New York State Court of Claims

New York State Court of Claims

DELONY v. THE STATE OF NEW YORK, #2002-015-296, Claim No. 105806, Motion No. M-65578


Claimant's second application for poor person status denied for failure to allege facts to permit merit determination and for failure to notify appropriate county attorney of application as required by CPLR § 1101 (c).

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

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:
October 10, 2002
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant's second motion pursuant to CPLR 1101 (f) for a reduction in his filing fee and for other poor person relief is denied. The claim filed March 27, 2002 seeks to recover money damages for personal injuries sustained while claimant was exiting a State transport vehicle at Mohawk Correctional Facility on February 1, 2002.

Claimant's prior application for poor person status and a reduction in the filing fee imposed by Court of Claims Act § 11-a was denied by decision and order dated June 26, 2002 (filed July 3, 2002). That motion was denied on the grounds that claimant failed to support the motion by (1) an affidavit containing factual allegations from which the merit of his claim might be ascertained and (2) proof of service of his poor person application upon the Oneida County Attorney as required by CPLR 1101 (c).

The instant application is denied because it suffers from several of the infirmities noted with regard to claimant's first application. Although claimant has now submitted an affidavit sworn to before a notary public, the affidavit fails to set forth any factual material addressed to the alleged merits of the claim as required by the statute. The affidavit instead is addressed to a reduction in the statutory filing fee. Court records reveal that claimant was previously granted a filing fee reduction by order of Presiding Judge Susan Phillips Read dated April 9, 2002 and the fee reduction request is therefore moot. Moreover, the instant application contains no proof of service upon the Oneida County Attorney, a fatal flaw brought to claimant's attention in the Court's prior decision and order. The affidavit of service submitted herein indicates claimant served a copy of the instant application upon the Albany County Attorney rather than the Oneida County Attorney. Such service cannot be found to satisfy the mandate of CPLR 1101 (c) and this failure, as previously noted, is a basis for denial of the claimant's poor person application (see, Sebastiano v State of New York, 92 AD2d 966; Harris v State of New York, 100 Misc 2d 1015).

Finally, the motion is defective in that it is not accompanied by a notice of motion as required by CPLR 2214 (a).

The application is, accordingly, denied.

October 10, 2002
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Affidavit of Gerold Delony sworn to July 11, 2002;
  2. Affirmation of Joel Marmelstein dated August 14, 2002;

Submitted but not considered:

  1. Affidavit of Darius Shahinfar sworn to July 26, 2002