Harrell v. State

17 Misc. 2d 950, 188 N.Y.S.2d 683, 1959 N.Y. Misc. LEXIS 3264

Opinion

Sidney Squire, J.

The defendant moves, pursuant to subdivision 2 of rule 107 of the Rules of Civil Practice to dismiss the claim because the claimant “ has not legal capacity to sue ”. Said claimant is incarcerated in Sing Sing Prison serving a sentence of 5 to 10 years.

The movant relies upon section 510 of the Penal Law, bearing the heading ‘1 Forfeiture of office and suspension of civil rights ’ ’, which suspends, during the term of claimant’s sentence, his civil right to institute or continue this negligence action “ with respect to matters other than those arising out of his arrest or detention * * * ”.

Claimant opposes the motion by urging that said section 510 is unconstitutional in that it violates section 1 of article I of the Constitution of our State and the Fourteenth Amendment of the Constitution of the United States of America.

We rule that said section is not unconstitutional. The motion to dismiss the claim is granted. The claim is dismissed without prejudice to renewal when the proscription in section 510 is no longer applicable.

Short-form order signed.