New York State Court of Claims

New York State Court of Claims

BURR v. THE STATE OF NEW YORK, #2000-005-572, Claim No. 97058, Motion No. M-62603


Claimant's motion for poor person relief and the issuance of subpoenas is 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):
Cross-motion number(s):

Donald J. Corbett, Jr.
Claimant's attorney:
David BurrPro Se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Edward F. McArdle, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
November 20, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


On November 15, 2000, the following papers, numbered 1 to 4, were read on motion by Claimant for poor person relief and the issuance of subpoenas:

1, 2 Notice of Motion, Affidavit, and Annexed Papers
  1. Affirmation in Opposition
  2. Filed Papers: Claim
Upon the foregoing, this motion is denied.

The trial of this matter was adjourned, inter alia, to allow the Claimant to prepare witness subpoenas for the Court to review and issue, and to make any motions related thereto, and, as Claimant indicated at trial, for poor person relief.

Among other things Claimant seeks poor person status pursuant to CPLR article 11 because he asserts that he cannot afford the wages, fees, miliage (sic) for the witnesses. Initially I note that relative to this claim, there are no costs necessary to prosecute a claim in the Court of Claims, and thus no privileges are available under CPLR article 11. The recent enactment of a filing fee requirement was not effective until December 1999, and thus has no bearing on this claim which was filed on September 29, 1997. Article 11 of the CPLR does not provide the type of privilege or relief Claimant seeks, to wit, the payment of witness fees and mileage, as required by the CPLR. Accordingly, the motion for poor person relief is denied.

With respect to the subpoenas, Claimant was directed to prepare the subpoenas for the Court to review and issue, and at the trial herein on September 27, 2000, on the record prior to the adjournment, I advised Claimant that the Court would ascertain the mileage and witness fees necessary to accompany each such subpoena. Claimant has done nothing more than provide a single blank subpoena, and a list of some 74 people, with addresses, whom he would like subpoenaed. Included in the list are the Governor, the Attorney General, Claimant's parents, six Assembly members, and many doctors and nurses.

Since Claimant is not an attorney, he cannot issue subpoenas on his own, and I would have issued some of the subpoenas (CPLR 2303). The signed subpoenas would have been forwarded under separate cover to the Claimant, with copies to the Defendant. Claimant would have had the responsibility of serving the subpoenas by certified mail, return receipt requested. CPLR 2303 says that subpoenas shall be served in the same manner as a summons, but in the Court of Claims, the functional equivalent of the summons and complaint, to wit, the claim, must be served personally or by certified mail, return receipt requested (Court of Claims Act §11[a]) in order to obtain personal jurisdiction over the State. Since it is inherently obvious that an inmate is limited in his ability to accomplish personal service, service of such subpoenas would have been accomplished by certified mail, return receipt requested.

Had Claimant properly provided individual subpoenas for me to sign, he would have been required, for each witness, to pay the statutory witness attendance fee of $15.00 and travel expenses for the round trip between the witness's address and Auburn Correctional Facility at $.23 per mile (CPLR 8001).

However, as noted above, Claimant failed to provide the blank subpoenas in proper form for my signature, and thus his request for the issuance of some 74 subpoenas, and the motion herein, is denied in its entirety.

The parties have already been advised under separate cover that the continuation of this trial is scheduled for November 29, 2000 at 8:30 a.m. at the Auburn Correctional Facility.

November 20, 2000
Rochester, New York

Judge of the Court of Claims