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,
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.