New York State Court of Claims

New York State Court of Claims

DRAKEFORD v. THE STATE OF NEW YORK, #2000-001-051, Claim No. 102148, Motion No. M-61861


Synopsis


Claimant's motion seeking permission to proceed as a poor person is denied.

Case Information

UID:
2000-001-051
Claimant(s):
JOSEPHINE DRAKEFORD and QUINTIN XAVIER DRAKEFORD
Claimant short name:
DRAKEFORD
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102148
Motion number(s):
M-61861
Cross-motion number(s):

Judge:
Susan Phillips Read
Claimant's attorney:
Josephine Drakeford, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Grace A. Brannigan, Esq., Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 13, 2000
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

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 A-QQ.

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.[1] 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 New York,

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.[2] 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.


September 13, 2000
Albany, New York

HON. SUSAN PHILLIPS READ
Judge of the Court of Claims




[1]
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 (see, Drakeford v State of New York, Ct Cl, unreported decision filed June 30, 2000, Read, P. J., Claim No. 102148, Motion No. M-61578).
[2]
The Court closed this claim by Daily Report dated September 1, 2000. The Court notes that claimant has paid a $50.00 filing fee in an unrelated claim filed in this Court (Claim No. 102816).