New York State Court of Claims

New York State Court of Claims

RANDOLPH v. THE STATE OF NEW YORK, #2004-030-574, Claim No. 109465, Motion No. M-68646


Synopsis



Case Information

UID:
2004-030-574
Claimant(s):
JOE RANDOLPH The caption has been amended to reflect the only proper defendant.
Claimant short name:
RANDOLPH
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption has been amended to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109465
Motion number(s):
M-68646
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
JOE RANDOLPH, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: MARY B. KAVANEY, ASSISTANT ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
September 13, 2004
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1 to 3 were read and considered on Claimant's motion


for permission to proceed as a poor person and for appointment of counsel:

  1. Affidavit in Support of an Application pursuant to CPLR Rule 1101(F) by Joe Randolph, Claimant
  1. Affirmation in Opposition by Mary B. Kavaney, Assistant Attorney General and attached exhibits
  1. Filed Papers: Claim After carefully considering the papers submitted[1] and the applicable law the motion is disposed of as follows:
No provisions in the Court of Claims Act concern the prosecution of actions under poor person status. Accordingly, Article 11 of the Civil Practice Law and Rules controls consideration of such relief. § 9(9) Court of Claims Act; Wilson v State of New York, 101 Misc 2d 924 (Ct Cl 1979). Civil Practice Law and Rules § 1101(a) allows a court to 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 . . . " 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).

The claim was filed after enactment of Court of Claims Act § 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 reduced to $30.00 pursuant to Civil Practice Law and Rules §1101(f). (June 16, 2004, Hard, J,).

Claimant indicates he has only prison wages in the amount of $13.00 per month, does not have any other source of income nor does he own any other property; nor is any other person able to pay the filing fee who has a beneficial interest in the outcome of this proceeding.

The only fee in the Court of Claims is the filing fee, which has already been reduced. Additionally, as the need arises, the Court may authorize payment of a particular item of expense upon a showing of sufficient cause.

The proof of service filed with the present application does not indicate 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).

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).

After carefully reviewing the Claim, and the papers submitted in support of this motion, it is denied initially on procedural grounds because Claimant did not serve the appropriate County Attorney's Office with a copy of this application. More substantively, the Court finds Claimant has not demonstrated that permission to proceed as a poor person is warranted, nor that his is a "proper case" warranting the appointment of counsel at public expense. The claim appears to be a fairly routine bailment matter.

Accordingly, Motion No. M-68646 is denied in its entirety.

September 13, 2004
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1]Although the Attorney General opposes the motion and indicates that the Claim is subject to dismissal because it lacks a verification in conformance with Court of Claims Act § 11(b), and also that her office rejected and returned the claim in accordance with Civil Practice Law and Rules §3022, there is no cross-motion before the Court asking for dismissal of the claim.