New York State Court of Claims

New York State Court of Claims

WRIGHT v. THE STATE OF NEW YORK, #2001-015-128, Claim No. 103398, Motion No. M-62887


Synopsis


Inmate claimant's application to proceed as poor person denied for failure to notify county attorney and application for assigned attorney denied on basis of Matter of Smiley, 26 NY2d 433.

Case Information

UID:
2001-015-128
Claimant(s):
ANTHONY WRIGHT
Claimant short name:
WRIGHT
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103398
Motion number(s):
M-62887
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Anthony Wright, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney GeneralNo Appearance
Third-party defendant's attorney:

Signature date:
March 2, 2001
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The application of the claimant for an order pursuant to CPLR 1101 permitting him to proceed as a poor person is denied. By order dated December 5, 2000 Presiding Judge Susan Phillips Read granted that portion of the application which sought reduction of the filing fee required by Court of Claims Act § 11-a(1). This claim sounds in unlawful detention, false imprisonment, making false statements, perjury, failure to repair, scheme to defraud, lack of due process, loss of liberty and loss of property.

The application for permission to proceed as a poor person must be denied because claimant's motion papers fail to demonstrate that the motion was served upon the Oneida County Attorney. Failure to serve a county attorney as required by CPLR 1101(c) is a basis for denying a motion for permission to proceed as a poor person (Bowman v State of New York, 229 AD2d 1024; Harris v State of New York, 100 Misc 2d 1015, 1017). Service of the motion papers upon the Attorney General's Office in Albany, New York as evidenced by claimant's affidavit of service sworn to the 20th day of August, 2000 does not constitute service upon the Oneida County Attorney and does not satisfy the notice requirement of CPLR § 1101 (c).

Although claimant stated in his claim that he was "appearing pro se until further notice of the courts that an assigned counsel will take over the case on it's [sic] merits" the instant motion does not seek assignment of counsel pursuant to CPLR 1102 (a). While requests in civil matters for the assignment of private counsel without compensation are generally denied except in cases involving grievous forfeiture or loss of a fundamental right (see, Matter of Smiley, 26 NY2d 433; Wills v City of Troy, 258 AD2d 849, lv to app dismissed 93 NY2d 1000) the instant motion fails to request such relief and consequently that issue has not been presented for the Court's determination.

March 2, 2001
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of Motion "sworn to" August 20, 2000;
  2. Affidavit in support of petition to proceed as a poor person sworn to August 20, 2000
  3. Claim filed November 15, 2000.