New York State Court of Claims

New York State Court of Claims

TOLBERT v. THE STATE OF NEW YORK, #2005-030-511, Claim No. 105584, Motion No. M-69651


Synopsis



Case Information

UID:
2005-030-511
Claimant(s):
DEMERIS TOLBERT
Claimant short name:
TOLBERT
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105584
Motion number(s):
M-69651
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
DEMERIS TOLBERT, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
February 14, 2005
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1 to 5 were read and considered on Claimant's motion, brought pursuant to Civil Practice Law and Rules §1101, requesting that he be allowed to proceed as a poor person:
1,2 Notice of Motion; Untitled, unsigned and apparently incomplete document
3,4,5 Filed Papers: Claim [contains Affidavit in Support of Application pursuant to CPLR
1101 F by Demeris Tolbert, Claimant, dated January 30, 2002]; Answer; Amended Answer

After carefully considering the papers submitted and the applicable law Claimant's motion is denied for the following reasons:

Demeris Tolbert, the Claimant herein, alleges in Claim Number 105584 that he was assaulted and battered by a correction officer while he was an inmate at Green Haven Correctional Facility (hereafter Green Haven) on June 10, 2001. The matter is scheduled for trial on February 25, 2005.

The claim was filed after the enactment of Court of Claims Act §11-a requiring a filing fee of $50.00. [See Court of Claims Act § 11-a(1), effective December 7, 1999]. By Order of this Court, the Court concluded that Claimant was possessed of sufficient resources to pay the statutory fee, and it was not reduced. (February 21, 2002, Read, P. J.).

No provisions in the Court of Claims Act concern the prosecution of actions under poor person status or the appointment of counsel at public expense. Accordingly, Article 11 of the Civil Practice Law and Rules controls consideration of such relief. Court of Claims Act §9(9); Wilson v State of New York, 101 Misc 2d 924 (Ct Cl 1979). Civil Practice Law and Rules §1101(a) allows a court to grant poor person status to a claimant upon motion supported by " . . . an affidavit setting forth the amount and sources of his . . . income and listing his . . . property with its value; that he . . . is unable to pay the costs, fees and expenses necessary to prosecute . . . the action . . . " The statute also requires that ". . . the county attorney in the county in which the action is triable . . . " be given notice of the application. Civil Practice Law and Rules § 1101(c).

In his previous application for fee reduction - filed with his Claim - Claimant had indicated that he had no income beyond prison wages, and no income provided by family, owned no property, had no savings, and had no other resources.

No proof of service has been filed with the present application showing that the appropriate county attorney's office has been served. Civil Practice Law and Rules § 1101(c); Bowman v State of New York, 229 AD2d 1024 (4th Dept 1996).

The only fee in the Court of Claims is the filing fee, which has already been paid. Additionally, as the need arises, the Court may authorize payment of a particular item of expense upon a showing of sufficient cause.

After carefully reviewing the Claim and the papers submitted in support of this motion - incomplete as they are - it is denied initially on procedural grounds because Claimant did not serve the appropriate County Attorney's Office with a copy of this application. More substantively, the Court finds Claimant has not demonstrated that permission to proceed as a poor person is warranted, or that ". . . waiving service fees and cost, including, transportation for witnesses to appear before this court . . ." [Notice of Motion, ¶ 1], is needed.

Accordingly, Motion No. M-69651 is denied in its entirety.


February 14, 2005
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims