New York State Court of Claims

New York State Court of Claims

BERNARD v. THE STATE OF NEW YORK, #2008-016-063, Claim No. 115413, Motion No. M-75368


Synopsis


Claimant was permitted to amend claim to add headers indicating separate causes of action. Motion for permission to proceed as a poor person was denied.

Case Information

UID:
2008-016-063
Claimant(s):
PAUL BERNARD
Claimant short name:
BERNARD
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115413
Motion number(s):
M-75368
Cross-motion number(s):

Judge:
Alan C. Marin
Claimant’s attorney:
Paul Bernard, Pro Se
Defendant’s attorney:
Andrew M. Cuomo, Attorney GeneralBy: Roberto Barbosa, Esq., AAG
Third-party defendant’s attorney:

Signature date:
November 18, 2008
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

In his underlying claim, Paul Bernard alleges that he was provided inadequate medical treatment in connection with a “botched” tonsillectomy performed on him at Albany Medical Center while he was incarcerated at Woodbourne Correctional Facility. Mr. Bernard moves for permission to amend his claim by adding the headers “AS A FIRST CAUSE OF ACTION” before ¶2 of his claim, and “AS A SECOND CAUSE OF ACTION” before ¶3 of his claim. Claimant also moves for an order directing “all fees, cost and expenditures associated with the prosecution of this motion be defrayed as Claimant has been allowed to prosecute this as a poor person under the terms of a reduced fee.” See p. 1 of claimant’s notice of motion.

Bernard’s request to amend his claim was apparently made in response to defendant’s assertion in its answer that he “failed to separately state and number each cause of action listed in paragraphs 2 and 3 of the claim . . . pursuant to C.P.L.R. § 3014.” See ¶3 of defendant’s answer. The proposed amendment is not jurisdictional in nature, and defendant has identified no prejudice that it would suffer should the court grant the requested relief.
* * *
There are no provisions in the Court of Claims Act concerning the prosecution of actions under poor person status, and thus the Civil Practice Law and Rules govern. See Court of Claims Act §9, subdivision 9; Wilson v State of New York, 101 Misc 2d 924, 925, 422 NYS2d 347, 349 (Ct Cl 1979). Poor person status is authorized under CPLR 1101, which addresses, among other things, filing fees. In this case, claimant has already made an application pursuant to CPLR 1101(f) for a reduction in the filing fee required by Court of Claims Act §11-a(1); in a June 30, 2008 Order of the Hon. Thomas J. McNamara, his filing fee was reduced to $35.00.

Aside from the filing fee, there are no other fees in the Court of Claims and in fact, §27 of the Court of Claims Act prohibits certain costs, fees and disbursements. Nevertheless, payment of a particular item of expense as the need arises may be available at the proper time upon a showing of sufficient cause. Mapp v State of New York, 69 AD2d 911, 415 NYS2d 278 (3d Dept 1979); Wilson, supra. Because no such showing has been made by claimant at this time, his motion for poor person status must be denied.[1]

Accordingly, having reviewed the submissions[2], IT IS ORDERED that motion no. M-75368 shall be granted to the extent that the claim shall be deemed amended to insert the headers “AS A FIRST CAUSE OF ACTION” before ¶2, and “AS A SECOND CAUSE OF ACTION” before ¶3, and such motion shall otherwise be denied.


November 18, 2008
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




  1. [1]Claimant seems to be under the impression that he must serve motion papers on defendant by certified mail, return receipt requested, and asks that if regular mail “is deemed insufficient,” that the Clerk of the Court or the Sullivan County Clerk be directed to serve this motion on defendant. There is no such requirement that motion papers be served by certified mail, return receipt requested - - regular mail suffices.
It should also be noted that in order for poor person status to be granted, CPLR §1101(c) requires that a notice of motion seeking such relief must be served on all parties as well as on the county attorney in the county in which the action is triable. Claimant’s affidavit of service indicates that this motion was served only on the defendant; it was not served on the county attorney.
  1. [2]The following were reviewed: claimant’s notice of motion with affidavit in support ; defendant’s affirmation in opposition; and claimant’s submission dated August 21, 2008 and received September 2, 2008.