New York State Court of Claims

New York State Court of Claims

COX v. THE STATE OF NEW YORK , #2004-030-599, Claim No. 109825, Motion No. M-69140


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Claimant's attorney:
Defendant's attorney:
No appearance
Third-party defendant's attorney:

Signature date:
December 10, 2004
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 3, were read on Claimant's motion for an Order permitting him to proceed as a poor person, and for appointment of counsel, submitted on October 20, 2004:
  1. Affidavit in Support of Application pursuant to CPLR §1101(f)
  2. Affidavit of Service
  3. Filed Papers: Claim
After carefully considering the papers submitted and the applicable law Claimant's motion is denied for the following reasons:

Rico Cox, the inmate Claimant, alleges in his claim that the Defendant's agents failed to provide him with adequate and timely medical care from approximately October 1999 through, apparently, May 2003. [See Claim Number 109825, filed September 10, 2004]. Specifically, he states that he was refused medical treatment for a condition diagnosed by facility personnel at one facility, when he was seen at another facility, and that medication he was prescribed had harmful side effects causing him permanent injury that he was not warned about. He alleges he served a Notice of Intention to file a claim upon the Office of the Attorney General on or about July 7, 2003.

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). (September 21, 2004 Sise, J,). No other fees are required in the Court of Claims.

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 NewYork, 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 indicates that he has no income other than that from prison wages in the amount of $6.00 per week, and has no savings or any other assets. He states that no other person has a beneficial interest in this claim. He does not indicate the basis for his request for the appointment of counsel at public expense, except to say that he would like a "suitable attorney."

Additionally, 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).

As noted, there are no other fees in the Court of Claims. As the need arises, the Court may authorize payment of a particular item of expense upon a showing of sufficient cause, however, no such showing has been made here.

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.

Accordingly, Motion No. M-69140 is hereby in all respects denied.

December 10, 2004
White Plains, New York

Judge of the Court of Claims