited free postage is available at
the correctional facility, as well as advances for legal mail if the inmate has
Claimant also seeks appointment of counsel. §1102(a) Civil Practice Law
and Rules. Such relief is generally not available in civil cases, and is
discretionary. Matter of Smiley, 36 NY2d 433 (1975). Courts should not
routinely assign counsel without compensation except in a "proper case"
[Matter of Smiley, supra, at 441]; "...which would include cases
where indigent civil litigants face grievous forfeiture or loss of a fundamental
right." Morgenthau v Garcia, 148 Misc 2d 900,903 (Sup Ct NY Co 1990).
In this case, the Claim appears to assert that the Defendant's agents treated
the Claimant with excessive force and engaged in harassment while he was in the
custody of the New York State Department of Correctional Services.
Unfortunately, this is a fairly routine assertion made in Claims against the
State. Claimant indicates that he "lacks experience in the fine points of
(state) law....lack[s] the ability to manage this case (effectively) on his own,
and the complexity of the legal issues, warrants or requires the guiding hands
of counsel at every step in these proceedings...." [Affidavit in Support, Pages
After carefully reviewing the Claim and the papers submitted in support of this
motion, as well as the opposition filed by Defendant, the Court finds Claimant
has not demonstrated that his is a "proper case" warranting the appointment of
counsel at public expense.
Accordingly, Motion No. M-66133 is denied in its entirety.