New York State Court of Claims

New York State Court of Claims

BOYD v. THE STATE OF NEW YORK, #2008-030-504, Claim No. 114390, Motion No. M-74243


Synopsis


Pro se inmate’s application for poor person relief denied initially on procedural grounds because claimant did not serve the appropriate County Attorney’s office with copy of application. More substantively, claimant did not demonstrate that his is a proper case warranting the appointment of counsel at public expense. The claim is one for personal injury resulting from a trip on a loose piece of weather stripping on stairs that had been negligently maintained in a dangerous condition by Washington Correctional Facility, and does not involve fundamental rights.

Case Information

UID:
2008-030-504
Claimant(s):
GEORGE BOYD
Claimant short name:
BOYD
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114390
Motion number(s):
M-74243
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
GEORGE BOYD, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
February 11, 2008
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers were read and considered 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 Pursuant to CPLR §1101(f) by George Boyd, Claimant
2,3 Filed Papers: Claim, Answer

No Opposition filed

George Boyd, the Claimant herein, alleges in Claim Number 114390 that on or about May 8, 2007 he was injured when he tripped on a loose piece of weather stripping on stairs that had been negligently maintained in a dangerous condition by the Defendant’s agents at Washington Correctional Facility.

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 $35.00 pursuant to Court of Claims Act §11-a (1), and Civil Practice Law and Rules 1101(f). (November 13, 2007, 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 statute also requires that “. . . the county attorney in the county in which the action is triable . . . ” be given notice of the application. Civil Practice Law and Rules § 1101(c).

Claimant indicates that his only income is $9.00 weekly from prison wages, that he has no savings, property or other resources and that he is unable to pay the filing fee, costs, fees, and expenses necessary to prosecute the proposed action.

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).

Additionally, 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 or 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 Co 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-74243 is denied in its entirety.

February 11, 2008
White Plains, New York

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