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,
dated June 2 and filed June 14, 2000; Affidavit in Support of Josephine
Drakeford, sworn to June 2 and filed June 14, 2000, with annexed Exhibit A; and
the claim, dated February 1 and filed March 20, 2000, with annexed Exhibits
By claim dated February 1 and filed March 20, 2000, with annexed Exhibits A-QQ
("claim"), claimant Josephine Drakeford ("claimant"), pro se
, alleged 25
causes of action asserting a parole officer's unlawful entrance into her
residence in September 1999.
The claim was
unaccompanied by the statutory filing fee of $50.00; therefore, by Order filed
April 5, 2000 the Court notified claimant that the claim would be closed without
further judicial action unless the statutory filing fee was paid within 120
days. Claimant now seeks leave to proceed as a poor person pursuant to CPLR
1101, requesting that "all costs and fees be waived" and such other relief as
may be just (Affidavit in Support of Josephine Drakeford, sworn to June 2 and
filed June 14, 2000, with annexed Exhibit A ["Drakeford Aff."], p 2).
First, a motion to proceed as a poor person must be served upon the parties and
notice must be given to the county attorney where the action is triable or to
the corporation counsel if the action is triable in New York City (see,
CPLR 1101 [c]). Absent notice to this public official the motion is
procedurally deficient, warranting dismissal (see, Harris v State of
100 Misc 2d 1015). Claimant's papers do not demonstrate that the requisite
notice was given.
In any event, upon review of the papers submitted and after due deliberation,
the Court declines to grant the relief sought because of its view that claimant
possesses sufficient resources to pay the statutory filing fee of $50.00.
Additionally, Court of Claims Act § 11-a (2) directs the Court to award a
prevailing claimant the actual amount of the statutory filing fee paid as a
taxable disbursement; Court of Claims Act § 27 prohibits the Court, except
in certain instances not relevant here, from awarding costs, fees, or
disbursements to any party.
Based upon the foregoing, the Court denies claimant's motion to proceed as a
poor person as procedurally deficient and, in any event, unwarranted. During
the pendency of this motion, the claim was dismissed for failure to pay the
statutory filing fee.
The Court now
(1) restores the claim since claimant, while not paying the fee as directed,
made this timely application for waiver, and
(2) directs claimant to pay the statutory filing fee of $50.00 within 120 days
of the date of this Decision and Order.
If claimant fails to pay the fee within 120 days, the Clerk of the Court is
directed to close the file without further judicial action.
After the claim was filed, defendant State of New York moved to dismiss pursuant
to CPLR 3211, and the Court dismissed all but the third cause of action
, Drakeford v State of New York,
Ct Cl, unreported decision
filed June 30, 2000, Read, P. J., Claim No. 102148, Motion No. M-61578).