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State Codes and Statutes

State Codes and Statutes

Statutes > New-york > Cvp > Article-11 > 1101

§  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