New York State Court of Claims

New York State Court of Claims

CARDEW v. THE STATE OF NEW YORK, #2005-028-535, Claim No. 109968, Motion No. M-69332


Claimant's motion to pay Claimant's filing fee from his "Lag Pay/ Gate Money trust account" pursuant to CPLR 1101 (f) is denied.

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:
Defendant's attorney:
BY: Carol. A. Cocchiola, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 21, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on Claimant's motion to pay Claimant's filing fee from his "Lag Pay/Gate Money trust account" pursuant to CPLR 1101 (f):

1. Notice of Motion, Supporting Affidavit of Robert Cardew (Cardew Affidavit) with annexed Exhibits A-C, and Supporting Memorandum of Law of Robert Cardew (Cardew Memorandum), filed November 10, 2004

2. Affirmation in Opposition of Assistant Attorney General Carol A. Cocchiola
(Cocchiola Affirmation)and Affidavit of Jeanne Nickels (Nickels Affidavit) with annexed Exhibits 1 - 2, filed January 19, 2005

3. Reply Affidavit of Robert Cardew (Cardew Reply), filed January 26, 2005.

4. Filed Papers: Claim, filed October 18, 2004; Cardew v State of New York, Ct Cl, unreported order filed October 27, 2004, Sise, J., Claim No. 109968; Answer, filed November 22, 2004; Amended Answer, filed November 24, 2004.

The underlying Claim, which alleges a denial of accommodations at Southport Correctional Facility for Claimant's hearing impairment and discrimination because Claimant was allegedly forced to follow religious dietary practices at said facility, was filed on October 18, 2004 and assigned Claim No. 109968. In an Order filed October 27, 2004, Claimant's application pursuant to CPLR 1101(f) for a reduction of the required filing fee was granted and the Clerk of the Court was directed to notify the appropriate official at the facility where the inmate is housed that the full $40.00 fee constitutes an outstanding obligation to be collected in the same manner that mandatory surcharges are collected pursuant to Penal Law § 60.35 (5).

Claimant submits the instant motion requesting that the New York State Department of Correctional Services (DOCS) be ordered to collect the $40.00 fee from Claimant's "Lag Pay/Gate Money trust account" instead of Claimant's "inmate fund account." Claimant is also seeking to have the current policy of collecting fees from an inmate's "inmate fund account" declared unconstitutional. Claimant argues that the money in an inmate's "Lag Pay/Gate Money trust account" contains an inmate's personal money and should be encumbered in the event that the inmate's "inmate fund account" is insufficient to pay the requisite filing fees (Cardew Affidavit). Claimant further alleges that DOCS intentionally withheld information from the Court regarding the balance of Claimant's "Lag Pay/Gate Money trust account" in an attempt to preclude the Court from obtaining the filing fee from this account and instead directed the fee to be collected out of Claimant's "inmate fund account" (Cardew Memorandum). Defendant opposes the instant motion.

Pursuant to CPLR 1101 (f), after the Court determines that an inmate has sufficient means to pay a reduced filing fee, the court issues an order notifying the appropriate official at the facility where the inmate is housed to collect the fee in the same manner that mandatory surcharges are collected pursuant to Penal Law § 60.35 (5)[1]. The facility then establishes an encumbrance on the inmate's trust fund account for the collection and disbursement of fees to the court (Nickels Affidavit ¶ 3; Exhibit 1[2]). Although the CPLR refers to an "inmate's trust fund account," there is no separate account that is known as "Lag Pay/Gate Money trust account" which can be accessed to pay court filing fees (Cocchiola Affirmation ¶ 5; Nickels Affidavit ¶ 7; Exhibit 1). Inmates in New York correctional facilities have only one prison account referred to as an "inmate's trust fund account." This account includes an inmate's "lag pay" which is defined as income earned by an inmate that is credited to the account and available for use upon the inmate's release (Cocchiola Affirmation, Exhibit 1; Correction Law § § 116, 187). Furthermore, Correction Law § 125 provides that inmate's are required to have at least $40.00 available upon release. This "gate money" is held in trust by an encumbrance established when an inmate is within one year of their earliest release date and added to the inmate's trust fund account upon release from the facility (Nickels Affidavit ¶ 5, 6; Exhibit 1). It is well established that the Commissioner of Correctional Services is vested with broad administrative and discretionary authority over inmates' access to wages during imprisonment, and is free to hold such earnings in trust until an inmate's release. (Cowart v Coombe, 247 AD2d 729, lv denied

92 NY2d 803). Claimant's contention that his "Lag Pay/Gate Money trust account" should be used to pay the filing fee is misplaced because this money will not be credited to Claimant's inmate fund account or available for use until Claimant's release. Accordingly, because Claimant has only one inmate trust fund account, Claimant's motion is without merit.

Claimant raises a number of challenges to the constitution of the at issue statute. A court of original jurisdiction, such as the Court of Claims, should not declare a statute unconstitutional unless violations are plain and patent on the face of the statute (Matter of 1175 Evergreen Avenue, Bronx County, 158 Misc 158, 284 NYS 16, affd sub nom Matter of Mortgage Comm. of the State of New York, 270 NY 436) and a statute should be upheld as constitutional if it is possible to do so without disregarding the plain command or necessary implication of the fundamental law (Matter of Prime, 249 App Div 28; Bowen v City of Schenectady, 136 Misc 307, affd 231 App Div 779; see also Matter of Clara C. v William L., 96 NY2d 244, 250 [court "bound by principles of judicial restraint not to decide constitutional questions ‘unless their disposition is necessary to the appeal' "]). In applying these principles, this Court would necessarily resolve the question of whether the current policy of collecting fees from an inmate's "inmate fund account" passes constitutional muster. However, the Court of Claims does not have jurisdiction over challenges to the constitutionality of statutes, even if such determination is necessary to resolve a claim for money damages against the State (Matter of Markham v Comstock, 272 AD2d 971, lv dismissed 95 NY2d 886, cert denied 531 US 1079; Shields v Katz, 143 AD2d 743; Zimmerman v State of New York, 116 Misc 2d 521). Moreover, CPLR 1101(f) has been consistently upheld as constitutional (see Gomez v Evangelista, 290 AD2d 351; Berrian v Selsky, 306 AD2d 771; see also Payne v Commonwealth Dept. of Corr., 813 A2d 918 [collecting both federal and state court decisions]). For the foregoing reasons, Claimant's motion is denied in its entirety. Claimant's inmate account has been encumbered by DOCS and the $40.00 filing fee due herein has been deducted from Claimant's account in accordance with DOCS regulations[3].

June 21, 2005
Albany, New York

Judge of the Court of Claims

[1] Pursuant to CPLR 1101 (f) the Court has two options of either reducing the filing fee or directing the filing fee to be paid; unlike CPLR 1101 (d), where the Court may waive the filing fee in its entirety.
[2]Exhibit 1 is DOCS Directive Number 2788 containing the Department of Correctional Services policy on inmate accounts which was written in accordance with the requirements of the Prison Litigation Reform Act.
[3] As of March 2005, DOCS has collected and disbursed the entire $40.00 due to the Court and the filing fee is deemed paid in full.