Opinion
# 2012-049-026 Claim No. 114494 Motion No. M-81178
05-30-2012
O'DIAH v. THE STATE OF NEW YORK
Synopsis
Claimant's application seeking "rehearing in banc" of the Court's prior rulings, or alternatively, leave to appeal in forma pauperis from those decisions, denied. Case information
UID: 2012-049-026 Claimant(s): AROR ARK O'DIAH Claimant short name: O'DIAH Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 114494 Motion number(s): M-81178 Cross-motion number(s): Judge: David A. Weinstein Claimant's attorney: Aror Ark O'Diah, Pro Se Eric T. Schneiderman, NYS Attorney General Defendant's attorney: By: John M. Hunter, Assistant Attorney General Third-party defendant's attorney: Signature date: May 30, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
By Decision and Order filed October 17, 2011, this Court dismissed the above-captioned claim for lack of proper service, finding that "the Attorney General has adduced sufficient proof to show that it has not been served, and claimant has failed to meet his burden of showing that he has served his claim in accordance with the requirements of the Court of Claims Act" (O'Diah v State of New York, UID No. 2011-049-007, Weinstein, J. [Ct Cl Sept. 13, 2011]). O'Diah moved to "vacate, set aside, [and] declare null and void" the Court's prior order (Motion No. M-80581), on the ground that his "common law wife" Yonette Grant served his claim in the present action by mail and "in person" on the Attorney General. The Court denied that motion, on the ground that O'Diah had failed to "set forth why the evidence submitted on the motion to renew was not included in the filings made on the prior motion" (O'Diah v State of New York, UID No. 2011-049-020, Weinstein, J. [Ct Cl Dec. 22, 2011]).
O'Diah filed the present motion on March 2, 2012, seeking "rehearing in en banc" of the Court's prior rulings on this claim, or in the alternative, leave to appeal in forma pauperis from those decisions. He alleges "VAST judicial corruptions via VAST EXTRAJUDICIAL CONSPIRACIES" (Not. of Mot.), among other things, and asserts that he did not mention Ms. Grant's role in serving his claim in his submission prior to the Court's initial opinion because of "periodic recurring [m]emory loss" (Aff. in Supp. ¶¶ 39-41).
The State has submitted an affirmation in response to this motion, in which it takes no position thereon "as it pertains to proceeding with an appeal."
The Court of Claims Act makes no provision for en banc reconsideration of its decisions, nor does this Court have any authority to direct such process be undertaken by any appellate court. Claimant's motion for such relief is therefore denied. To the extent this application may be construed as another motion for renewal or reargument, it is denied as well, as claimant has failed to meet the standard for such relief (see CPLR 2221 and 5015).
As to claimant's motion to proceed in forma pauperis, he fails to meet the statutory requirements for such relief.Specifically, the motion does not (1) set forth the amount and sources of claimant's income and assets or demonstrate that claimant is unable to pay the costs, fees and expenses necessary to prosecute this action (CPLR 1101[a]); (2) show that the notice of motion has been served on the county attorney in the county in which the action is triable (CPLR 1101 [c]); or (3) set forth any facts demonstrating the merit of the appeal (CPLR 1101[a]).
In so ruling, I presume that this is a proper forum for seeking such relief. In Jenks v Murphy, 21 AD2d 346 (4th Dept 1964), the Fourth Department held that a motion to proceed in forma pauperis on appeal should be heard first by the trial court, and remanded the matter for such consideration. The remand requirement in Jenks was effectively overruled by L 1987, ch 312, which amended CPLR 1101(a) to require that where such motion was made in the Appellate Division in the first instance, the appellate court must rule on the motion, and "shall not remand [it] to the trial court . . ." As to whether a trial court has the jurisdiction to hear a motion for in forma pauperis status to appeal from one of its orders, CPLR 1101(a) provides in pertinent part (emphasis added): "Upon motion by any person, the court in which an action is triable , or to which an appeal has been or will be taken, may grant permission to proceed as a poor person." This language, which has not changed materially since Jenks, would appear to permit a trial court to decide this question, where a party has filed its motion in that court.
Accordingly, O'Diah's application is denied (see Pettus v State of New York, UID No. 2009-015-191, Collins, J. [Ct Cl July 23, 2009] [denying motion for leave to proceed in forma pauperis on appeal for failing to meet the criteria listed above]).
SO ORDERED.
May 30, 2012
Albany, New York
David A. Weinstein
Judge of the Court of Claims
Papers Considered:
1. Claimant's Notice of Motion.
2. Defendant's Affirmation in Opposition.