New York State Court of Claims

New York State Court of Claims

JOHNSON v. THE STATE OF NEW YORK, #2004-028-554, Claim No. 106813, Motion No. M-68632


Synopsis


Claimant's application for poor person status and assignment of counsel in slip and fall claim is denied.



Case Information

UID:
2004-028-554
Claimant(s):
DONOVAN JOHNSON
Claimant short name:
JOHNSON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106813
Motion number(s):
M-68632
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
DONOVAN JOHNSON, pro se
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
August 30, 2004
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on Claimant's application pursuant to CPLR 1101 for poor person status and assignment of counsel:

  1. Affidavit of Donovan Johnson, filed June 2, 2004 (Johnson Affidavit);
  1. Opposition Papers: NONE.
Filed Papers: Verified Claim, filed October 21, 2002; Order, Read, P. J. , filed November 22, 2002.


An Order has previously been issued reducing the filing fee for this Claimant to $20.00. (Johnson v State of New York, Ct Cl, November 22, 2002, Read, P. J., Claim No. 106813). This decision addresses Claimant's new request for poor person status.

CPLR 1101 (c) requires that "if an action has already been commenced, notice of the motion shall be served on all parties, and notice shall also be given to the county attorney in the county in which the action is triable..." This requirement is significant because the payment of the witness fees, and the other privileges of a poor person (see CPLR 1102), may be a county charge. The failure to comply with this section renders an application defective. Sebastiano v State of New York, 92 AD2d 966; Harris v State of New York, 100 Misc 2d 1015, 1016. Here, Claimant has not filed an affidavit of service with the instant application and as such has failed to establish service of the moving papers in accordance with the CPLR. The Court therefore denies the instant application.

Even if the Court were to countenance the failure to serve the county attorney and the Attorney General, the application would nevertheless be denied. Aside from the filing fee, which has already been addressed, there are no other fees in the Court of Claims and in fact, section 27 of the Court of Claims Act prohibits certain costs, fees and disbursements (see Bonnette v State of New York, Ct Cl, Marin, J., Claim No. 108849, UID #2004-016-018, May 3, 2004). The assignment of counsel, which is one of the privileges the Court may order for a litigant bestowed with poor person status, in civil matters is discretionary and is generally denied except in cases involving grievous forfeiture or loss of a fundamental right (see Matter of Smiley, 36 NY2d 433; Wills v City of Troy, 258 AD2d 849, lv
dismissed
93 NY2d 1000; Pittman v State of New York, Claim No. 101942, Motion No. M-61372, UID#2000-019-511, Lebous, J., April, 18, 2000) A review of the pleadings reveals this case to involve a slip and fall, the type of claim which is handled routinely on a contingent fee basis by counsel. Consequently, Claimant's motion for an order granting him poor person status must be denied.

Based upon the foregoing, the motion is DENIED.


August 30, 2004
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims