Legislation
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, 2025
* (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, 2025
(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 incarcerated individuals. 1. Notwithstanding any other
provision of law to the contrary, a federal, state or local incarcerated
individual 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 incarcerated
individual 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
incarcerated individual 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 incarcerated individual is confined a
certified copy of the incarcerated individual's trust fund account
statement (or institutional equivalent) for the six month period
preceding filing of the incarcerated individual's application. If the
incarcerated individual 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 incarcerated individual 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 incarcerated individual 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 incarcerated individual has
insufficient means to pay the full filing fee, the court may permit the
incarcerated individual 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 incarcerated
individual can reasonably afford or shall authorize no initial payment
of the fee if exceptional circumstances render the incarcerated
individual unable to pay any fee; provided however, that the difference
between the amount of the reduced filing fee and the amount paid by the
incarcerated individual in the initial partial payment shall be assessed
against the incarcerated individual as an outstanding obligation to be
collected either by the superintendent or the municipal official of the
facility at which the incarcerated individual 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 incarcerated individual is housed of the amount of
the reduced filing fee that was not directed to be paid by the
incarcerated individual. 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 incarcerated individual be prohibited from
proceeding for the reason that the incarcerated individual has no assets
and no means by which to pay the initial partial filing fee.
3. The institution at which an incarcerated individual 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 incarcerated individual as required by
this subdivision.
4. Whenever any federal, state or local incarcerated individual
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 incarcerated individual, 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
incarcerated individual, in violation of section six hundred-a of the
correction law and section 70.30 of the penal law.
* NB Expires September 1, 2025
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, 2025
* (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, 2025
(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 incarcerated individuals. 1. Notwithstanding any other
provision of law to the contrary, a federal, state or local incarcerated
individual 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 incarcerated
individual 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
incarcerated individual 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 incarcerated individual is confined a
certified copy of the incarcerated individual's trust fund account
statement (or institutional equivalent) for the six month period
preceding filing of the incarcerated individual's application. If the
incarcerated individual 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 incarcerated individual 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 incarcerated individual 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 incarcerated individual has
insufficient means to pay the full filing fee, the court may permit the
incarcerated individual 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 incarcerated
individual can reasonably afford or shall authorize no initial payment
of the fee if exceptional circumstances render the incarcerated
individual unable to pay any fee; provided however, that the difference
between the amount of the reduced filing fee and the amount paid by the
incarcerated individual in the initial partial payment shall be assessed
against the incarcerated individual as an outstanding obligation to be
collected either by the superintendent or the municipal official of the
facility at which the incarcerated individual 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 incarcerated individual is housed of the amount of
the reduced filing fee that was not directed to be paid by the
incarcerated individual. 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 incarcerated individual be prohibited from
proceeding for the reason that the incarcerated individual has no assets
and no means by which to pay the initial partial filing fee.
3. The institution at which an incarcerated individual 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 incarcerated individual as required by
this subdivision.
4. Whenever any federal, state or local incarcerated individual
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 incarcerated individual, 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
incarcerated individual, in violation of section six hundred-a of the
correction law and section 70.30 of the penal law.
* NB Expires September 1, 2025