2023 New York Laws › CVP - Civil Practice Law and Rules › Article 11 - Poor Persons › 1101 - Motion for Permission to Proceed as a Poor Person; Affidavit; Certificate; Notice; Waiver of Fee; When Motion Not Required.

§  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