New York State Court of Claims

New York State Court of Claims

MEJIA v. THE STATE OF NEW YORK, #2007-015-247, Claim No. 110969, Motion No. M-73769


Motion for poor person status and the assignment of counsel was denied.

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:
Luis Mejia, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney GeneralNo Appearance
Third-party defendant’s attorney:

Signature date:
October 29, 2007
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate proceeding pro se, moves for poor person status and the assignment of counsel. Claimant alleges that the defendant was negligent in failing to provide adequate medical care at Washington Correctional Facility ("Washington CF") from March 17, 2004 through July 2004 and thereafter at Mt. McGregor Correctional Facility ("Mt. McGregor CF") from July 2004 through the present. By decision and order filed August 16, 2007 (Motion No. M-73247) the Court granted the defendant's motion to dismiss the claim as time-barred to the extent it alleges malpractice arising out of the treatment rendered at Washington CF. The prior motion was otherwise denied.

CPLR 1101 sets forth the procedures applicable to a motion for poor person status and CPLR 1102 grants the Court discretion to assign an attorney in its order granting such a motion. CPLR 1101 requires, inter alia, that an application for poor person status be supported by an affidavit setting forth the amount and sources of the moving party's income and assets and that the movant is unable to pay the costs, fees, and expenses necessary to prosecute or defend the action. In support of the instant application, claimant avers that he has no assets and no income other than his correctional facility wages. Neither the amount of his wages nor the balance in his correctional facility trust account was provided. Furthermore, the claimant has already paid the initial filing fee and no other fees or costs are required in the prosecution of this action in the Court of Claims.

With respect to the claimant's request for the assignment of counsel, the Court of Appeals held in Matter of Smiley (36 NY2d 433 [1975]) that there is no constitutional or statutory requirement that indigents be assigned private counsel in civil litigation. In so holding the Court recognized that unlike a defendant in a criminal proceeding, most civil litigants are not facing a "risk of loss of liberty or grievous forfeiture" (id. at 437). While the Court in Smiley made clear that civil litigants have no absolute right to assigned counsel, it recognized that "[t]he courts have a broad discretionary power to assign counsel without compensation in a proper case" (id. at 441; see also CPLR 1102). A "proper case" for the discretionary appointment of counsel includes situations in which a litigant is faced with grievous forfeiture or the loss of a fundamental right (Wills v City of Troy, 258 AD2d 849 [1999], lv dismissed 93 NY2d 1000 [1999]; Morgenthau v Garcia, 148 Misc 2d 900, 903 [1990]). The Court does not view the allegations made here as so compelling as to warrant the assignment of counsel.

The claimant's motion is denied.

October 29, 2007
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated July 17, 2007;
  2. Affidavit of Luis Mejia sworn to July 17, 2007.