New York State Court of Claims

New York State Court of Claims

DE JESUS v. THE STATE OF NEW YORK, #2005-030-507, Claim No. 108003, Motion No. M-69471


Synopsis



Case Information

UID:
2005-030-507
Claimant(s):
MANUEL DE JESUS
Claimant short name:
DE JESUS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108003
Motion number(s):
M-69471
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
MANUEL DE JESUS, 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:
February 3, 2005
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1 to 4 were read and considered on Claimant's motion, brought pursuant to Civil Practice Law and Rules §1101(f), requesting that the court appoint legal counsel:
1,2 Notice of Motion, Affidavit in Support of Application for the Appointment of Counsel

3,4 Filed Papers: Claim [contains Application to Pay Reduced Filing Fee by Manuel De Jesus, Claimant, sworn to July 2, 2003]; Answer

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

Manuel De Jesus, the inmate Claimant, alleges in his claim that the Defendant's agents failed to provide him with adequate and timely medical care, and wrongfully confined him. [See Claim Number 108003, filed July 11, 2003]. Specifically he states that medical personnel failed to timely administer appropriate tests to determine if he had tuberculosis, while he was in the custody of the New York State Department of Correctional Services in various institutions. 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). (July 29, 2003, Sise, J,).

No provisions in the Court of Claims Act concern the prosecution of actions under poor person status or the appointment of counsel at public expense. 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).

In his previous application for fee reduction, Claimant had indicated that he had no income beyond prison wages, and whatever income was provided by family, owned no property, had no savings, and had 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). 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 County 1990).

Claimant indicates in his Affidavit in Support of the present application that he believes he would prevail on his claim, and that his case would likely result in an award of damages sufficient to provide for reasonable legal fees and disbursements to an attorney. He indicates that he is unable to communicate effectively in the English language - a contention belied by the papers submitted - and required an interpreter at his criminal trial.[1] Finally, he states that he has been attempting to secure the services of an attorney on his own, and, indeed, had forwarded copies of documents to one attorney who has not indicated whether he will represent Claimant.

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 has Claimant shown that his is a "proper case" warranting the appointment of counsel at public expense, given that the underlying claim does not involve the potential loss of liberty or a fundamental right, and is of average complexity.

Accordingly, Motion No. M-69471 is denied in its entirety.

February 3, 2005
White Plains, New York

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




[1] Upon adequate notice, the Court routinely arranges for interpreters when trial is scheduled.