On January 21, 2004, the following papers were read on motions by Claimant for
poor person status and the striking of the affirmative defenses:
Notice of Motion (M-66890)
Notice of Motion and Affidavit Annexed (M-67487)
Notice of Motion with Affidavit and Exhibits Annexed (M-67820)
Affirmations in Opposition and Exhibits Annexed
Filed Papers: Claim; Answer
Upon the foregoing papers, the motions are all denied.
Claimant has filed three motions, two seeking poor person relief beyond the
filing fee issue, and the third seeking to strike/dismiss the Defendant's two
First, in Motion No. M-66890, Claimant seeks permission to proceed as a poor
person and for assignment of an attorney. Claimant has already had imposed a
reduced filing fee herein pursuant to CPLR 1101(f) by Judge Richard E. Sise on
May 27, 2003, but there are no other costs necessary to prosecute a claim in the
Court of Claims, and thus no other privileges are available under CPLR article
11. To the extent that this motion seeks the appointment of counsel to
represent the Claimant, relief that is discretionary (Matter of Smiley,
36 NY2d 433; Stephens v State of New York, 93 Misc 2d 273), it is
For litigants in private litigation, absent statutory provision therefor, as in
the instant claim which seeks damages, inter alia, for Defendant's
alleged negligence relating to an assault upon Claimant, there is no power in
the courts to direct the provision of counsel or to require the compensation of
retained counsel out of public funds (Matter of Smiley,
Furthermore, Claimant has failed to demonstrate that he served a copy of this
motion upon the County Attorney as required by CPLR 1101(c), (see
Bowman v State of New York, 229 AD2d 1024). Therefore, the first motion
for poor person status is denied.
In Motion M-67820, Claimant seeks the additional relief of obtaining copies of
documents demanded in discovery proceedings without the payment of any copying
fees. Appended to the moving and opposing papers is correspondence between the
parties arguing the entitlement of such relief as a part of a poor person
motion, with Claimant relying heavily upon Shell v State of New York (307
AD2d 761), and inferring from language therein that such relief may be
available. While I understand Claimant's position, unfortunately it is
unavailing, and this motion too must be denied. I note as well that in this
second motion relating to poor person relief Claimant has failed to demonstrate
that he served a copy of this motion upon the County Attorney, and this provides
yet another basis for its denial.
Claimant is not entitled to any greater rights than a nonprisoner pro se
litigant who does not have the funds to carry out all the normal steps of
litigation, including discovery. Claimant relies upon language in Shell,
which quotes from Gittens v State of New York (175 AD2d 530, 530-531):
"Civil Rights Law §79(3) and §79-a(3) specifically provide that the
State shall not be liable for any expense of, or related to, inmate litigation
and shall not be required to perform any services related thereto, particularly
where, as here, poor person status has not been granted" (emphasis
added). Claimant presumes that had poor person status been granted in the above
cited cases, then the relief of free copying would be available, but that
assumption is incorrect, as there is no general provision which requires the
State to pay the litigation expenses in claims brought against it.
In short, Claimant is not entitled to free photocopies of discovery documents,
and to the extent that Claimant's motion may be construed as an attempt to
obtain documents free of charge, Motion No. M-67820 must be denied.
Claimant's third motion (Motion No. M-67487) seeks to "dismiss" the affirmative
defenses in the answer which allege, in essence, culpable conduct by Claimant
and culpable conduct by some third person or persons. Claimant asserts that
these affirmative defenses are without merit, citing provisions of the
Correction Law and various regulations of the State, to wit, 9 NYCRR
7003.2(2)(c), 7003.2(2)(c)(1), 7003.2(2)(c)(3) and 7003.3(a). He suggests that
these regulations apply because a correction officer was allegedly sleeping on
duty and therefore not capable of assisting or preventing the assault and
injuries that Claimant allegedly sustained.
The Defendant opposes this relief on the ground that it is legally required to
place Claimant on notice of the manner in which this case will be defended.
Defendant notes that it is too early to determine whether there will be proof to
sustain these allegations and that Claimant's own statement supports the
affirmative defenses, to wit, that the attack could have been orchestrated by an
assailant from an adjoining cube, without ever leaving that cube. Defendant
asserts that it is a question of proof as to whether the correction officer was
performing his duties, and, at this pleading stage, it is premature to test the
credibility of either Claimant or the correction officer.
These affirmative defenses are merely allegations, subject to proof, and there
is no basis to strike or dismiss them. At the conclusion of discovery or at
trial, the Defendant will either put forward proof to support its allegations,
or they will be struck. It is premature to deprive the Defendant of such
assertions at this time, and the Defendant was obliged to place Claimant on
notice thereof or the defenses could be deemed waived. Claimant suffers no
prejudice, and Defendant is entitled to make such allegations, subject to proof
thereof. The motion to strike the affirmative defenses is thus denied.
In sum, all three motions brought by Claimant are denied.