New York State Court of Claims

New York State Court of Claims

MITCHELL v. STATE OF NEW YORK, #2002-018-134, Claim No. 96998, Motion No. M-64026


Synopsis

Claimant's motion seeking free copy of transcript for th purpose of appeal is denied.

Case Information

UID:
2002-018-134
Claimant(s):
WAYMON MITCHELL
Claimant short name:
MITCHELL
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
96998
Motion number(s):
M-64026
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
WAYMON MITCHELLPro Se
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: HEATHER R. RUBINSTEIN, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
May 8, 2002
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
Claimant brings this motion seeking an order granting him a free copy of the transcript for the purpose of his appeal. The Court received a letter from defendant's counsel advising that the attorney general's office did not receive a copy of the motion papers. Claimant did attach an affidavit of service to his motion papers indicating a copy of the motion was served upon the attorney general by mail on July 19, 2001. The Court wrote to claimant on November 30, 2001 and requested that he serve another copy of the motion papers upon the assistant attorney general by December 14, 2001. Despite this request, there is no indication that service was made upon the assistant attorney general, and no responding papers were received from the attorney general's office. It also appears that claimant failed to serve the county attorney with a copy of his motion papers.

Even if service was properly made, the motion is denied. Claimant brought a motion for permission to proceed as a poor person before the Appellate Division, Third Department. The Appellate Division, as apparent from a copy of the decision and order dated January 30, 2001, granted claimant's motion but only to the extent that the filing fee required by CPLR 8022 was waived and permission was granted to perfect his appeal upon one copy of a record on appeal, one signed original and six typewritten copies of a brief and appendix, or seven copies of a record on appeal, one signed original and six typewritten copies of a brief. Claimant was not granted a free transcript. Since the Appellate Division granted claimant limited permission to appeal as a poor person, this Court cannot now grant the additional privilege of a free trial transcript. (
See, Moriarty v Butler Bin Co., 21 AD2d 865, aff'd 15 NY2d 901)
The motion must be DENIED.


May 8, 2002
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court considered the following documents in deciding this motion:

Notice of Motion.............................................................................................1

Affidavit of Waymon Mitchell in support.......................................................2

No response was filed by defendant.