New York State Court of Claims

New York State Court of Claims

DELONY v. THE STATE OF NEW YORK, #2002-015-267, Claim No. 105806, Motion No. M-65017


Synopsis


Poor person application denied for lack of merit affidavit, failure to serve application on appropriate county attorney.

Case Information

UID:
2002-015-267
Claimant(s):
GEROLD DELONY
Claimant short name:
DELONY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105806
Motion number(s):
M-65017
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Gerold Delony, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Joel Marmelstein, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
June 26, 2002
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant's application for poor person relief pursuant to CPLR 1101 is denied. The claim filed March 27, 2002 seeks to recover money damages for personal injuries sustained while exiting a State transport vehicle at Mohawk Correctional Facility on February 1, 2002.

Claimant's application must be denied since it is not supported by an affidavit from which the merits of his claim might be ascertained (CPLR 1101 (a); Matter of Teeter v Reed, 57 AD2d 735). Claimant submitted a preprinted form entitled "motion to proceed in forma pauperis and supporting affirmation" apparently usable in federal court. There is no counterpart in New York Practice to the federal statute[1] which permits an inmate to offer an affirmation rather than an affidavit. Moreover, claimant has not identified himself as a member of one of the professions authorized to submit an affirmation in lieu of an affidavit pursuant to CPLR 2106. His application is, therefore, legally insufficient.

Additionally claimant has offered no proof establishing that his application was served upon the Oneida County Attorney as required by statute (CPLR 1101 (c)). Failure to serve a county attorney is, in itself, a basis for denial of the relief requested (Sebastiano v State of New York, 92 AD2d 966; Harris v State of New York, 100 Misc 2d 1015).

Claimant's application is accordingly denied.


June 26, 2002
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:

  1. Motion to proceed in forma pauperis and supporting affirmation dated March 22, 2002 with exhibit;
  2. Affirmation of Joel L. Marmelstein, dated April 24, 2002;

[1]See, 28 USC § 1746.