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
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
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
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.