In motion no. M-73891, claimant Hugh Knight moves for an order striking the
State’s answer. In motion no. M-73907, Mr. Knight moves for an order
reducing his filing fee, permitting him to proceed as a poor person and
appointing him an attorney. In the underlying claim, it is alleged that because
of defendant’s negligence, items of claimant’s personal property
were lost or damaged during a February 21, 2007 search of claimant’s cell
at Sullivan Correctional Facility. As to those portions of the State’s
answer responding to the numbered paragraphs of the claim, claimant apparently
seeks to have them stricken solely on the ground that he disagrees with the
responses. Such is not a valid reason for striking an answer. As to the
State’s affirmative defenses, they are not dispositive of a claim, and
like the allegations in the claim itself, are merely assertions made by a party.
Striking affirmative defenses is generally not warranted in the absence of a
showing of prejudice by the claimant. See, e.g., 5 Weinstein-Korn-Miller, NY
Civ Prac ¶3018.14 at 30-432.
In this case, however, the State’s fourth and fifth affirmative defenses
have jurisdictional implications and are thus appropriate to address. In its
fourth affirmative defense, the State asserts that claimant failed to file his
claim with the Court. Knight did in fact file his claim and the State has
withdrawn such defense. In its fifth affirmative defense, the State asserts
that claimant failed to exhaust his administrative remedies as required by
§10.9 of the Court of Claims Act. In its opposition papers on motion no.
M-73891, the State does not dispute claimant’s assertion that he filed a
facility claim, which was denied, as was his subsequent appeal thereof.
As to motion no. M-73907, it should be noted that claimant previously made an
application for a reduction of his filing fee. Such application was denied in a
July 18, 2007 Order of Presiding Judge Richard E. Sise.
With regard to poor person status, there are no applicable provisions in the
Court of Claims Act, and thus the Civil Practice Law and Rules govern. See
Court of Claims Act §9, subdivision 9; Wilson v State of New York,
101 Misc 2d 924, 925, 422 NYS2d 347, 349 (Ct Cl 1979). Poor person status is
authorized under CPLR 1101, which addresses, among other things, filing fees.
Aside from the filing fee, there are no other fees in the Court of Claims and in
fact, section 27 of the Court of Claims Act prohibits certain costs, fees and
disbursements. Nevertheless, payment of a particular item of expense as the
need arises may be available at the proper time upon a showing of sufficient
cause. Mapp v State of New York, 69 AD2d 911, 415 NYS2d 278 (3d Dept
1979); Wilson, supra. Because no such showing has been made by
claimant at this time, his motion for poor person status must be denied.
Finally, as to claimant’s request for the assignment of counsel, such is
generally not available for civil cases. See Matter of Smiley, 36 NY2d
433, 369 NYS2d 87 (1975).
In view of the foregoing, having reviewed the
, IT IS ORDERED that motion no.
M-73891 be granted to the extent that the State’s fourth and fifth
affirmative defenses be deemed stricken and such motion shall otherwise be
denied. IT IS FURTHER ORDERED that motion no. M-73907 be denied.