New York State Court of Claims

New York State Court of Claims

DICKENS v. THE STATE OF NEW YORK, #2005-019-509, Claim No. 100119, Motion No. M-69601


Synopsis


Claimant's motion for poor person relief and free copy of trial transcript is denied.

Case Information

UID:
2005-019-509
Claimant(s):
DARRYL DICKENS
Claimant short name:
DICKENS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100119
Motion number(s):
M-69601
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
DARRYL DICKENS, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
February 8, 2005
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate appearing pro se, makes this post-trial motion for an order designating him as a poor person in order to obtain a free copy of his trial transcript for the purpose of preparing a post-trial memorandum. (CPLR 1102 [b]). The State of New York (hereinafter "State") opposes the motion. A trial of this claim was held at Elmira Correctional Facility on November 15, 2004. At the conclusion of trial, the court reserved decision and the parties requested and were granted additional time to submit post-trial memoranda. Claimant's post-trial memorandum was due on or before January 30, 2005, while the State's post-trial memorandum was due on or before February 28, 2005. Instead, on January 13, 2005, claimant filed this motion for poor person status in order to obtain a free copy of his trial transcript to assist him in preparing his post-trial memorandum, as well as an extension of time to submit the same.


The granting of poor person relief is discretionary with the court. (Smith v Smith, 2 NY2d 120, 123). One of the privileges of poor person status is the entitlement to a free stenographic transcript of the relevant trial generally requested in connection with an appeal. (CPLR 1102 [b]). However, CPLR 1102 (b) does authorize a court, in its discretion, to provide a free transcript "in proceedings other than appeal" if and when poor person is granted.[1] Here, claimant seeks poor person status and a free transcript not for an appeal nor even of a deposition, but rather for the sole purpose of preparing his post-trial memorandum. The court declines to grant claimant a free trial transcript for the purpose of submitting a post-trial memorandum. (Davis v State of New York, Ct Cl, June 18, 2001, Fitzpatrick, J., Claim No. 97735, Motion Nos. M-62900 & M-63100 [UID No. 2001-018-091]).[2]


Additionally, as a separate and distinct basis for denying claimant's motion, a motion to proceed as a poor person must be served upon the parties, as well as the county attorney where the action is triable. (CPLR 1101 [c]). Claimant's affidavit of service indicates that he only served this motion on the Office of the Attorney General and not the county attorney which is, in and of itself, a separate ground for denying this motion.


Due to the delay necessitated by this post-trial motion, the court will amend the dates for the parties' post-trial submissions. Claimant may submit his post-trial memorandum on or before March 2, 2005 and the State may submit its post-trial memorandum on or before March 31, 2005.


In view of the foregoing, it is ORDERED, that claimant's motion, Motion No. M-69601, is DENIED.



February 8, 2005
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims


The court has considered the following papers in connection with this motion:
  1. Notice of Motion No. M-69601, dated January 4, 2005, and filed January 13, 2005.
  2. Affidavit of Darryl Dickens, in support of motion, sworn to January 10, 2005, with attached exhibits.
  3. Affirmation of Joseph F. Romani, AAG, in opposition to motion, dated January 27, 2005, and filed January 31, 2005.

[1]The only case law the court found relative to transcripts for proceedings other than appeal are cases in which requests for free deposition transcripts were denied. (Lester v Lester, 69 Misc 2d 528, 529; Wilson v State of New York, 101 Misc 2d 924).

[2]Selected unreported decisions from the Court of Claims are available via the Internet at