New York State Court of Claims

New York State Court of Claims

CRUZ v. THE STATE OF NEW YORK, #2000-001-046, Claim No. 102220, Motion No. M-61897


Synopsis


Claimant's motion seeking permission to proceed as a poor person is denied.

Case Information

UID:
2000-001-046
Claimant(s):
EULESE CRUZ
Claimant short name:
CRUZ
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102220
Motion number(s):
M-61897
Cross-motion number(s):

Judge:
Susan Phillips Read
Claimant's attorney:
Eulese Cruz, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Michael C. Rizzo, Esq., Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 23, 2000
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read and considered on claimant's motion seeking permission to proceed as a poor person pursuant to CPLR 1101: Notice of Motion for Permission to Proceed as a Poor Person, dated March 30 and filed April 3, 2000; Affirmation in Opposition of Michael C. Rizzo, Esq., AAG, dated May 1 and filed May 3, 2000; the claim, undated and filed April 3, 2000; Verified Answer of Michael C. Rizzo, Esq., AAG, dated May 1 and filed May 3, 2000; and an Order of the Court, dated and filed August 18, 2000.

Claimant Eulese Cruz ("claimant"), pro se, alleges that he was wrongfully held in the Special Housing Unit at Greene Correctional Facility in Greene County for 28 days after a determination reversing his confinement (the claim, undated and filed April 3, 2000 ["claim"], ¶ 2), for which he seeks damages totaling $2,800 ($100 per day of the alleged wrongful confinement) (claim, ¶ 4). He now requests leave to proceed as a poor person pursuant to CPLR 1101.[*] Defendant opposes the motion.

First, claimant's papers do not indicate service upon the county attorney for Greene County. A motion to proceed as a poor person must be served upon the county attorney where the action is triable (see, CPLR 1101 [c]). Absent service upon the county attorney the motion is procedurally deficient, warranting denial (see, Harris v State of New York, 100 Misc 2d 1015).

In any event, the assignment of counsel in cases such as this, where there is no indication that claimant is facing a "loss of liberty or grievous forfeiture" (Matter of Smiley, 36 NY2d 433, 437), is neither constitutionally nor statutorily required (see, Wills v City of Troy, 258 AD2d 849, 849; Wilson v State of New York, 101 Misc 2d 924, 926). Further, this claim is not so complex that the Court would be justified in exercising its discretion to appoint counsel for the prosecution of claimant's action; therefore, the Court denies claimant's motion as procedurally deficient and, in any event, unwarranted.

August 23, 2000
Albany, New York

HON. SUSAN PHILLIPS READ
Judge of the Court of Claims




[*]
Claimant also unsuccessfully applied for a reduction of the filing fee pursuant to CPLR 1101 (f) (see, Cruz v State of New York, Ct Cl, Order filed April 28, 2000, Read, P. J.). By separate motion (M-62001) claimant moves to reargue the Court's denial of his application for a fee reduction.