After carefully considering the papers submitted and the applicable law
Claimant’s motion is denied for the following reasons:
Adrian Rivera alleges in claim number 111764 that Defendant’s agents
failed to provide him with adequate and timely medical care while he was in the
custody of the New York State Department of Correctional Services at various
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). (January 13, 2006, 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 other than correctional
facility wages in the amount of $12.00 monthly, nor does he own any property or
any bank accounts. No others have a beneficial interest in the results of this
case. He does not indicate the basis for his request for the appointment of
counsel at public expense. The Court notes that attorney’s fees in
medical malpractice cases are generally arranged between the client and the
attorney on a contingency basis.
Additionally, 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).
As noted, 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-71175 is denied in its entirety.