The following papers were read and considered on claimant's motion for an order
holding CPLR 1101 (f) unconstitutional and for an order waiving the $45.00
dollar fee set by the Court by order filed March 20, 2001: Notice of Motion,
dated March 27 and filed April 2, 2001; Affidavit in Support of Reconsideration
of Poor Persons Relief Pursuant to CPLR 2221 and CPLR 1101 (f) of Michael L.
Eldridge, pro se, sworn to March 28 and filed April 2, 2001, with annexed
unmarked Exhibits; Memorandum of Law of Michael L. Eldridge, pro se,
dated March 27 and received April 2, 2001; Affirmation in Opposition of Jeane L.
Strickland Smith, Esq., AAG, dated April 9 and filed April 12, 2001, with
annexed Exhibit A [Appellate Brief of State of New York in Gomez v
Evangelista (185 Misc 2d 816)]; Affidavit in Response of Michael L.
Eldridge, pro se, sworn to April 11 and filed April 16, 2001; and the
claim, verified February 18 and filed March 2, 2001.
Claimant Michael L. Eldridge ("claimant"), pro se, filed this action on
March 2, 2001 alleging that defendant State of New York ("defendant" or "the
State") is liable in damages for an intentional assault allegedly committed by a
correction officer while claimant was housed at Green Haven Correctional
Facility (claim, verified February 18 and filed March 2, 2001). Claimant also
applied for a reduction of the statutory filing fee of $50.00, which the Court
set at $45.00 to be collected as an encumbrance against his inmate account
(see, CPLR 1101 [f]). Citing Gomez v Evangelista (185 Misc 2d
816), claimant now asks the Court to declare CPLR 1101 (f) unconstitutional and
to waive the filing fee.
Because claimant's motion appears to be based upon "new facts not offered on
the prior motion that would [potentially] change the prior determination or . .
. a [claimed] change in the law that would change the prior determination" (CPLR
2221 [e] ), the Court construes it as a motion to renew. Although claimant's
motion does not contain the required "reasonable justification for the failure
to present such facts on the prior motion" (CPLR 2221 [e] ), the Court
recognizes that the proffered Supreme Court decision in Gomez may not
have been readily available to him when he made his original application, and
that the application was made by way of a standardized form. Accordingly, the
Court grants claimant's motion to renew, but adheres to the original
determination for the reasons to follow.
In Gomez, Supreme Court opined that CPLR 1101 (f) is unconstitutional
"[i]nsofar as [it] mandates immediate or deferred payment without possibility of
discretionary waiver" for inmates of Federal, State or local facilities
(Gomez v Evangelista, supra, at 820). The prison account
statement for the petitioner in Gomez revealed a zero "spendable balance"
(id., at 818).
Here, the Court need not address CPLR 1101 (f)'s constitutionality or
Gomez's validity or authority because, upon review of claimant's inmate
account statement, she determined that he possessed sufficient resources to pay
a reduced fee of $45.00 pursuant to Court of Claims Act
§ 11-a (1) and CPLR 1101 (f). By setting a filing fee of $45.00 on the
original application, the Court necessarily determined that claimant did not
qualify for a reduction to $15.00, the statute's minimum fee (see, CPLR
1101 [f] ). Claimant has proffered no evidence to suggest that the Court
abused her discretion in this regard. Further, as of June 21, 2001 claimant has
a spendable balance of $79.28 and outstanding encumbrances of $38.80 in his
inmate account, and has received $852.70 in deposits over the last six months.
Accordingly, the Court grants claimant's motion to renew, and upon renewal,
denies his request for a waiver and adheres to the prior determination setting
the filing fee at $45.00, to be collected as an encumbrance against claimant's