Opinion
# 2020-053-514 Claim No. 134079 Motion No. M-95315
05-12-2020
LLOYD K. MORLANG v. STATE OF NEW YORK
LLOYD K. MORLANG, Pro Se HON. LETITIA JAMES New York State Attorney General BY: Darren Longo, Esq. Assistant Attorney General
Synopsis
Pro se inmate's motion seeking poor person status and the appointment of counsel is denied.
Case information
| UID: | 2020-053-514 |
| Claimant(s): | LLOYD K. MORLANG |
| Claimant short name: | MORLANG |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 134079 |
| Motion number(s): | M-95315 |
| Cross-motion number(s): | |
| Judge: | J. DAVID SAMPSON |
| Claimant's attorney: | LLOYD K. MORLANG, Pro Se |
| Defendant's attorney: | HON. LETITIA JAMES New York State Attorney General BY: Darren Longo, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | May 12, 2020 |
| City: | Buffalo |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant Lloyd K. Morlang, an inmate proceeding pro se, alleges in claim no. 134079 that he was denied adequate and proper medical care while incarcerated at Collins Correctional Facility (Collins). Claimant moves by motion no. M-95315 for poor person status and for the appointment of counsel. Defendant takes no position with respect to claimant's motion.
A copy of a motion to proceed as a poor person pursuant to CPLR §1101 must be served on the attorney for the county in which the matter is triable (CPLR §1101 [c]). The affidavit of service attached to claimant's motion fails to indicate service upon the appropriate county attorney. As a result, claimant's motion for poor person status is defective and must be denied on those grounds (Sebastiano v State of New York, 92 AD2d 966 [3d Dept 1983]).
In the event claimant had complied with CPLR §1101 (c) by serving the appropriate county attorney, his motion for poor person status would still have to be denied. By order filed January 17, 2020, Acting Presiding Judge Richard E. Sise reduced claimant's filing fee from $50.00 to $15.00 pursuant to CPLR §1101(f). Inasmuch as there are no other fees or costs associated with the prosecution of this claim, claimant's motion to proceed as a poor person would have to be denied.
Claimant's motion for assignment of counsel would similarly have to be denied. Although CPLR §1102 grants to the Court discretion to assign an attorney, the Court of Appeals has previously ruled that there is no constitutional or statutory requirement that indigents be assigned private counsel in civil litigation and such a request is generally denied except in cases involving loss of liberty or grievous forfeiture (Matter of Smiley, 36 NY2d 433 [1975]). Claimant has failed to establish that his claim is sufficiently complex or that it involves such fundamental rights that the Court would be justified in appointing counsel to serve without compensation (Id. at 437-438; Wills v City of Troy, 258 AD2d 849 [3d Dept 1999], lv dismissed 93 NY2d 1000 [1999]). In addition, attorneys' fees in such actions are generally paid on a contingency fee basis thereby permitting an indigent to obtain an attorney without the need for the assignment of counsel pursuant to CPLR §1102.
Claimant's request to proceed as a poor person and for the assignment of counsel is denied.
May 12, 2020
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims The following were read and considered by the Court: 1. Notice of motion and affidavit of Lloyd K. Morlang sworn to January 29, 2020, with annexed Exhibits; 2. Letter dated March 2, 2020, from Assistant Attorney General Darren Longo advising the Court that the defendant takes no position with respect to claimant's motion.