New York State Court of Claims

New York State Court of Claims

RUSH v. THE STATE OF NEW YORK, #2005-030-535, Claim No. 110361, Motion No. M-69767


Synopsis



Case Information

UID:
2005-030-535
Claimant(s):
BASHEEN RUSH
Claimant short name:
RUSH
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110361
Motion number(s):
M-69767
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
BASHEEN RUSH, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: BARRY KAUFMAN, ASSISTANT ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
June 1, 2005
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers, numbered 1 to 5, were read on Claimant's motion for an Order


permitting him to proceed as a poor person, and for appointment of counsel:

1,2 Petition by Basheen Rush, Claimant; Untitled Document in Affidavit form by Basheen Rush, Claimant

  1. Letter to Court dated April 27, 2005 by Barry Kaufman, Assistant Attorney General, taking no position with regard to application
4,5 Filed Papers: Claim, Answer After carefully considering the papers submitted and the applicable law Claimant's motion is denied for the following reasons:

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 1996).

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-69767 is denied in its entirety.

June 1, 2005
White Plains, New York

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