New York State Court of Claims

New York State Court of Claims

HAWKS v. THE STATE OF NEW YORK, #2009-032-128, Claim No. 116345, Motion No. M-76252


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Brian Hawks, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo, NYS Attorney GeneralBy: Roberto Barbosa, Assistant Attorney General, Of Counsel
Third-party defendant’s attorney:

Signature date:
June 22, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves this Court for an order granting him permission to proceed as a poor person and for the assignment of counsel. Defendant opposes the motion for various reasons, including technical insufficiencies, and requests that it be denied in its entirety. Although the motion is technically defective, the Court will nonetheless address the substance of claimant’s request for relief.

CPLR § 1101 provides the mechanism for applying poor person status, and CPLR § 1102 allows the Court to assign an attorney to a poor person. The assignment of counsel in private matters is discretionary and is generally denied except in cases involving grievous forfeiture or loss of a fundamental right (see Matter of Smiley, 36 NY2d 433 [1975]; Wills v City of Troy, 258 AD2d 849 [3d Dept 1999], lv denied 93 NY2d 1000 [1999]; Planck v County of Schenectady, 51 AD3d 1283 [3d Dept 2008]). A review of the claim in this case reveals that claimant is alleging that he was assaulted on August 22, 2008, and that certain personal property items of his were lost or missing following a cell search conducted on October 22, 2008. The Court finds that the claim fails to rise to the level of grievous forfeiture or loss of a fundamental right, which would warrant the assignment of counsel (see Morgenthau v Garcia, 148 Misc 2d 900 [Sup Ct, New York County 1990]).

By Order of Hon. Richard E. Sise, Presiding Judge, filed on February 6, 2009, the Court granted claimant’s request for a reduction of the filing fee. Inasmuch as the filing fee has been addressed, the continued prosecution of this matter does not require the claimant to pay any additional costs or fees. The Court notes that claimant is not even required to outlay funds to mail legal papers. The correctional facility provides limited free postage on a weekly basis and if the claimant exceeds his weekly allotment and has no funds available in his prison account, the correctional facility will advance funds for postage on legal mail (7 NYCRR 721.3).

Based on the foregoing, claimant’s motion for an order granting him permission to proceed as a poor person and for the assignment of counsel is denied.

June 22, 2009
Albany, New York

Judge of the Court of Claims

Papers Considered:

1. Notice of Motion to Proceed As Poor Person Pursuant to CPLR 1101(f), and Affidavit in Support of Application Pursuant to CPLR 1101(f), sworn to by Claimant on January 20, 2009;

2. Affirmation of Roberto Barbosa, AAG, in Opposition to Claimant’s Motion for Appointment of Counsel and to Proceed as Poor Person, dated March 16, 2009.

Filed Papers: Claim, filed January 26, 2009; Order of Hon. Richard E. Sise, Presiding Judge, filed on February 6, 2009; Verified Answer, filed February 26, 2009.