New York State Court of Claims

New York State Court of Claims

LAGAS v. STATE OF NEW YORK, #2008-039-078, Claim No. 113951, Motion No. M-74436


Synopsis


Claimant’s application for poor person status and the assignment of counsel is denied. Claimant failed to provide the Court with information regarding the costs, fees and expenses attendant to bringing the claim or proof that the notice of the application was served on the county attorney as required by CPLR 1101 (c ). Additionally, claimant avers that he “currently receive[s] income exclusive from correctional facility wages.”

Case Information

UID:
2008-039-078
Claimant(s):
DAVID W. LAGAS
Claimant short name:
LAGAS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113951
Motion number(s):
M-74436
Cross-motion number(s):

Judge:
JAMES H. FERREIRA
Claimant’s attorney:
David W. Lagas, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Michael T. KrenrichAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 28, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant David W. Lagas, an inmate at Downstate Correctional Facility in Fishkill, New York, seeks poor person status and the assignment of counsel. Claimant alleges that on July 13, 2006, while in the custody of the Columbia County Correctional Facility, he was physically harmed and suffered emotional distress as a result of actions taken by a BCI State Police Investigator in forcibly obtaining a DNA sample from claimant.

The grant or denial of an application to proceed as a poor person “rests in the sound discretion of the court” (see Howell v Francesco, 190 Misc 2d 188, 189-190 [2001]). In addition, since the right to sue as an indigent person “is a purely statutory right enacted in derogation of the common law, the language must be strictly construed” (id. at 190). CPLR § 1101, which governs the process for obtaining poor person status, requires, inter alia, an affidavit setting forth the amount and sources of the moving party's income and assets and a statement that he or she is unable to pay the costs, fees, and expenses necessary to prosecute or defend the action. CPLR 1102 grants the Court discretion to assign an attorney in its order permitting a person to proceed as a poor person. Here, claimant fails to provide the information required by the statute in support of the instant application. No costs, fees and expenses attendant to bringing this action are set forth and claimant further avers that he “currently receive[s] income exclusive from correctional facility wages.”

In addition, the relief requested must be denied as claimant has proffered no information indicating that the notice of this application was served on the county attorney as required by CPLR 1101(c) (see Sebastiano v State of New York, 92 AD2d 966 [1983]; Harris v State of New York, 100 Misc 2d 1015 [1979]).
Finally, the Court of Appeals has held that there is no constitutional or statutory requirement that indigent persons be assigned private counsel in civil litigation (Matter of Smiley, 36 NY2d 433, 438 [1975]). 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 courts retain “a broad discretionary power to assign counsel without compensation in a proper case” (id. at 441; see also CPLR 1102), a “proper case” (id. at 441) for the discretionary appointment of counsel includes situations in which a “litigant is faced with a ‘grievous forfeiture or loss of a fundamental . . . right’” (Wills v City of Troy, 258 AD2d 849 [1999], lv dismissed 93 NY2d 1000 [1999] quoting Morgenthau v Garcia, 148 Misc 2d 900, 903 [1990]; see also Pettus v State of New York, UID # 2007-015-242, Claim No. 113867, Motion Nos. M-73704, M-73727, Collins, J., October 18, 2007). The Court does not find the allegations made herein so compelling as to warrant the assignment of counsel.

For the aforementioned reasons, claimant’s motion seeking poor person status and assignment of counsel is denied.


April 28, 2008
Albany, New York

HON. JAMES H. FERREIRA
Judge of the Court of Claims