New York State Court of Claims

New York State Court of Claims

GAGNE v. STATE OF NEW YORK, #2000-006-953, Claim No. 103202, Motion No. M-62635


Poor person - 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):

Claimant's attorney:
Defendant's attorney:
By: Paul Volcy, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
November 28, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


This is claimant's motion for an order of this court granting him permission to proceed as a poor person pursuant to CPLR §§ 1101 and 1102. In deciding this motion the court has read and reviewed the following papers:
  1. Claimant's petition dated September 28, 2000 and filed October 10, 2000.
  1. Claimant's affidavit sworn to September 28, 2000 in support of the petition.
  1. Claim verified September 28, 2000 and filed October 10, 2000.
  1. Order of Honorable Susan Phillips Read, Presiding Judge of the Court of Claims, dated and filed October 27, 2000.

This claim arose while claimant was an inmate at Wende Correctional Facility. The claim asserts causes of action against the defendant for negligence and unjust confinement. According to claimant the negligence claim arose on November 22, 1999, and continued into August, 2000. Claimant alleges that on November 22, 1999 a correctional facility physician issued a "no work" medical restriction for him, because of a back injury. Claimant states that despite this medical restriction, he was ordered and required to carry 50 lb laundry bags up and down stairs as part of his porter duties. Claimant alleges the defendant was negligent by requiring him to perform this task in the face of the medical restriction. As a result, claimant maintains he suffered permanent injuries to his back. Claimant also alleges he was unjustly confined for 15 days based upon an improper disciplinary proceeding being brought against him.

By this motion, claimant states he is unable to pay the costs, fees and expenses necessary to pursue his claim. The issue of the costs and fees associated with filing a claim in the Court of Claims has already been resolved by the order of Honorable Susan Phillips Read, Presiding Judge of the Court of Claims, dated and filed October 27, 2000. In that order, claimant's filing fee was set at $35.00 with no initial payment of the reduced fee required.

The court has reviewed claimant's petition and affidavit to proceed as a poor person, and finds them to be without merit. The only remaining costs and expenses to claimant associated with filing, serving and pursuing a claim consist of postage and, perhaps, photocopying expenses. In his petition and affidavit, claimant alleges that he has neither income or any property of value. However, the court is aware that the defendant provides five free first-class stamps to inmates weekly and will advance an inmate up to $20 for legal mail postage, if the inmate has insufficient funds (7 NYCRR 720.8[b][c]; 721.4[a]; 721.5[a]). Based upon these regulations, an inmate should have adequate means to serve his/her notice of intention to file claim and/or serve and file his/her claim and any other papers related to the claim in compliance with the Court of Claims Act. In the event an inmate is unable to afford the cost of photocopying, it would not be unreasonable for an inmate to transcribe by hand multiple copies of his/her notice of intention to file claim and/or claim and other related papers for the purpose of filing and serving same.

Claimant does not specifically request assignment of counsel. In any event, this action is not so complex that the court in exercising its discretion would be justified in appointing counsel. Matter of Smiley, 36 NY2d 433; Stephens v State of New York, 93 Misc 2d 273.

Accordingly it is,

ORDERED, that the motion of the claimant to proceed as a poor person is hereby DENIED.

November 28, 2000
Buffalo, New York

Judge of the Court of Claims