Plaintiff commenced the instant action in the N.Y.S. Supreme Court seeking recovery in the amount of $650.00, representing money plaintiff paid defendant for legal services, and $100,000.00, representing damages for emotional distress. Defendant answered denying plaintiff's allegations and moved to dismiss plaintiff's causes of action. The Supreme Court (Hon. Cathryn M. Doyle) granted defendant's motion in part, dismissing plaintiff's cause of action for emotional distress. Defendant then returned the $650.00 plaintiff had paid him for legal services. Plaintiff continues this action seeking accrued interest on the $650.00; an amount previously determined to be $361.24 by order of Justice Michael C. Lynch dated December 7, 2010, who thereafter transferred the action to this [*2]court by order dated March 2, 2011.

All motion practice and discovery appears to have been completed and the matter is ready for trial. However, inasmuch as plaintiff is incarcerated in a N.Y.S. Correctional Facility, and the trial of this action must take place in the Albany City Court, the trial cannot proceed unless the Court issues a subpoena for plaintiff's appearance; relief for which plaintiff now moves under Civil Rights Law §79.

As required by Civil Rights Law §79, plaintiff served his motion upon the Commissioner of Correctional Services, who has opposed plaintiff's request. Defendant has not responded to plaintiff's motion. Valerie Phillips, Inmate Records Coordinator, has informed the Court that the costs associated with transporting plaintiff from the Southport Correctional Facility in Pine City, NY (where plaintiff is currently incarcerated) to the Albany City Court would range from a minimum of $3,000.00 (if only two Correction Officers were required) to $6,000.00 (if four Correction Officers were required).

The Court notes that as a general rule, "[a] sentence of imprisonment in a state correctional institution for any term less than for life ... shall not be deemed to suspend the right or capacity of any person so sentenced to commence and prosecute an action ... in any court within this state ..." (Civil Rights Law §79[2]). However, Civil Rights Law §79(3)(b) states:

[w]here the inmate is permitted ... to proceed with the action ... as a poor person [as is the case here] the expense of transporting the inmate ... shall be a state charge; provided, however, that ... [if] a recovery by judgment or by settlement is had in his favor, the court may direct him to pay out of the recovery all or part of any sum expended by the state.

Here, the amount of any possible recovery by plaintiff has been limited and determined by order of the Supreme Court to be $361.24; an amount far exceeded by the minimum amount ($3,000.00) it would cost the state to transport plaintiff to Albany. Moreover, any monies awarded to plaintiff in this action would simply be used to offset these transportation costs incurred by the state.

This Court will not sanction such a result which, in this Court's view, would constitute an undue additional burden on the taxpayers of this State, in such dire economic times; especially where there will be no prejudice to plaintiff who can pursue his claim once released from prison. Accordingly, plaintiff's motion for a subpoena, for his production before this Court by the Department of Correctional Services, is denied.

So ordered.

Dated at Albany, New York

July 21, 2011

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Gary F. Stiglmeier

Albany City Court Judge