3,4,5 Filed Papers: Claim, Answer, Affidavit in Support of Application Pursuant
to CPLR 1101(f)
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 October 29, 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, and indicates elsewhere only that he "...lacks
experience in the fine points of (state) law,....[and that] the lack of 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....[and he] request[s] the...court may take notice of the fact
that most indigent incarcerated prisoners do not in fact have the resources,
knowledge and experience needed to find counsel willing to represent them
without charge (or at best with the hope of a contingent payment in some
cases)." [Application of Derek Sloane, Pages 2-4].
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
wrongfully denied Claimant the opportunity to attend his grandmother's funeral.
In a recitation demonstrating Claimant's familiarity with New York State
Department of Correctional Services (hereafter DOCS) policy regarding funeral
visits, Claimant charges that in the case of an "unverified relationship", the
facility Superintendent is to make the final determination as to an inmate's
attendance. Presumably - although this is not clear in the Claim - the
Superintendent did not make a final determination or the determination was a
After carefully reviewing the Claim and the papers submitted in support of this
motion, 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-66021 is denied in its entirety.