New York State Court of Claims

New York State Court of Claims

DREW v. THE STATE OF NEW YORK, #2004-013-014, Claim No. 107733, Motion Nos. M-66890, M-67487, M-67820


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
M-66890, M-67487, M-67820
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
BY: REYNOLDS E. HAHN, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 26, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


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 affirmative defenses.

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 denied.

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, supra).

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.

February 26, 2004
Rochester, New York
Judge of the Court of Claims