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
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
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.