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
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
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.