New York State Court of Claims

New York State Court of Claims

Mc CLOUD v. STATE OF NEW YORK, #2004-028-570, Claim No. 109734, Motion No. M-69051


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

Case Information

DIANE Mc CLOUD The caption of this action is amended sua sponte to reflect the State of New York as the only properly named defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption of this action is amended sua sponte to reflect the State of New York as the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
DIANE Mc CLOUD, pro se
Defendant's attorney:
BY: Elyse J. AngelicoAssistant Attorney General
Third-party defendant's attorney:

Signature date:
November 1, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


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

  1. Notice of Motion and Supporting Affidavit of Diane McCloud, filed
September 2, 2004

Filed Papers: Verified Claim, filed August 16, 2004; Order, Sise, P.J.,

filed August 23, 2004.

An Order has previously been issued reducing the filing fee for this Claimant to $45.00. (McCloud v Taconic Correctional Facility, Ct Cl, August 23, 2004, Sise, P.J., Claim No. 109734). This decision addresses Claimant's subsequent application for poor person status.

CPLR 1101 (c) requires that "[i]f 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 filed an affidavit of service with the instant application that establishes service of the moving papers was not 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, the application would nevertheless be denied. The assignment of counsel 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
to app 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 be a typical bailment claim with damages alleged to be $38.54 for the items lost/stolen and, as such, fails to rise to the level warranting assignment of counsel. Similarly without merit is Claimant's request that she not pay the costs and fees associated with the prosecution of this action. Inasmuch as the filing fee has been addressed, the prosecution of this matter in this court does not require the Claimant to pay any costs or fees. To the extent Claimant must mail pleadings to the Clerk of the Court and the Defendant, the Defendant provides limited free postage on a weekly basis and permits advances for legal mail postage, if the inmate has insufficient funds (see Robbins v State of New York, Claim No. 102325, Motion No. M-62803, UID#2000-006-962, NeMoyer, J., January 9, 2001).

Consequently, Claimant's motion for an order granting her poor person status must be denied. At this juncture, the Court will not grant Claimant's alternative relief; namely, dismissal of her Claim. Claimant's attention is directed to Court of Claims Act § 11-a(2) which provides for recovery of the filing fee paid, if a Claimant prevails. If, upon review of that section, Claimant still wishes to discontinue this action, she shall notify the Court in writing, copy to the Attorney General, within 20 days of the filed date of this decision, at which time the Court will grant Claimant's application.

Based upon the foregoing, the motion is DENIED.

November 1, 2004
Albany, New York

Judge of the Court of Claims

[1] The Assistant Attorney General, by letter dated September 20, 2004, advised the Court the Defendant was taking no position on the application.