Opinion
July 22, 1985
Appeal from the Court of Claims (McCabe, J.).
Order affirmed insofar as appealed from, without costs or disbursements. Our decision is without prejudice to any right of the claimant, if he be so advised, to address a proper request for poor person relief to the Court of Claims.
On this appeal, claimant argues that the failure to afford him poor person relief and to assign counsel to prosecute his claim constitutes a denial of due process and a meaningful opportunity to be heard upon his claim.
Although claimant served a copy of a petition for various types of poor person relief at the time he filed his claim, that petition, which did not conform with the requirements of CPLR article 11, was returned to him by the Clerk of the Court of Claims. The accompanying letter explained that it was being returned because there are no fees in the Court of Claims. Some months later, claimant made the instant application for various forms of discovery, including an examination before trial of the defendant. In granting the claimant's request for an examination before trial, the court properly directed that the costs of such examination be borne by the claimant ( see, Court of Claims Act § 18; Mapp v. State of New York, 69 A.D.2d 911). No request was made in that application for any form of poor person relief, nor was any ruling in that regard made by the court. Since no proper application was made in the court of first instance, the issues raised by the claimant herein may not properly be reviewed on this appeal. Accordingly, we do not pass upon the merits of claimant's argument and our decision is without prejudice to any right of the claimant, if he be so advised, to address a proper request for relief to the Court of Claims ( see, CPLR 1101, 1102; Mapp v. State of New York, supra; Wilson v. State of New York, 101 Misc.2d 924). Brown, J.P., Rubin, Lawrence and Kunzeman, JJ., concur.