New York State Court of Claims

New York State Court of Claims

SLOANE v. THE STATE OF NEW YORK, #2003-030-511, Claim No. 106734, Motion No. M-66021


Synopsis


Pro se inmate's motion for poor person relief and appointment of counsel denied. County Attorney not served. Not a proper case warranting appointment of counsel at public expense

Case Information

UID:
2003-030-511
Claimant(s):
DEREK SLOANE
Claimant short name:
SLOANE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106734
Motion number(s):
M-66021
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
DEREK SLOANE, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: MARY B. KAVANEY, ASSISTANT ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
January 22, 2003
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

The following papers, numbered 1 to 4, were read on Claimant's motion for the


appointment of counsel:

  1. Application of Derek Sloane dated November 1, 2002
  1. Letter from Mary B. Kavaney, Assistant Attorney General, dated November 25, 2002
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 insufficient funds.

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 negative one.

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.


January 22, 2003
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims