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1101 - Motion for permission to proceed as a poor person; affidavit; certificate; notice; waiver of fee; when motion not required.

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§1101. Motion for permission to proceed as a poor person; affidavit;certificate; notice; waiveroffee;whenmotionnotrequired.(a)Motion;affidavit.Uponmotionofany person, the court in which anaction is triable, or to which an appeal has been or will be taken,maygrantpermissionto proceed as a poor person. Where a motion for leaveto appeal as a poor person is brought to the court inwhichanappealhasbeenorwillbetaken, such court shall hear such motion on themerits andshallnotremandsuchmotiontothetrialcourtforconsideration.Themovingparty shall file an affidavit setting forththe amount and sources of his or herincomeandlistinghisorherproperty with its value; that he or she is unable to pay the costs, feesandexpenses necessary to prosecute or defend the action or to maintainor respond to the appeal; the nature of the action; sufficient factssothatthemeritof the contentions can be ascertained; and whether anyother person is beneficially interested in any recovery soughtand,ifso,whethereverysuchpersonis unable to pay such costs, fees andexpenses. An executor, administrator or otherrepresentativemaymoveforpermissiononbehalfofadeceased, infant or incompetent poorperson.(b) Certificate. The court may require the moving party tofilewiththe affidavit a certificate of an attorney stating that the attorney hasexaminedtheactionand believes there is merit to the moving party'scontentions.(c) Notice. Except as provided in subdivisions (d)and(e)ofthissection,ifan action has already been commenced, notice of the motionshall be served on all parties, and notice shall also begiventothecountyattorneyinthecountyin which the action is triable or thecorporation counsel if the action is triable in the city of New York.* (d) Waiver of fee in certain cases. Except as otherwise providedinsubdivision(f) of this section, if applicable, a plaintiff may seek tocommence his or her action without payment of the fee required by filingthe form affidavit, attesting that such plaintiff is unable topaythecosts,feesandexpenses necessary to prosecute or defend the action,which shall be available in the clerk's office alongwiththesummonsandcomplaintorsummonswithnoticeorthird-partysummonsandcomplaint. The case will be given an index number, or, incourtsotherthanthesupreme or county courts, any necessary filing number and theapplication will be submitted to a judge ofthecourt.Ifthecourtapprovestheapplication, the plaintiff will by written order be givennotice that all fees and costs relating to the filing and serviceshallbewaived.Ifthecourt denies the application the plaintiff will bywritten order be given notice that the case will be dismissed if the feeis not paid within one hundred twenty days of the date of the order.* NB Effective until September 1, 2011* (d) Waiver of fee in certain cases. A plaintiff may seek to commencehis or her action without payment of the fee required by filing the formaffidavit, attesting that such plaintiff is unabletopaythecosts,feesandexpensesnecessaryto prosecute or defend the action, whichshall be available in the clerk's officealongwiththesummonsandcomplaintorsummons with notice or third-party summons and complaint.The case will be given an index number, or, incourtsotherthanthesupreme or countycourts,anynecessaryfilingnumberandtheapplication will be submitted to a judge ofthecourt.Ifthecourtapprovestheapplication, the plaintiff will by written order be givennotice that all fees and costs relating to the filing and serviceshallbewaived.Ifthecourt denies the application the plaintiff will bywritten order be given notice that the case will be dismissed if the feeis not paid within one hundred twenty days of the date of the order.* NB Effective September 1, 2011(e)When motion not required. Where a party is represented in a civilaction by a legal aid society or a legalservicesorothernonprofitorganization,whichhas as its primary purpose the furnishing of legalservices to indigent persons, or by private counsel working on behalf ofor under the auspices of such societyororganization,allfeesandcostsrelatingtothefiling and service shall be waived without thenecessity of a motion and the case shall be given an indexnumber,or,in a court other than the supreme or county court, an appropriate filingnumber,providedthatadetermination has been made by such society,organization or attorney that such party is unabletopaythecosts,feesand expenses necessary to prosecute or defend the action, and thatan attorney's certification that such determinationhasbeenmadeisfiledwiththe clerk of the court along with the summons and complaintor summons with notice or third-party summons and complaint or otherwiseprovided to theclerkofthecourt.Whereanattorneycertifies,pursuant to section eleven hundred eighteen of the family court act, andinaccordancewithproceduresof the appropriate appellate division,that a party orchildwhoisthesubjectofanappealhasbeenrepresentedinthefamily court by assigned counsel or by a legal aidsociety or a legal services or other nonprofit organization,whichhasasitsprimarypurposethefurnishing of legal services to indigentpersons, or by privatecounselworkingonbehalfoforundertheauspicesof such society or organization, and, in the case of a counselassigned to an adult party, that the party continues to be indigent, theparty or childshallbepresumedeligibleforpoorpersonreliefpursuant to this section.* (f)Fees for inmates. 1. Notwithstanding any other provision of lawto the contrary, a federal, state or localinmateundersentenceforconvictionofacrimemayseektocommencehisor her action orproceeding by paying a reduced filing fee as provided inparagraphtwoofthis subdivision. Such inmate shall file the form affidavit referredto in subdivision (d)ofthissectionalongwiththesummonsandcomplaint or summons with notice or third-party summons and complaint orpetitionornotice of petition or order to show cause. As part of suchapplication, the inmate shall indicate the name and mailingaddressofthefacilityatwhichheor she is confined along with the name andmailing address of any other federal, state or local facilityatwhichheorshe was confined during the preceding six month period. The casewill be given an index number if applicable, or, incourtsotherthanthesupremeorcountycourts,anynecessaryfiling number and theapplication will be submitted to a judge of the court. Uponreceiptofthe application, the court shall obtain from the appropriate official ofthefacilityatwhichthe inmate is confined a certified copy of theinmate's trust fund account statement (or institutional equivalent)forthesixmonthperiod preceding filing of the inmate's application. Ifthe inmate has been confined for less than six months at suchfacility,the court shall obtain additional information as follows:(i)inthecaseofastateinmate who has been transferred fromanother state correctional facility, the court shall obtain a trust fundaccount statement for the six month period from thecentralofficeofthe department of correctional services in Albany; or(ii)inthecaseof a state inmate who is newly transferred from afederal or local correctional facility, the court shall obtain any trustfund account statement currently available from such facility. The courtmay, in its discretion, seekfurtherinformationfromthepriororcurrent facility.2.Ifthe court determines that the inmate has insufficient means topay the full filing fee, the courtmaypermittheinmatetopayareducedfiling fee, the minimum of which shall not be less than fifteendollars and the maximum of which shall not be more thanfiftydollars.Thecourtshallrequireaninitialpaymentof such portion of thereduced filingfeeastheinmatecanreasonablyaffordorshallauthorizenoinitialpaymentof the fee if exceptional circumstancesrender the inmate unable to pay anyfee;providedhowever,thatthedifferencebetweenthe amount of the reduced filing fee and the amountpaid by the inmate in the initialpartialpaymentshallbeassessedagainsttheinmate as an outstanding obligation to be collected eitherby the superintendent or the municipal official of the facility at whichthe inmate is confined, as the case may be,inthesamemannerthatmandatorysurchargesare collected as provided for in subdivision fiveofsection60.35ofthepenallaw.Thecourtshallnotifythesuperintendentorthemunicipalofficialofthe facility where theinmate is housed of the amount of the reduced filing feethatwasnotdirectedtobepaid by the inmate.Thereafter, the superintendent orthe municipal official shall forward to the courtanyfeeobligationsthat have been collected, provided however, that:(i)innoevent shall the filing fee collected exceed the amount offees required for the commencement of an action or proceeding; and(ii) in no event shall an inmate be prohibited from proceeding for thereason that the inmate has no assets and no means by whichtopaytheinitial partial filing fee.3.Theinstitutionatwhichan inmate is confined, or the centralofficeforthedepartmentofcorrectionalservices,whicheverisapplicable,shallpromptly provide the trust fund account statement tothe inmate as required by this subdivision.4. Whenever any federal, state or local inmate obtains ajudgmentinconnection with any action or proceeding which exceeds the amount of thefilingfee,paid in accordance with the provisions of this subdivisionfor commencing such action or proceeding, the court shall awardtotheprevailinginmate,as a taxable disbursement, the actual amount of anyfee paid to commence the action or proceeding.5. The provisions of this subdivision shall not apply to aproceedingcommencedpursuanttoarticleseventy-eightofthischapter whichalleges a failure to correctly award or certify jail time credit dueaninmate,in violation of section six hundred-a of the correction law andsection 70.30 of the penal law.* NB Expires September 1, 2011
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  • § 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, 2011 * (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, 2011 (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 correctional services 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 correctional services, 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, 2011

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