2006 New York Code - 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, 2007
    * (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, 2007
    (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 a law guardian 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, 2007