Opinion
# 2019-015-122 Claim No. 132392 Motion No. M-93368
02-19-2019
MIZZIAH MURRAY, 18B1696 v. THE STATE OF NEW YORK
Mizziah Murray, Pro Se No Appearance
Synopsis
Claimant's motion for poor person status and the assignment of counsel was denied.
Case information
| UID: | 2019-015-122 |
| Claimant(s): | MIZZIAH MURRAY, 18B1696 |
| Claimant short name: | MURRAY |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 132392 |
| Motion number(s): | M-93368 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Mizziah Murray, Pro Se |
| Defendant's attorney: | No Appearance |
| Third-party defendant's attorney: | |
| Signature date: | February 19, 2019 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, proceeding pro se, seeks leave to proceed as a poor person and for the assignment of counsel.
Claimant, an inmate in the custody of the Department of Corrections and Community Supervision, seeks damages for injuries sustained when he was assaulted by another inmate at Great Meadow Correctional Facility on September 11, 2018.
Initially, the motion is procedurally defective as it was not served on the County Attorney in the county in which the action is triable as required by CPLR 1101 (c).
This procedural deficiency aside, the motion would still be denied because claimant has already received the benefit of a reduced filing fee and the claim does not involve the type of grievous forfeiture required to justify the assignment of counsel in a civil case. CPLR 1101 sets forth the procedure for applying for poor person status and CPLR 1102 grants the Court discretion to assign an attorney. In Matter of Smiley (36 NY2d 433 [1975]), the Court of Appeals held that while civil litigants have no absolute right to assigned counsel, "[t]he courts have a broad discretionary power to assign counsel without compensation in a proper case" (id. at 441; see also CPLR 1102). In so holding, the Court recognized that 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). A proper case for the exercise of the Court's discretionary authority to assign counsel involves cases where an individual is faced with a grievous forfeiture or loss of a fundamental right implicating his or her liberty interests (Matter of Giovanni S. [Jasmin A.], 89 AD3d 252 [2d Dept 2011]; Planck v County of Schenectady, 51 AD3d 1283 [2008]; Wills v City of Troy, 258 AD2d 849 [1999], lv dismissed 93 NY2d 1000 [1999]; Morgenthau v Garcia, 148 Misc 2d 900, 903 [1990]; Matter of Ellis v Gardner, 51 Misc 3d 1217 [A] 2016 NY Slip Op 50687 [U] [Sup Ct, Ulster County 2016]). None of these interests are implicated here.
Moreover, attorneys' fees in such actions are generally paid on a contingency fee basis thereby permitting indigents to obtain the services of an attorney without the need for the assignment of counsel under CPLR 1102.
With respect to claimant's request for permission to proceed as a poor person under CPLR 1101, other than the filing fee, which has already been reduced, no additional fees are required to litigate a claim in the Court of Claims. Notably, inmates without sufficient funds to pay for postage, may seek advance payment through the Department of Corrections and Community Supervision (7 NYCRR 721.3 [a] [3] [iv] -[vii]).
Accordingly, the motion is denied.
February 19, 2019
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims Papers Considered:
1. Notice of motion sworn to December 7, 2018;
2. Affidavit in support sworn to December 7, 2018.