Matter of Roesch v McCulloch

Matter of Roesch v McCulloch 2020 NY Slip Op 05407 Decided on October 2, 2020 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: CENTRA, J.P., NEMOYER, CURRAN, WINSLOW, AND BANNISTER, JJ.
878 CA 19-01918

[*1]IN THE MATTER OF JOSEPH ROESCH, PETITIONER-APPELLANT,

v

DEBORAH MCCULLOCH, EXECUTIVE DIRECTOR, CENTRAL NEW YORK PSYCHIATRIC CENTER, RESPONDENT-RESPONDENT.

JOSEPH ROESCH, PETITIONER-APPELLANT PRO SE.

Appeal from a judgment (denominated order) of the Supreme Court, Oneida County (Bernadette T. Clark, J.), entered July 24, 2019 in a CPLR article 78 proceeding. The judgment denied petitioner's application for poor person status and dismissed the petition.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.

Memorandum: Petitioner, a resident of Central New York Psychiatric Center (Center), submitted a poor person application seeking to pursue a CPLR article 78 proceeding against respondent to obtain a refund of money he alleges was improperly taken by the Center as reimbursement for items that petitioner broke or damaged at the Center. Supreme Court denied the application and dismissed the petition. We affirm. An application to proceed as a poor person should be granted if it " 'is not frivolous or, stated another way, . . . has arguable merit' " (Matter of Young v Monroe County Clerk's Off., 46 AD3d 1379, 1380 [4th Dept 2007]; see CPLR 1101 [a], [f] [1]). "[T]he determination whether to grant permission to proceed as a poor person lies within the sound discretion of the trial court" (Young, 46 AD3d at 1380), and we conclude that the court did not abuse its discretion here (see Jefferson v Stubbe, 107 AD3d 1424, 1424 [4th Dept 2013], appeal dismissed and lv denied 22 NY3d 928 [2013]).

Entered: October 2, 2020

Mark W. Bennett

Clerk of the Court