New York State Court of Claims

New York State Court of Claims

BROWN v. THE STATE OF NEW YORK, #2004-030-604, Claim No. 109459, Motion No. M-69178


Synopsis



Case Information

UID:
2004-030-604
Claimant(s):
LEYTON BROWN
Claimant short name:
BROWN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109459
Motion number(s):
M-69178
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
LEYTON BROWN, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: ELYSE J. ANGELICO, ASSISTANT ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
December 13, 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 November 3, 2004:
1,2 Notice of Motion by Leyton Brown, Claimant; Affidavit of Service
3 Letter from Assistant Attorney General dated October 15, 2004
4 Filed Papers: Claim (contains Affidavit in Support of Application Pursuant to CPLR 1101(f) by Leyton Brown, Claimant
After carefully considering the papers submitted and the applicable law Claimant's motion is denied for the following reasons:

Leyton Brown, the inmate Claimant, appears to allege in his claim that the Defendant's agents failed to protect him from an attack by fellow inmates. [See, Claim Number 109459, filed June 9, 2004]. Specifically, he states "Several inmate threaten me to kill me I report it to my therapist, counselor and CO Nelson I ask them to put me in PC but they refuse to put me in PC. On May 24, 2004 inmate Rodriguez . . . threaten me to nife me and stab me in my forehead with a pen. I received seven suture from the wound by the pen. He also bite me on my right hand so I seek . . . [damages] of . . . for injuries, pain, and suffering. (sic)." No Answer has been filed.

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 $40.00 pursuant to Civil Practice Law and Rules §1101(f). (June 16, 2004, Hard, 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 indicates that he has no income, no savings, and no other resources.

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). He indicates that he is ". . . a layman to the law, so I am asking the Court kindly to give me a lawyer to represent me." [Notice of Motion, Page 1]. 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-69178 is denied in its entirety.

December 13, 2004
White Plains, New York

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