New York State Court of Claims

New York State Court of Claims

FULLAN v. THE STATE OF NEW YORK , #2003-030-563, Claim No. 107411, Motion No. M-66806


Synopsis


Motion for assignment of counsel denied. Claim alleges failure to protect inmate claimant from assault by fellow inmates.

Case Information

UID:
2003-030-563
Claimant(s):
DAN FULLAN
Claimant short name:
FULLAN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107411
Motion number(s):
M-66806
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
DAN FULLAN, 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:
July 29, 2003
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers, numbered 1 to 5, were read and considered on Claimant's motion


for the appointment of Counsel:

1,2 Motion for Assignment of Counsel; Application for Appointment of Counsel by Dan Fullan, Claimant

3-5 Filed Papers: Claim, Answer, Affidavit in Support of Application pursuant to Civil Practice Law and Rules §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 Court of Claims Act of § 11-a requiring a filing fee of $50.00. [See, Court of Claims Act § 11-a(1), effective December 7, 1999]. By Order of this Court, Claimant's filing fee was not reduced pursuant to Civil Practice Law and Rules §1101(f), the Court having found that Claimant possessed sufficient resources to pay the entire fee. (March 14, 2003, Sise, J.).

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. Court of Claims Act § 9(9); 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...." [Civil Practice Law and Rules § 1101(a)]. The statute also requires that "...the county attorney in the county in which the action is triable...." be given notice of the application. Civil Practice Law and Rules § 1101(c).

In the Affidavit in Support of his 1101(f) application, Claimant indicates that he has income from prison wages only, no bank accounts, and owns no property. As noted, this Court has already determined that Claimant has sufficient resources to pay the full filing fee.

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. Civil Practice Law and Rules § 1101(c); 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. Civil Practice Law and Rules §1102(a). 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 asserts that the Defendant's agents failed to protect Claimant from an assault by a fellow inmate while he was incarcerated at Green Haven Correctional Facility - an unfortunately common occurrence in a prison setting.

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-66806 is denied in its entirety.


July 29, 2003
White Plains, New York

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