New York State Court of Claims

New York State Court of Claims

FLYTHE v. THE STATE OF NEW YORK, #2009-016-006, Claim No. 107899, Motion No. M-75579


Synopsis


Motion for permission to proceed as a poor person and for the appointment of counsel was denied.

Case Information

UID:
2009-016-006
Claimant(s):
JOSEPH FLYTHE
Claimant short name:
FLYTHE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107899
Motion number(s):
M-75579
Cross-motion number(s):

Judge:
Alan C. Marin
Claimant’s attorney:
Joseph Flythe, Pro Se
Defendant’s attorney:
Andrew M. Cuomo, Attorney GeneralBy: James E. Shoemaker, Esq., AAG
Third-party defendant’s attorney:

Signature date:
February 5, 2009
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant Joseph Flythe moves for permission to proceed as a poor person and for the appointment of counsel. In his underlying claim, Mr. Flythe alleges that during a facility search at Sullivan Correctional Facility on February 13, 2003, he was assaulted by correction officers in his cell. 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. In the instant case, claimant previously made an application for a reduction of his filing fee, which was granted in a July 2, 2003 Order of Judge Richard E. Sise.

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.

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).

Accordingly, having reviewed the submissions[1], IT IS ORDERED that motion no. M-75579 be denied.



February 5, 2009
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




  1. [1]The following were reviewed: claimant’s “Motion for Appointment of Counsel” with affidavit in support, memorandum of law in support and undesignated exhibits; and defendant’s affirmation in opposition.