New York State Court of Claims

New York State Court of Claims

GREANY v. New York, #2000-012-505, Claim No. 087940, Motion No. M-61410


Synopsis



Case Information

UID:
2000-012-505
Claimant(s):
Joseph Greany
Claimant short name:
GREANY
Footnote (claimant name) :

Defendant(s):
The State of New York
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
087940
Motion number(s):
M-61410
Cross-motion number(s):

Judge:
JOHN P. LANE
Claimant's attorney:
Joseph Greany, pro se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
By: Wendy E. Morcio Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 13, 2000
City:
Buffalo
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read and considered on claimant's application for an order directing defendant to turn over certain documents and information and settling the trial transcript for purposes of his appeal:
Claimant's notice of motion dated March 1, 2000 1


Affidavit of Wendy E. Morcio in response to claimant's
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 overbroad.

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 allowance" (id.).

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).


April 13, 2000
Buffalo, New York

HON. JOHN P. LANE
Judge of the Court of Claims