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
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.