New York State Court of Claims

New York State Court of Claims
GONZALEZ v. THE STATE OF NEW YORK, # 2018-041-072, Claim No. 131274, Motion No. M-92707

Synopsis

Claimant's motion for an order granting poor person status, appointment of an attorney to represent claimant without compensation and for a Spanish language interpreter is denied.

Case information

UID: 2018-041-072
Claimant(s): IRWING GONZALEZ
Claimant short name: GONZALEZ
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 131274
Motion number(s): M-92707
Cross-motion number(s):
Judge: FRANK P. MILANO
Claimant's attorney: IRWING GONZALEZ
Pro Se
Defendant's attorney: NONE
Third-party defendant's attorney:
Signature date: November 13, 2018
City: Albany
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Claimant moves for an order granting him poor person status, appointment of an attorney to represent claimant without compensation and for a Spanish language interpreter. Claimant made a prior similar motion (M-92270) which was denied by the Court's Decision and Order, filed June 26, 2018, because claimant had failed to properly serve the motion.

Defendant has not appeared in opposition to claimant's application.

CPLR 1102 defines the "Privileges of a poor person" as follows:

"(a) Attorney. The court in its order permitting a person to proceed as a poor person may assign an attorney.

(b) Stenographic transcript. Where a party has been permitted by order to appeal as a poor person, the court clerk, within two days after the filing of said order with him, shall so notify the court stenographer, who, within twenty days of such notification shall make and certify two typewritten transcripts of the stenographic minutes of said trial or hearing, and shall deliver one of said transcripts to the poor person or his attorney, and file the other with the court clerk together with an affidavit of the fact and date of such delivery and filing. The expense of such transcripts shall be a county charge or, in the counties within the city of New York, a city charge, as the case may be, payable to the stenographer out of the court fund upon the certificate of the judge presiding at the trial or hearing. A poor person may be furnished with a stenographic transcript without fee by order of the court in proceedings other than appeal, the fee therefor to be paid by the county or, in the counties within the city of New York by the city, as the case may be, in the same manner as is paid for transcripts on appeal. Notwithstanding this or any other provision of law, fees paid for stenographic transcripts with respect to those proceedings specified in paragraph (a) of subdivision one of section thirty-five of the judiciary law shall be paid by the state in the manner prescribed by subdivision four of section thirty-five of the judiciary law.

(c) Appeals. On an appeal or motion for permission to appeal a poor person may submit typewritten briefs and appendices, furnishing one legible copy for each appellate justice.

(d) Costs and fees. A poor person shall not be liable for the payment of any costs or fees unless a recovery by judgment or by settlement is had in his favor in which event the court may direct him to pay out of the recovery all or part of the costs and fees, a reasonable sum for the services and expenses of his attorney and any sum expended by the county or city under subdivision (b)."

With respect to any obligation of the State of New York to pay claimant's litigation expenses, Gittens v State of New York (175 AD2d 530, 530-531 [3d Dept 1991]), instructs that:

"There is no general provision which requires the State to pay the litigation expenses in claims brought against it. Court of Claims Act 27 specifically provides that, except in instances not here present, "costs, witnesses' fees and disbursements shall not be taxed ... by the court to any party". Moreover, claimant is an inmate in a State correctional facility subject to a sentence of imprisonment. Civil Rights Law 79 (3) and 79-a (3) specifically provide that the State shall not be liable for any expense of, or related to, inmate litigation and shall not be required to perform any services related thereto, particularly where, as here, poor person status has not been granted."

Next, considering that the Court of Claims filing fee has been addressed and reduced in a prior order, filed May 16, 2018, and that the prosecution of this matter requires no additional payment of costs or fees, a grant of poor person status is unnecessary.

Further, while it is "clear that private litigants have no absolute right to assigned counsel, it also recognized that courts have discretion to provide uncompensated representation for indigent civil litigants in a proper case" (Wills v City of Troy, 258 AD2d 849 [3d Dept 1999]; see CPLR 1102 [a]). A proper case may include proceedings where "there is the danger of grievous forfeiture or the deprivation of a fundamental liberty right" (Morgenthau v Garcia, 148 Misc 2d 900, 903 [Sup Ct, NY County 1990]).

In a civil action "there is no absolute right to assigned counsel; whether in a particular case counsel shall be assigned lies instead in the discretion of the court" Matter of Smiley, 36 NY2d 433, 438 [1975]; Planck v County of Schenectady, 51 AD3d 1283 [3d Dept 2008]).

This is not a proper case for appointment of counsel since claimant seeks money damages for personal injuries allegedly caused by defendant's negligence. Such cases, if they appear meritorious, are typically handled by private attorneys, without cost to the litigant, on a contingent fee basis.

Claimant has not shown a "danger of grievous forfeiture or the deprivation of a fundamental liberty right" (148 Misc 2d at 903).

With respect to claimant's request for a Spanish language interpreter, the Court notes that claimant's two sets of motion papers demonstrate that claimant is capable of communicating in English, in writing at least. The request for a Spanish language interpreter is denied with leave to renew if necessary for the purpose of conducting depositions, or at trial of this action.

Claimant's application for poor person status, for appointment of an attorney to represent claimant without compensation and for a Spanish language interpreter is denied.

November 13, 2018

Albany, New York

FRANK P. MILANO

Judge of the Court of Claims

Papers Considered:

1. Claimant's Notice of Motion, filed August 13, 2018;

2. Affidavit of Irwing Gonzalez, sworn to August 3, 2018.