New York State Court of Claims

New York State Court of Claims

BAYRON v. THE STATE OF NEW YORK, #2006-032-075, Claim No. 112389, Motion No. M-71902


Synopsis



Case Information

UID:
2006-032-075
Claimant(s):
VICTOR BAYRON
Claimant short name:
BAYRON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112389
Motion number(s):
M-71902
Cross-motion number(s):

Judge:
JUDITH A. HARD
Claimant’s attorney:
Victor Bayron, Pro Se
Defendant’s attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Paul F. Cagino, Assistant Attorney General, Of Counsel
Third-party defendant’s attorney:

Signature date:
September 1, 2006
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, pro se, alleges that due to the negligence of the State of New York, certain personal property of his was lost while he was being moved from Clinton Correctional Facility’s general inmate population to a special housing unit. He now seeks leave to proceed as a poor person pursuant to CPLR 1101 and appointment of counsel. Defendant State of New York replies that it was never served with a copy of the instant motion.

Initially, it is noted that besides the possible lack of service of claimant’s motion upon the Attorney General, a review of his moving papers also indicates that he did not indicate service upon the county attorney for Clinton 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]). Compliance with this provision is essential to the success of the motion (see, Harris v State of New York, 100 Misc 2d 1015) and its absence warrants denial of claimant’s procedurally deficient motion

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 statutorily or constitutionally required (see, Wills v City of Troy, 258 AD2d 849 [3d Dept 1999], lv dism 93 NY2d 1000 [1999]; Wilson v State of New York, 101 Misc 2d 924, 926). Claimant’s filing fee was reduced to $25.00 to be collected from his inmate account as an outstanding obligation and there are no other costs or fees associated with prosecuting his lost property claim in this court. Further, an examination of the claim reveals that the action is not so complex that the Court would be justified in exercising its discretion to appoint counsel for the prosecution of claimant’s action.

Accordingly, claimant's motion for an order granting him poor person status and for the assignment of counsel is denied.



September 1, 2006
Albany, New York

HON. JUDITH A. HARD
Judge of the Court of Claims


Papers Considered:


1. Petition of Victor Bayron, filed June 1, 2006 ;

2. Affidavit of Ellen Lyons, sworn to July 10, 2006, filed July 11, 2006;

3. Claim No. 112389, filed June 1, 2006.