New York State Court of Claims

New York State Court of Claims

McCAIN v. THE STATE OF NEW YORK, #2005-030-532, Claim No. 110056, Motion No. M-69992


Synopsis



Case Information

UID:
2005-030-532
Claimant(s):
ADRIAN McCAIN
Claimant short name:
McCAIN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110056
Motion number(s):
M-69992
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
ADRIAN McCAIN, 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:
June 2, 2005
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:

  1. Application Request Motion to the Court for Assignment of Counsel by Adrian McCain, Claimant
  1. Letter to Court dated April 14, 2005 by Elyse J. Angelico, Assistant Attorney General
3,4 Filed Papers: Claim, Answer

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

Adrian McCain, the Claimant herein, alleges in Claim Number 110056 that on or about July 17, 2003 while in the recreation area of Sing Sing Correctional Facility (hereafter Sing Sing) near ongoing construction on the B-Block roof, a “small concrete rock came down from the roof and hit Claimant on the right side of the head, thus causing injury.” [Claim Number 110056, ¶ 2]. He asserts that Defendant’s agents negligently failed to protect the inmate Claimant from foreseeable injury by failing to mark off the construction site or otherwise warn of the dangerous condition.

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 $15.00 pursuant to Court of Claims Act §11-a (1) and §1101(f) of the Civil Practice Law and Rules. (November 17, 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 failed to provide any information concerning his income or resources in support of this motion, and indicates only that he is unfamiliar with the “. . . rules, laws and civil practices . . .” and has been unable to find an attorney on his own. Further review of papers filed with his Claim - not filed with this motion - shows that Claimant did complete an Affidavit in Support of Application Pursuant to CPLR 1101(f) for reduction of his filing fee, and indicated therein that he had no assets or income other than correctional facility wages in the amount of $9.50 bi-weekly. There is, nonetheless, little information presented upon which this Court can evaluate Claimant’s entitlement to the relief requested.

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, other than the filing fee, that has already been reduced, there are no 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 County 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 his is a “proper case” warranting the appointment of counsel at public expense. It is not of sufficient complexity, nor does it involve fundamental rights that would justify such appointment.

Accordingly, Motion No. M-69992 is denied in its entirety.

June 2, 2005
White Plains, New York

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