N.Y. C.P.L.R. 1101

§ 1101. Motion for permission to proceed as a poor person; affidavit;\ncertificate; notice; waiver of fee; when motion not required. (a)\nMotion; affidavit. Upon motion of any person, the court in which an\naction is triable, or to which an appeal has been or will be taken, may\ngrant permission to proceed as a poor person. Where a motion for leave\nto appeal as a poor person is brought to the court in which an appeal\nhas been or will be taken, such court shall hear such motion on the\nmerits and shall not remand such motion to the trial court for\nconsideration. The moving party shall file an affidavit setting forth\nthe amount and sources of his or her income and listing his or her\nproperty with its value; that he or she is unable to pay the costs, fees\nand expenses necessary to prosecute or defend the action or to maintain\nor respond to the appeal; the nature of the action; sufficient facts so\nthat the merit of the contentions can be ascertained; and whether any\nother person is beneficially interested in any recovery sought and, if\nso, whether every such person is unable to pay such costs, fees and\nexpenses. An executor, administrator or other representative may move\nfor permission on behalf of a deceased, infant or incompetent poor\nperson.\n (b) Certificate. The court may require the moving party to file with\nthe affidavit a certificate of an attorney stating that the attorney has\nexamined the action and believes there is merit to the moving party's\ncontentions.\n (c) Notice. Except as provided in subdivisions (d) and (e) of this\nsection, if an action has already been commenced, notice of the motion\nshall be served on all parties, and notice shall also be given to the\ncounty attorney in the county in which the action is triable or the\ncorporation counsel if the action is triable in the city of New York.\n * (d) Waiver of fee in certain cases. Except as otherwise provided in\nsubdivision (f) of this section, if applicable, a plaintiff may seek to\ncommence his or her action without payment of the fee required by filing\nthe form affidavit, attesting that such plaintiff is unable to pay the\ncosts, fees and expenses necessary to prosecute or defend the action,\nwhich shall be available in the clerk's office along with the summons\nand complaint or summons with notice or third-party summons and\ncomplaint. The case will be given an index number, or, in courts other\nthan the supreme or county courts, any necessary filing number and the\napplication will be submitted to a judge of the court. If the court\napproves the application, the plaintiff will by written order be given\nnotice that all fees and costs relating to the filing and service shall\nbe waived. If the court denies the application the plaintiff will by\nwritten order be given notice that the case will be dismissed if the fee\nis not paid within one hundred twenty days of the date of the order.\n * NB Effective until September 1, 2017\n * (d) Waiver of fee in certain cases. A plaintiff may seek to commence\nhis or her action without payment of the fee required by filing the form\naffidavit, attesting that such plaintiff is unable to pay the costs,\nfees and expenses necessary to prosecute or defend the action, which\nshall be available in the clerk's office along with the summons and\ncomplaint or summons with notice or third-party summons and complaint.\nThe case will be given an index number, or, in courts other than the\nsupreme or county courts, any necessary filing number and the\napplication will be submitted to a judge of the court. If the court\napproves the application, the plaintiff will by written order be given\nnotice that all fees and costs relating to the filing and service shall\nbe waived. If the court denies the application the plaintiff will by\nwritten order be given notice that the case will be dismissed if the fee\nis not paid within one hundred twenty days of the date of the order.\n * NB Effective September 1, 2017\n (e) When motion not required. Where a party is represented in a civil\naction by a legal aid society or a legal services or other nonprofit\norganization, which has as its primary purpose the furnishing of legal\nservices to indigent persons, or by private counsel working on behalf of\nor under the auspices of such society or organization, all fees and\ncosts relating to the filing and service shall be waived without the\nnecessity of a motion and the case shall be given an index number, or,\nin a court other than the supreme or county court, an appropriate filing\nnumber, provided that a determination has been made by such society,\norganization or attorney that such party is unable to pay the costs,\nfees and expenses necessary to prosecute or defend the action, and that\nan attorney's certification that such determination has been made is\nfiled with the clerk of the court along with the summons and complaint\nor summons with notice or third-party summons and complaint or otherwise\nprovided to the clerk of the court. Where an attorney certifies,\npursuant to section eleven hundred eighteen of the family court act, and\nin accordance with procedures of the appropriate appellate division,\nthat a party or child who is the subject of an appeal has been\nrepresented in the family court by assigned counsel or by a legal aid\nsociety or a legal services or other nonprofit organization, which has\nas its primary purpose the furnishing of legal services to indigent\npersons, or by private counsel working on behalf of or under the\nauspices of such society or organization, and, in the case of a counsel\nassigned to an adult party, that the party continues to be indigent, the\nparty or child shall be presumed eligible for poor person relief\npursuant to this section.\n * (f) Fees for inmates. 1. Notwithstanding any other provision of law\nto the contrary, a federal, state or local inmate under sentence for\nconviction of a crime may seek to commence his or her action or\nproceeding by paying a reduced filing fee as provided in paragraph two\nof this subdivision. Such inmate shall file the form affidavit referred\nto in subdivision (d) of this section along with the summons and\ncomplaint or summons with notice or third-party summons and complaint or\npetition or notice of petition or order to show cause. As part of such\napplication, the inmate shall indicate the name and mailing address of\nthe facility at which he or she is confined along with the name and\nmailing address of any other federal, state or local facility at which\nhe or she was confined during the preceding six month period. The case\nwill be given an index number if applicable, or, in courts other than\nthe supreme or county courts, any necessary filing number and the\napplication will be submitted to a judge of the court. Upon receipt of\nthe application, the court shall obtain from the appropriate official of\nthe facility at which the inmate is confined a certified copy of the\ninmate's trust fund account statement (or institutional equivalent) for\nthe six month period preceding filing of the inmate's application. If\nthe inmate has been confined for less than six months at such facility,\nthe court shall obtain additional information as follows:\n (i) in the case of a state inmate who has been transferred from\nanother state correctional facility, the court shall obtain a trust fund\naccount statement for the six month period from the central office of\nthe department of corrections and community supervision in Albany; or\n (ii) in the case of a state inmate who is newly transferred from a\nfederal or local correctional facility, the court shall obtain any trust\nfund account statement currently available from such facility. The court\nmay, in its discretion, seek further information from the prior or\ncurrent facility.\n 2. If the court determines that the inmate has insufficient means to\npay the full filing fee, the court may permit the inmate to pay a\nreduced filing fee, the minimum of which shall not be less than fifteen\ndollars and the maximum of which shall not be more than fifty dollars.\nThe court shall require an initial payment of such portion of the\nreduced filing fee as the inmate can reasonably afford or shall\nauthorize no initial payment of the fee if exceptional circumstances\nrender the inmate unable to pay any fee; provided however, that the\ndifference between the amount of the reduced filing fee and the amount\npaid by the inmate in the initial partial payment shall be assessed\nagainst the inmate as an outstanding obligation to be collected either\nby the superintendent or the municipal official of the facility at which\nthe inmate is confined, as the case may be, in the same manner that\nmandatory surcharges are collected as provided for in subdivision five\nof section 60.35 of the penal law. The court shall notify the\nsuperintendent or the municipal official of the facility where the\ninmate is housed of the amount of the reduced filing fee that was not\ndirected to be paid by the inmate. Thereafter, the superintendent or\nthe municipal official shall forward to the court any fee obligations\nthat have been collected, provided however, that:\n (i) in no event shall the filing fee collected exceed the amount of\nfees required for the commencement of an action or proceeding; and\n (ii) in no event shall an inmate be prohibited from proceeding for the\nreason that the inmate has no assets and no means by which to pay the\ninitial partial filing fee.\n 3. The institution at which an inmate is confined, or the central\noffice for the department of corrections and community supervision,\nwhichever is applicable, shall promptly provide the trust fund account\nstatement to the inmate as required by this subdivision.\n 4. Whenever any federal, state or local inmate obtains a judgment in\nconnection with any action or proceeding which exceeds the amount of the\nfiling fee, paid in accordance with the provisions of this subdivision\nfor commencing such action or proceeding, the court shall award to the\nprevailing inmate, as a taxable disbursement, the actual amount of any\nfee paid to commence the action or proceeding.\n 5. The provisions of this subdivision shall not apply to a proceeding\ncommenced pursuant to article seventy-eight of this chapter which\nalleges a failure to correctly award or certify jail time credit due an\ninmate, in violation of section six hundred-a of the correction law and\nsection 70.30 of the penal law.\n * NB Expires September 1, 2017\n