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
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.
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. Accordingly, Claimant is not granted poor person
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
Accordingly, Motion No. M-70790 is denied in its entirety.