New York State Court of Claims

New York State Court of Claims

SCOTT v. THE STATE OF NEW YORK, #2005-030-567, Claim No. 111371, Motion No. M-70790


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 23, 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 of Request to Proceed as a Poor Person by Kemorley Scott, Claimant
  1. Filed Papers: Claim
No Opposition Filed

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

Kemorley Scott alleges in Claim Number 111371 that while he was incarcerated at Downstate Correctional Facility (hereafter Downstate) Defendant's agents failed to provide him with adequate medical care. [Claim Number 111371, ¶ 2]. Specifically, Claimant alleges that medical personnel failed to treat his ringworm and genital warts, and/or commenced treatment and stopped [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 $15.00 pursuant to Court of Claims Act §11-a (1), and Civil Practice Law and Rules §1101(f). (October 4, 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 has no income, resources or property. [Affidavit in Support of Request to Proceed as Poor Person,¶¶5, 6]. He also indicates that he does not know of any attorney who is willing to represent him and asks that an attorney of suitable experience be assigned to represent him without compensation [ibid. ¶7].

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 allegation of inadequate medical treatment or ministerial neglect. It is not of sufficient complexity, nor does it involve fundamental rights that would justify such an appointment.

Accordingly, Motion No. M-70790 is denied in its entirety.

December 23, 2005
White Plains, New York

Judge of the Court of Claims