New York State Court of Claims

New York State Court of Claims

GRAVES v. THE STATE OF NEW YORK, #2002-013-006, Claim No. 99312, Motion Nos. M-64018, M-64420


Claimant's motion to proceed as a poor person is denied; his motion for summary judgment, made on extensive, voluminous and confusing documentation, is denied; and his motion for a default judgment is also denied.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
M-64018, M-64420
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
BY: WENDY E. MORCIO, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 6, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


On January 16, 2002, the following papers were read on Claimant's motion for summary judgment in his favor and for permission to proceed as a poor person ( Motion No. M-64018); and on Claimant's motion for default judgment (Motion No. M-64420):

1. Notice of Motion and Supporting Affidavit of Freddie Graves, pro se ("Graves Affidavit"), with Numerous Attachments (Motion No. M-64018)

2. Affidavit in Opposition of Wendy E. Morcio, Esq. ("Morcio Affidavit") (Motion No. M-64018)

3. Reply Affidavit of Freddie Graves, pro se ("Graves Reply Affidavit") (Motion No. M-64018)

4. Notice of Motion and Supporting Affidavit of Freddie Graves, pro se ("Graves Affidavit II"), with Numerous Attachments (Motion No. M-64420)

5. Affidavit in Opposition of Wendy E. Morcio, Esq. ("Morcio Affidavit II") (Motion No. M-64420)

6. Letter from Claimant to the Court dated January 11, 2002 (Motion Nos. M-64018 and M-64420)

7. Claimant's Supplemental Response sworn to January 24, 2002 (M-64018 and M-64420)

8. Filed Papers: Claim; Answer

This claim arose on November 23, 1996, when Claimant was allegedly attacked by another inmate at Wende Correctional Facility (Wende). The claim alleges that the State was negligent in permitting the attack and, in addition, that Claimant received inadequate medical treatment for the injuries he sustained.

That portion of Motion No. M-64018 in which Claimant seeks permission to proceed as a poor person is denied. At the time this claim was commenced, there was no fee required for commencing an action in the Court of Claims. Thus, the only relief available under CPLR 1102 that Claimant can be seeking at this juncture is the assignment of an attorney who would serve without compensation. The appointment of counsel in a case such as this, where there is no threat that Claimant is about to be deprived of a liberty or suffer a grievous forfeiture, is neither statutorily nor constitutionally required (Morgenthau v Garcia, 148 Misc 2d 900; Harris v State of New York, Ct Cl, Oct. 2, 1990 [Claim No. 80949, Motion No. M-42854], Benza, J.). Furthermore, this claim is not of sufficient complexity and does not involve such fundamental rights that the Court would be justified in exercising its discretion to appoint an attorney to appear without compensation (see, Matter of Smiley, 36 NY2d 433; Jacox v Jacox, 43 AD2d 716).

That portion of Motion No. M-64018 seeking summary judgment in Claimant's favor is also denied. Claimant's affidavit and the extensive, unorganized documentation submitted in support of the motion can only be characterized in a fashion similar to that used by the Third Department to describe a notice of intention which another claimant sought to have deemed a claim: "a confusing discourse of conclusory allegations with cross-references to voluminous documents from which it is impossible to decipher a viable cause of action" (Hodge v State of New York, 213 AD2d 766, 768). Here, it is impossible to decipher from the hundreds of pages of material that Claimant has submitted the evidence he purports to provide in order to establish each of the elements of his causes of action.

One of the purposes and functions of summary judgment is to take the place of a trial and to expedite civil cases (Andre v Pomeroy, 35 NY2d 361). Requiring defense counsel to produce evidence to rebut each of the conclusory allegations or scattered bits of evidence contained in Claimant's supporting papers, or requiring the Court to sift through this material to locate any legitimate support for the claim can hardly be said to be expeditious. In any event, determining the facts that gave rise to the claim will require an assessment of the credibility of various witnesses, which cannot be resolved on a motion for summary judgment (Cranker v Infantino, 229 AD2d 908), and a cursory review of the material discloses no expert proof of the standard of medical care which it is alleged was not met. Claimant will have every opportunity to present his evidence and arguments at trial of this claim.

Claimant's motion for default judgment appears to be based on his dissatisfaction with the response of Defendant to his motion for summary judgment. He states, "[T]he attorney opposition is silent, does not state what genuine ultimate fact... [and] does not dispute or controvert, nor [elaborate] to the genuine ultimate issues of fact stated in claimants moving papers" (Graves Notice of Motion M-64420, p. 1). For the reasons set forth above, this argument is unavailing and, in any event, providing a responsive pleading that does not satisfy the wishes of the opposing party, and to which he has objections, does not provide a legitimate ground for entering a default judgment (CPLR 3215).

Claimant's motions are denied.

March 6, 2002
Rochester, New York

Judge of the Court of Claims