4,5 Filed Papers: Claim, Answer After carefully considering the papers submitted
and the applicable law Claimant's motion is denied for the following
Basheen Rush, the Claimant herein, alleges in Claim Number 110361 that
Defendant's agents negligently or intentionally lost his property while he was
in the custody of the New York State Department of Correctional Services
(hereafter DOCS) when he was transferred from one housing unit to another and
between correctional facilities.
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 $20.00 pursuant to Court of Claims Act §11-a (1), and Civil
Practice Law and Rules §1101(f). (January 26, 2005, Sise, P.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 motion is brought in ". . . the court in which an action is
triable, or to which an appeal has been or will be taken." [id.].
The statute also requires that ". . . the county attorney in the county in which
the action is triable . . . " be given notice of the application, in addition to
parties to the action if an action has already been commenced. Civil Practice
Law and Rules §1101(c).
Claimant indicates that he has no assets or income, and that he is unable to
pay the costs, fees and expenses necessary to prosecute the action, and that no
other person has a beneficial interest in the outcome of this litigation.
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
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
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-69767 is denied in its entirety.