New York State Court of Claims

New York State Court of Claims

MOJICA v. THE STATE OF NEW YORK, #2005-030-563, Claim No. 111314, Motion No. M-70761


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
December 21, 2005
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 3, were read on Claimant's motion for permission to

proceed as a poor person and for appointment of counsel:

  1. Affidavit in Support by Kenneth Mojica, Claimant
2,3 Filed Papers: Claim, Answer
No Opposition Filed

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

Kenneth Mojica, the Claimant herein, alleges in Claim Number 111314 that Defendant's agents at Green Haven Correctional Facility (hereafter Green Haven) negligently allowed dangerous fitness equipment to be used at the facility, resulting in Claimant's serious injury. [Claim Number 111314, ¶ 3]. Specifically, Claimant alleges that he was injured when part of a forty (40) pound dumbbell he had lifted into the air detached, striking claimant in the forehead [id.].

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 $25.00 pursuant to Court of Claims Act §11-a (1), and Civil Practice Law and Rules §1101(f). (September 23, 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).

In terms of his income or resources, Claimant indicates that he receives only prison wages in the amount of $2.25 per week, and has no other income, resources or property. [Affidavit in Support of Application Pursuant to CPLR 1101(f), ¶¶5-10].

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. Accordingly, Claimant is not granted poor person status.

With respect to Claimant's application for the appointment of Counsel [See 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. What Claimant has alleged is a relatively straightforward personal injury claim. It is not of sufficient complexity, nor does it involve fundamental rights that would justify such appointment.

Accordingly, Motion No. M-70761 is denied in its entirety.

December 21, 2005
White Plains, New York

Judge of the Court of Claims