New York State Court of Claims

New York State Court of Claims

BLACKWELL and VOGEL v. THE STATE OF NEW YORK, #2004-032-113, Claim No. 101994, Motion No. M-68926


Synopsis


A claimant who was granted poor person status (CPLR 1101) in 2000, when he was a prison inmate, would have to make a new application for that status when seeking one of the benefits listed in CPLR 1102 four years later and after he was released from prison. In this case, however, the benefit sought by claimant – provision of a transcript without fee – is not available to him because he is not at present taking an appeal.


Case Information

UID:
2004-032-113
Claimant(s):
JAMES BLACKWELL and MARJORIE S. VOGEL
Claimant short name:
BLACKWELL and VOGEL
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101994
Motion number(s):
M-68926
Cross-motion number(s):

Judge:
JUDITH A. HARD
Claimant's attorney:
James Blackwell and Marjorie S. Vogel, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Dennis M. Acton, Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
November 23, 2004
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

This claim is based on allegations that claimant James Blackwell was provided with negligent medical care while incarcerated in Bare Hill Correctional Facility.[1] In March 2000, former Presiding Judge Susan Phillips Read ruled on claimant's application for a reduction in the Court of Claims filing fee, denying such application on a finding that claimant possessed sufficient resources to pay the fee.

On April 23, 2002, this claim was called to trial at Great Meadow Correctional Facility before Judge Thomas J. McNamara. According to claimant, at that proceeding he was given permission to amend this claim to add additional causes of action. Since permission to amend the claim was granted, one must conclude that the case was not tried on that date. Claimant has now moved to obtain a transcript of that April 2002 proceeding "without paying the costs, fees, and expenses pursuant to CPLR 1101 and 1102."

In order to determine whether an individual is entitled to the relief provided by CPLR 1101 and 1102, a court must consider the following information, which is to be provided by the person seeking such relief:
The moving party shall file an affidavit setting forth the amount and sources of his or her income and listing his or her property with its value; that he or she is unable to pay the costs, fees and expenses necessary to prosecute or defend the action or to maintain or respond to the appeal; the nature of the action; sufficient facts so that the merit of the contentions can be ascertained; and whether any other person is beneficially interested in any recovery sought and, if so, whether every such person is unable to pay such costs, fees and expenses.
(CPLR 1101[a]).

At this time, however, there is no reason for claimant to make such an application, for the benefit that he seeks is not one of those enumerated in CPLR 1102. In addition to assignment of counsel, relief from the payment of costs and fees, and permission to submit typewritten appellate briefs and appendices, the statute states that persons entitled to proceed as poor persons may obtain the following:
Stenographic transcript. Where a party has been permitted by order to appeal as a poor person, the court clerk...shall so notify the court stenographer, who...shall make and certify two typewritten transcripts of the stenographic minutes of said trial or hearing, and shall deliver one of said transcripts to the poor person or his attorney....
(CPLR 1102[b] [emphasis supplied].) In short, the ability of an indigent litigant to obtain a transcript without cost is limited to those situations in which he or she is appealing a ruling or decision and has been granted permission to appeal as a poor person. Claimant does not state his reason for seeking a copy of the transcript of the April 23, 2002 proceeding, but inasmuch as the case was not tried and no order or interlocutory decision has been issued, it is evident that claimant does not seek the transcript for the purposes of pursuing an appeal.

Claimant's motion is denied.


November 23, 2004
Albany, New York

HON. JUDITH A. HARD
Judge of the Court of Claims


The following papers were read on claimant's motion for a stenographic transcript without fee:
1. Notice of Motion and Supporting Affidavit of James Blackwell, pro se, and Marjorie McClure, pro se;

2. Affidavit in Opposition of Dennis M. Acton, Esq., AAG ;

Filed papers: Claim; Answer



[1] The claim of Marjorie Vogel is derivative in nature and the term "claimant" shall refer to claimant James Blackwell, unless otherwise indicated or required by context.