New York State Court of Claims

New York State Court of Claims

THOMAS v. THE STATE OF NEW YORK , #2004-030-581, Claim No. 109647, Motion No. M-68898


Synopsis



Case Information

UID:
2004-030-581
Claimant(s):
MARTIN THOMAS
Claimant short name:
THOMAS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109647
Motion number(s):
M-68898
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
MARTIN THOMAS, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
October 20, 2004
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers, numbered 1 to 4, were read on Claimant's motion for an Order

permitting him to proceed as a poor person, and for appointment of counsel, submitted on


September 1, 2004:

1-3 Petition and Affidavit by Martin Thomas, Claimant; Affidavit of Service

4 Filed Papers: Claim
After carefully considering the papers submitted and the applicable law Claimant's motion is denied for the following reasons:

Martin Thomas, the inmate Claimant, alleges in his claim, among other things, that the Defendant is liable for his wrongful confinement based upon a false misbehavior report. [See Claim, filed July 23, 2004]. The claim was filed after the 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). (August 3, 2004, Sise, J,).

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. Court of Claims Act § 9(9); 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).

Claimant has indicated that his income is $25.60 per month from prison wages, that he has no savings, or other resources, and only state issued property except for religious reading books and a typewriter. He states that no other person has a beneficial interest in the outcome of this proceeding.

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).

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.

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 wrongful confinement matter.

Accordingly, Motion No. M-68898 is denied in its entirety.

October 20, 2004
White Plains, New York

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