New York State Court of Claims

New York State Court of Claims

GREEN v. THE STATE OF NEW YORK , #2005-030-533, Claim No. 105542, Motion No. M-70056


Synopsis



Case Information

UID:
2005-030-533
Claimant(s):
ROBERT ANTHONY GREEN, SR.
Claimant short name:
GREEN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105542
Motion number(s):
M-70056
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
ROBERT ANTHONY GREEN, SR., PRO SE
Defendant's attorney:
\HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
June 2, 2005
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers, numbered 1 to 4, were read on Claimant's motion for an Order
permitting him to obtain a copy of his trial transcript at public expense:
  1. Notice of Motion, Affidavit in Support by Robert Anthony Green, Sr., Claimant and attached exhibits
2-4 Filed Papers: Claim, Answer, Green v State of New York, Claim No. 105542, Decision (Scuccimarra, J., April 20, 2004)
After carefully considering the papers submitted and the applicable law Claimant's motion is denied for the following reasons:
Claim Number 105542 was dismissed after trial by Decision dated April 7, 2004, filed in the Office of the Chief Clerk of the Court of Claims on April 20, 2004. By letter to Claimant dated June 9, 2004, the Clerk acknowledged receipt of Claimant's Notice of Appeal of the trial Decision, and also gave instruction concerning proceeding as a poor person in the Appellate Division. [Affidavit in Support, Exhibit B]. Apparently Claimant made a motion in the Appellate Division to proceed as a poor person, including asking for a copy of the transcript of the trial without charge, waiver of the filing fee, and assignment of counsel. [ibid. Exhibit C]. The motion for such relief was denied by the Appellate Division, in a Decision and Order on Motion decided July 22, 2004. [id.].
The present motion is asking for the same relief already requested in the Appellate Division.
No provisions in the Court of Claims Act concern the prosecution of actions under poor person status. 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 motion is brought in ". . . the court in which an action is triable, or to which an appeal has been or will be taken." [id.]. The statute also requires that ". . . the county attorney in the county in which the action is triable . . . " be given notice of the application, in addition to parties to the action if an action has already been commenced. Civil Practice Law and Rules §1101(c).
After carefully reviewing the Claim and the papers submitted in support of this motion, it is denied initially on procedural grounds because Claimant did not serve the appropriate county attorney's office with a copy of this application, nor was the Office of the Attorney General served. Civil Practice Law and Rules §1101(c). More importantly, the Appellate Division, Second Department has already reviewed and determined Claimant's entitlement to the relief requested. If Claimant disagreed with the Second Department's denial of his application, his remedy lies there, not here in the trial court.
Accordingly, Motion No. M-70056 is denied in its entirety.

June 2, 2005
White Plains, New York

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