Legislation

Search OpenLegislation Statutes
This entry was published on 2021-04-23
The selection dates indicate all change milestones for the entire volume, not just the location being viewed. Specifying a milestone date will retrieve the most recent version of the location before that date.
SECTION 1101
Motion for permission to proceed as a poor person; affidavit; certificate; notice; waiver of fee; when motion not required
Civil Practice Law & Rules (CVP) CHAPTER 8, ARTICLE 11
§ 1101. Motion for permission to proceed as a poor person; affidavit;
certificate; notice; waiver of fee; when motion not required. (a)
Motion; affidavit. Upon motion of 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. Where a motion for leave
to appeal as a poor person is brought to the court in which an appeal
has been or will be taken, such court shall hear such motion on the
merits and shall not remand such motion to the trial court for
consideration. The moving party shall file an affidavit setting forth
the amount and sources of his or her income and listing his or her
property with its value; that he or she is unable to pay the costs, fees
and expenses necessary to prosecute or defend the action or to maintain
or respond to the appeal; the nature of the action; sufficient facts so
that the merit of the contentions can be ascertained; and whether any
other person is beneficially interested in any recovery sought and, if
so, whether every such person is unable to pay such costs, fees and
expenses. An executor, administrator or other representative may move
for permission on behalf of a deceased, infant or incompetent poor
person.

(b) Certificate. The court may require the moving party to file with
the affidavit a certificate of an attorney stating that the attorney has
examined the action and believes there is merit to the moving party's
contentions.

(c) Notice. Except as provided in subdivisions (d) and (e) of this
section, if an action has already been commenced, notice of the motion
shall be served on all parties, and notice shall also be given to the
county attorney in the county in which the action is triable or the
corporation counsel if the action is triable in the city of New York.

* (d) Waiver of fee in certain cases. Except as otherwise provided in
subdivision (f) of this section, if applicable, a plaintiff may seek to
commence his or her action without payment of the fee required by filing
the form affidavit, attesting that such plaintiff is unable to pay the
costs, fees and expenses necessary to prosecute or defend the action,
which shall be available in the clerk's office along with the summons
and complaint or summons with notice or third-party summons and
complaint. The case will be given an index number, or, in courts other
than the supreme or county courts, any necessary filing number and the
application will be submitted to a judge of the court. If the court
approves the application, the plaintiff will by written order be given
notice that all fees and costs relating to the filing and service shall
be waived. If the court denies the application the plaintiff will by
written order be given notice that the case will be dismissed if the fee
is not paid within one hundred twenty days of the date of the order.

* NB Effective until September 1, 2023

* (d) Waiver of fee in certain cases. A plaintiff may seek to commence
his or her action without payment of the fee required by filing the form
affidavit, attesting that such plaintiff is unable to pay the costs,
fees and expenses necessary to prosecute or defend the action, which
shall be available in the clerk's office along with the summons and
complaint or summons with notice or third-party summons and complaint.
The case will be given an index number, or, in courts other than the
supreme or county courts, any necessary filing number and the
application will be submitted to a judge of the court. If the court
approves the application, the plaintiff will by written order be given
notice that all fees and costs relating to the filing and service shall
be waived. If the court denies the application the plaintiff will by
written order be given notice that the case will be dismissed if the fee
is not paid within one hundred twenty days of the date of the order.

* NB Effective September 1, 2023

(e) When motion not required. Where a party is represented in a civil
action by a legal aid society or a legal services or other nonprofit
organization, which has as its primary purpose the furnishing of legal
services to indigent persons, or by private counsel working on behalf of
or under the auspices of such society or organization, all fees and
costs relating to the filing and service shall be waived without the
necessity of a motion and the case shall be given an index number, or,
in a court other than the supreme or county court, an appropriate filing
number, provided that a determination has been made by such society,
organization or attorney that such party is unable to pay the costs,
fees and expenses necessary to prosecute or defend the action, and that
an attorney's certification that such determination has been made is
filed with the clerk of the court along with the summons and complaint
or summons with notice or third-party summons and complaint or otherwise
provided to the clerk of the court. Where an attorney certifies,
pursuant to section eleven hundred eighteen of the family court act, and
in accordance with procedures of the appropriate appellate division,
that a party or child who is the subject of an appeal has been
represented in the family court by assigned counsel or by a legal aid
society or a legal services or other nonprofit organization, which has
as its primary purpose the furnishing of legal services to indigent
persons, or by private counsel working on behalf of or under the
auspices of such society or organization, and, in the case of a counsel
assigned to an adult party, that the party continues to be indigent, the
party or child shall be presumed eligible for poor person relief
pursuant to this section.

* (f) Fees for inmates. 1. Notwithstanding any other provision of law
to the contrary, a federal, state or local inmate under sentence for
conviction of a crime may seek to commence his or her action or
proceeding by paying a reduced filing fee as provided in paragraph two
of this subdivision. Such inmate shall file the form affidavit referred
to in subdivision (d) of this section along with the summons and
complaint or summons with notice or third-party summons and complaint or
petition or notice of petition or order to show cause. As part of such
application, the inmate shall indicate the name and mailing address of
the facility at which he or she is confined along with the name and
mailing address of any other federal, state or local facility at which
he or she was confined during the preceding six month period. The case
will be given an index number if applicable, or, in courts other than
the supreme or county courts, any necessary filing number and the
application will be submitted to a judge of the court. Upon receipt of
the application, the court shall obtain from the appropriate official of
the facility at which the inmate is confined a certified copy of the
inmate's trust fund account statement (or institutional equivalent) for
the six month period preceding filing of the inmate's application. If
the inmate has been confined for less than six months at such facility,
the court shall obtain additional information as follows:

(i) in the case of a state inmate who has been transferred from
another state correctional facility, the court shall obtain a trust fund
account statement for the six month period from the central office of
the department of corrections and community supervision in Albany; or

(ii) in the case of a state inmate who is newly transferred from a
federal or local correctional facility, the court shall obtain any trust
fund account statement currently available from such facility. The court
may, in its discretion, seek further information from the prior or
current facility.

2. If the court determines that the inmate has insufficient means to
pay the full filing fee, the court may permit the inmate to pay a
reduced filing fee, the minimum of which shall not be less than fifteen
dollars and the maximum of which shall not be more than fifty dollars.
The court shall require an initial payment of such portion of the
reduced filing fee as the inmate can reasonably afford or shall
authorize no initial payment of the fee if exceptional circumstances
render the inmate unable to pay any fee; provided however, that the
difference between the amount of the reduced filing fee and the amount
paid by the inmate in the initial partial payment shall be assessed
against the inmate as an outstanding obligation to be collected either
by the superintendent or the municipal official of the facility at which
the inmate is confined, as the case may be, in the same manner that
mandatory surcharges are collected as provided for in subdivision five
of section 60.35 of the penal law. The court shall notify the
superintendent or the municipal official of the facility where the
inmate is housed of the amount of the reduced filing fee that was not
directed to be paid by the inmate. Thereafter, the superintendent or
the municipal official shall forward to the court any fee obligations
that have been collected, provided however, that:

(i) in no event shall the filing fee collected exceed the amount of
fees required for the commencement of an action or proceeding; and

(ii) in no event shall an inmate be prohibited from proceeding for the
reason that the inmate has no assets and no means by which to pay the
initial partial filing fee.

3. The institution at which an inmate is confined, or the central
office for the department of corrections and community supervision,
whichever is applicable, shall promptly provide the trust fund account
statement to the inmate as required by this subdivision.

4. Whenever any federal, state or local inmate obtains a judgment in
connection with any action or proceeding which exceeds the amount of the
filing fee, paid in accordance with the provisions of this subdivision
for commencing such action or proceeding, the court shall award to the
prevailing inmate, as a taxable disbursement, the actual amount of any
fee paid to commence the action or proceeding.

5. The provisions of this subdivision shall not apply to a proceeding
commenced pursuant to article seventy-eight of this chapter which
alleges a failure to correctly award or certify jail time credit due an
inmate, in violation of section six hundred-a of the correction law and
section 70.30 of the penal law.

* NB Expires September 1, 2023