Motion by pro se inmate claimant to proceed on appeal of non-final order to appellate division, as well as for poor person relief denied.
|Claimant short name:||KOEHL|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||THOMAS H. SCUCCIMARRA|
|Claimant's attorney:||EDWARD KOEHL, PRO SE|
|Defendant's attorney:||HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL|
|Third-party defendant's attorney:|
|Signature date:||March 25, 2010|
|See also (multicaptioned case)|
The following papers were read and considered on claimant's motion:
1,2 Notice of Motion (Appeal 1.19.10 Order); Affidavit in Support of Application Pursuant to CPLR 1101 (f) by Edward Koehl, Claimant
3-5 Filed Papers: Claim, Answer, Koehl v State of New York, Claim No. 116905, Motion No. M-77261, unreported (Scuccimarra, J., December 18, 2009)
The notice of motion submitted asks for an order permitting claimant to proceed on appeal to the Appellate Division, from a non-final order of this Court that was filed on January 19, 2010 [see Koehl v State of New York, Claim No. 116905, Motion No. M-77261, unreported (Scuccimarra, J., December 18, 2009)]. The notice of motion further indicates (incorrectly), that the notice of appeal and order are attached. What is attached, however, is a partially completed form affidavit for poor person relief under Civil Practice Law and Rules §1101(f).
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.]. If indeed what claimant is seeking is permission to proceed as a poor person in the Appellate Division such application is generally directed to the Court to which the appeal has been taken.(1)
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).
In terms of an application to this Court for poor person relief, in this claim, Edward Koehl alleges nine causes of action premised upon allegedly invalid disciplinary proceedings and property loss and/or confiscation occurring in February and March 2009. [See Claim Number 116905]. The claim was filed after 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, Claimant's filing fee was reduced to $45.00 pursuant to Court of Claims Act §11-a (1), and Civil Practice Law and Rules §1101(f). (June 16, 2009, Sise, P.J.).
In his Affidavit in Support of Application Pursuant to CPLR 1101(f) for reduction of his filing fee notarized January 29, 2010, Mr. Koehl indicates that he has no assets or income other than correctional facility wages, and owes filing fees for actions he apparently commenced in federal court.
Additionally, no proof of service was filed with the present application, thus there is no way of knowing whether the appropriate county attorney's office, or the defendant, have been served. Civil Practice Law and Rules §1101(c); Bowman v State of New York, 229 AD2d 1024 (4th Dept 1996).
Other than the filing fee, that has already been reduced, there are no fees in the Court of Claims. As the need arises, the Court may authorize payment of a particular item of expense upon a showing of sufficient cause [see Mapp v State of New York, 69 AD2d 911 (3d Dept 1979)] however, no such showing has been made here, particularly if what he is seeking is associated with appealing this Court's prior decision denying his premature application to compel discovery. [See Koehl v State of New York, Claim No. 116905, Motion No. M-77261, unreported (Scuccimarra, J., December 18, 2009)]. Even assuming that this Court would be an appropriate forum to consider allowing such costs, Civil Practice Law and Rules §1101(a) requires a showing of merit to the appeal. See Matter of McNear v State of New York, 38 AD3d 1093, 1094 (3d Dept 2007), lv denied 9 NY3d 801(2007). No merit has been shown.
Based on the foregoing, claimant's motion [M-77809] is in all respects denied.
March 25, 2010
White Plains, New York
THOMAS H. SCUCCIMARRA
Judge of the Court of Claims
1. See Civil Practice Law and Rules §1101(a).