New York State Court of Claims

New York State Court of Claims

RIVERA v. THE STATE OF NEW YORK, #2006-030-534, Claim No. 111764, Motion No. M-71175


Synopsis



Case Information

UID:
2006-030-534
Claimant(s):
ADRIAN RIVERA
Claimant short name:
RIVERA
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111764
Motion number(s):
M-71175
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
ADRIAN RIVERA, PRO SE
Defendant’s attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERAL
BY: JEANE L. STRICKLAND SMITH, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
May 1, 2006
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers, numbered 1 to 3, were read on Claimant’s motion for an Order


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

  1. Affidavit in Support of Application for Waiver of filing and service fees and cost and to proceed as a Poor Person by Adrian Rivera, Claimant
  1. Affirmation by Jeane L. Strickland Smith, Assistant Attorney General, dated March 14, 2006 and attached exhibits
  1. Filed Paper: Claim
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 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 $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.

May 1, 2006
White Plains, New York

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