notice of motion sworn to March 28, 2000 2
The claim in this case was dismissed after trial on December 15, 1997 and
claimant appealed from the judgment of dismissal. By this motion, he seeks an
order directing defendant to turn over certain documents and information and
settling the trial transcript for purposes of his appeal.
Claimant requests the following documents and information: (1) copies of
letters from the Assistant Attorney General to claimant "just prior to trial, as
to them calling Dr. Fish, as their witness," (2) the number of pages in his
ambulatory health records submitted to the court, (3) a copy of claimant's
letter to the Court after trial but prior to the decision and (4) "any other
documents that may be relevant to [the] appeal" (Mot to Settle, unnumb pgs).
Defendant submitted an Affidavit in Response expressing no objection to the
request for specific documents and information and indicating that the office of
the Attorney General would retrieve the file from "Archives" and provide
claimant with the requested documents. On April 3, 2000, Assistant Attorney
General Wendy Morcio forwarded the requested documents and information to
claimant. Accordingly, claimant's request for specific documents and the number
of pages in his ambulatory health records is moot. Claimant's request for "any
other documents that may be relevant to [the] appeal" is denied as
Turning to claimant's motion to settle the trial transcript, claimant asserts
that he served three copies of his Notice of Settlement of Transcript and
Appellants [sic] Proposed Amendments to Transcripts upon the defendant. Two of
the notices were mailed to the Buffalo office of the Attorney General at an
outdated address and were returned to claimant as undeliverable. According to
claimant, he mailed the third notice to the Albany office of the Attorney
General and received no response. In the notice, claimant proposed the
following amendment: "on page 10, Line 3, It states Attica, which is supposed to
be Wendes [sic]" (Not of Settlement, Mot to Settle, unnumb pgs).
Defendant does not address claimant's motion to settle the trial transcripts.
However, the Notice of Settlement of Transcript and Appellants [sic] Proposed
Amendments to Transcripts, appended to claimant's motion papers, demonstrates
that claimant did not serve a copy of the transcript upon the defendant as
required by CPLR 5525(c). As a result, defendant has had no opportunity to
review the transcript. Under the circumstances, claimant's motion to settle the
transcript must be denied. Claimant may make a new application for settlement
upon compliance with the procedures set forth in CPLR 5525(c).
Claimant's notice of settlement suggests that claimant is unable to afford the
cost of postage to forward the transcript to defendant. However, pursuant to
New York State Department of Correctional Services regulations, an inmate
receives the equivalent of five free first-class stamps weekly and may obtain an
advance for legal mail postage, if the inmate has insufficient funds (7 NYCRR
§§ 721.4, 721.5). Although an inmate's total unpaid advances
ordinarily may not exceed $20.00, the inmate may obtain an additional advance if
he can demonstrate "by court rules, a statute of limitations, or other
applicable legal deadline that the item for which he is requesting an advance
must be posted prior to the receipt of the inmate's next free postage
The Court is aware that in all likelihood, claimant will be unable to obtain a
settled copy of his transcript prior to April 14, 2000, the date by which his
appeal to the Appellate Division, Fourth Department, must be perfected.
Moreover, unless claimant makes a timely motion to that court for an extension
of time to perfect his appeal, the appeal will be dismissed on that date. In
that case, claimant's remedy would be to make a motion to the Appellate Division
to vacate the order of dismissal.
Finally, the court notes, upon review of the clerk's copy of the transcript and
the electronic recording of the trial, that the single amendment proposed by
claimant does not reflect a transcription error. The reference to Attica may
well have been a misstatement by claimant during his testimony. Nevertheless,
the statement was part of the record before the court in reaching its decision
and, therefore, does not provide a basis for amendment of the transcript.
Accordingly, claimant's motion is denied in all respects, without prejudice to
a new application for settlement of the trial transcript upon claimant's
compliance with the procedures set forth in CPLR 5525(c).