New York State Court of Claims

New York State Court of Claims

NAPOLITANO v. STATE OF NEW YORK, #2000-006-958, Claim No. 102998, Motion No. M-62703


Synopsis


Claimant's motion to precede as a poor person and assignment of counsel, pursuant to CPLR § 1101 and 1102 is denied.

Case Information

UID:
2000-006-958
Claimant(s):
NICHOLAS NAPOLITANO
Claimant short name:
NAPOLITANO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102998
Motion number(s):
M-62703
Cross-motion number(s):

Judge:
EDGAR C. NeMOYER
Claimant's attorney:
NICHOLAS NAPOLITANO, PRO SE
Defendant's attorney:
HONORABLE ELIOT SPITZER
ATTORNEY GENERAL OF THE STATE OF NEW YORK
By: James E. GElormini, Esq.Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
November 30, 2000
City:
Buffalo
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is claimant's motion for an order of this court granting him permission to proceed as a poor person and for the assignment of counsel pursuant to CPLR §§ 1101 and 1102. In deciding this motion the court has read and reviewed the following papers:

Claimant's combined motion and affidavit sworn to September 21, 2000 and filed September 25, 2000 in support of the motion.


Claim verified August 24, 2000 and filed August 28, 2000.


Order of Honorable Susan Phillips Read, Presiding Judge of the Court of Claims, dated and filed October 26, 2000.


This claim arose on May 17, 2000 after claimant had been transferred from Attica Correctional Facility to Riverview Correctional Facility. Claimant alleges that when he arrived at Riverview Correctional Facility and was called to obtain his personal property, several items were missing. It appears four bags of claimant's personal property were packed for transfer to Riverview Correctional Facility, but when claimant arrived there, he was given only three of those bags. Claimant alleges the defendant was negligent in maintaining his personal property.

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 26, 2000. In that order, claimant's filing fee was set at $25.00 with no initial payment of the reduced fee required.

By his motion to proceed as a poor person, the claimant seeks an order of this court waiving the payment of all filing fees and court costs. The court has reviewed claimant's combined motion and affidavit to proceed as a poor person, and finds them to be without merit. The claimant states that he is unable to pay the costs and fees associated with the prosecution of this action, but prosecution of this matter in this court does not require the claimant to pay any costs or fees. The only costs associated with serving a notice of intention to file claim and filing and serving a claim consist of postage and, perhaps, photocopying expenses. In his statement and petition, the 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 has not set forth any specific facts as to the attempts he has made to obtain counsel on his own behalf or any attempts he may have made to seek aid from the various legal services available to prisoners. Furthermore, it does not appear to the court that it would be justified in exercising its discretion in appointing counsel for the claimant. 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 and for the assignment of counsel is hereby DENIED.


November 30, 2000
Buffalo, New York

HON. EDGAR C. NEMOYER
Judge of the Court of Claims