1101 F by Demeris Tolbert, Claimant, dated January 30, 2002]; Answer; Amended
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
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.