New York State Court of Claims

New York State Court of Claims

BUNN v. THE STATE OF NEW YORK, #2000-001-048, Claim No. 95043, Motion No. M-61904


Synopsis



Case Information

UID:
2000-001-048
Claimant(s):
GILBERT BUNN
Claimant short name:
BUNN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
95043
Motion number(s):
M-61904
Cross-motion number(s):

Judge:
Susan Phillips Read
Claimant's attorney:
Gilbert Bunn, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Michele M. Walls, 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 for permission to proceed as a poor person pursuant to CPLR 1101; Application for Appointment of Counsel, undated and filed June 8, 2000; Affidavit in Support of Gilbert Bunn, pro se, sworn to May 26 and filed June 8, 2000; Affidavit in Opposition of Michele M. Walls , Esq., AAG, sworn to June 28 and filed June 30, 2000; the claim, sworn to August 14 and filed October 31, 1996; and Verified Amended Answer, dated October 9 and filed October 11, 1996. Claimant Gilbert Bunn ("claimant"), a prisoner now housed at Bare Hill Correctional Facility in Franklin County, brings this claim, pro se, seeking damages in excess of $25,000.00 for injuries allegedly sustained when he was assaulted in December 1995 by an unknown inmate while housed at Greene Correctional Facility in Greene County. Claimant requests leave to proceed as a poor person pursuant to CPLR 1101; defendant State of New York ("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, the 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