New York State Court of Claims

New York State Court of Claims
MCKINNEY v. THE STATE OF NEW YORK, # 2010-032-042, Claim No. 118704, Motion No. M-78701


Case information

UID: 2010-032-042
Claimant short name: MCKINNEY
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 118704
Motion number(s): M-78701
Cross-motion number(s):
Claimant's attorney: By: Darrell McKinney, Pro Se
Defendant's attorney: Hon. Andrew M. Cuomo, NYS Attorney General
By: Roberto Barbosa, Assistant Attorney General, Of Counsel
Third-party defendant's attorney:
Signature date: December 14, 2010
City: Albany
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 that the claim is not a complex matter and that claimant has failed to provide notice of his motion to the county attorney. For the reasons set forth below, the Court denies claimant's motion.

CPLR 1101 (c) requires that notice of an application for permission to proceed as a poor person and for the assignment of counsel must be given to the county attorney in the county in which the action is triable. Claimant's failure to provide such notice makes his application defective and his application must, therefore, be denied (see Sebastiano v State of New York, 92 AD2d 966 [3d Dept 1983]; Harris v State of New York, 100 Misc 2d 1015, 1016-1017 [Ct Cl 1979]; Pettus v State of New York, UID #2006-028-579, Claim No. 109717, Motion No. M-71735, Sise, P.J. [July 27, 2006]).

However, even if claimant had properly served the motion on all who are entitled to notice, he has not asserted facts that would warrant poor person status and the assignment of counsel.

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 seeking money damages for allegedly being denied access to a "Book of Shadows". It does not demonstrate that claimant is facing a loss of liberty or grievous forfeiture, 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 August 20, 2010, the Court granted claimant's request for a reduction of the filing. 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.

December 14, 2010

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 July 16, 2010.

2. Affirmation of Roberto Barbosa, AAG, in Opposition to Claimant's Motion for Appointment of Counsel and to Proceed as Poor Person, dated September 8, 2010.

Papers Filed: Claim, filed July 28, 2010; Order of Hon. Richard E. Sise, Presiding Judge, filed August 20, 2010; Verified Answer, filed September 10, 2010.