Matter of Bruce v Bruce

[*1] Matter of Bruce v Bruce 2013 NY Slip Op 51658(U) Decided on October 4, 2013 Supreme Court, Rensselaer County Zwack, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 4, 2013
Supreme Court, Rensselaer County

In the Matter of the Application of Kenneth A. Bruce, Jr., Plaintiff, For Permission to Prosecute as a Poor Person

against

Tina M. Bruce, Defendant.



242189



Kenneth A. Bruce, Jr.

Petitioner and Self Represented Litigant

2421 6th Avenue

Watervliet, New York 12189

Rensselaer County Attorney

Jill A. Kehn, Esq., of counsel

Ned Pattison Government Center

1600 Seventh Avenue

Troy, New York 12180

Henry F. Zwack, J.

In this matrimonial action, petitioner moves for poor person status pursuant to CPLR 1101. The Rensselaer County Attorney opposes the motion on the grounds that the petitioner has not demonstrated he cannot afford to pay for an attorney or the fees related to this matter, and that the petitioner is not a resident of Rensselaer County and could commence the divorce action in the county in which he resides. The County Attorney argues that the petitioner in his application sets forth that he has no income whatsoever and fails to provide any information regarding any services he may or may not receive. The petitioner, in a reply affidavit, informs the Court that he resides with his father, pays no rents, his father provides for his food, he has no expenses, and pays no monthly bills. The petitioner further states that he is unable to find employment and claims he was informed by a prospective employer to not apply for a job on account of a 1996 criminal conviction.

The summons and verified complaint in the divorce action were filed on July 19, 2013 with the Rensselaer County Clerk.

CPLR 1101[a] provides that an affidavit in support of a motion for permission to proceed as a poor person is required to list income, property, affirm that he or she is unable to pay the costs, fees and expenses necessary to prosecute or defend the action; and set forth the nature of the action and facts regarding its merit 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." Notice of the motion , "if an action has already been commenced...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..."(CPLR 1101[c]).

Here, the petitioner has not provided proof of service of the motion on the defendant spouse. By filing the summons and complaint in the divorce action, thereby commencing the action, it was incumbent on petitioner to give both the County Attorney and the defendant notice of the instant motion (CPLR 1101[c]). Petitioner's failure to properly serve the defendant, a statutorily necessary party, is sufficient to require the dismissal of the motion (Senor v P. Behrle, 63 AD3d 1454, 1455 [3d Dept 2009]; Salvador v Town of Lake George Planning Board, 31 AD3d 906, 907 [3d Dept 2006]).

On the merits, the Court also denies the petitioner's motion for poor person status. Here, the Court notes the opposition of the County Attorney, who challenges petitioner's designation of venue and his failure to disclose his source of income and failure to provide [*2]any information regarding any services he may or may not receive.[FN1]

Turning first to the County's objection to petitioner's designation of venue, the Court is mindful that CPLR § 509 affords petitioner, as plaintiff in the divorce action, the opportunity to designate venue, including venue based on the residency of any party (CPLR § 503[a]). Certainly, the County is not a party in underlying divorce action and has not complied with — nor could it — with the statutory procedure for changing venue (CPLR 511[b]). All that said, the instant motion concerns only the issue of whether petitioner is entitled to poor person status. Considering the petitioner's costs, fees and expenses of the divorce action would be a county charge if poor person status was granted (Deason v Deason, 32 NY2d 93 [1973]), it can hardly be argued that the County lacks sufficient interest to raise the issue of whether petitioner is entitled to proceed as a poor person when he venues an action in a county where he does not reside.

On the issue of whether the County should bear the costs, fees and expenses of petitioner, a non-resident of the county, as a poor person in a divorce action that he has commenced, the Court agrees with the County. Surely, inasmuch the grant of poor person status makes all of that person's costs and expenses in the action a county charge — thereby entitling the county to notice of the application and opportunity to be heard on the merits of the application — it must be said where the person seeking poor status is the plaintiff in the action and has the absolute right of first choice to venue the action (CPLR § 509; Grzesiak v Abraham & Straus Stores, 72 AD2d 729, 730 [lst Dept 1979]), the poor person application must be venued where the petitioner resides. Simply stated, petitioner's election to proceed in the first instance by commencing an action in a county where he does not reside acts as a waiver of his right to proceed as a poor person in that county.

Turning to the issue of whether petitioner is unable to pay the costs and fees associated with his divorce action, considering the lack of any supporting documentation offered by the petitioner — and mindful of the petitioner's representation, in sum and substance, that his financial needs are being fully met by his father — the Court agrees with the County that there is an absence of a clear demonstration of poverty by the petitioner to entitle him to proceed in this divorce action as a poor person. Petitioner's bald, conclusory and self serving claim of being unable to obtain the funds to pay the costs, fees and expenses of maintaining this divorce action are insufficient for the Court to properly determine him to be a party entitled to proceed as poor person.

Accordingly, on the present record, the Court would deny petitioner's request to proceed as a poor person, without prejudice. [*3]

Accordingly, it is hereby

ORDERED, that the petitioner's application for permission to proceed as a poor person is denied, without prejudice; and it is further

ORDERED, that this action for divorce is deemed dismissed in the event that the petitioner does not pay the applicable filing fees within 120 days of this Decision and Order.

This constitutes the Decision and Order of the Court. This original Decision and Order is returned to the Rensselaer County Attorney. All other papers are delivered to the Supreme Court Clerk for transmission to the County Clerk. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry.

Dated:October 4, 2013

Troy, New York____________________________

Henry F. Zwack

Acting Supreme Court Justice

Papers considered:

1)Affidavit of Kenneth A,. Bruce, Jr., sworn to July 17, 2013; Summons, dated July 17, 2013; Verified Complaint, sworn to July 17, 2013, together with copy of Record of Benefit Payment History dated July 25, 2013;

2)Affirmation in Opposition by Jill A. Kehn, Esq., dated August 9, 2013;

3)Reply Affidavit of Kenneth A. Bruce, sworn to August 14, 2013. Footnotes

Footnote 1:The Court has considered the petitioner's proposed complaint in this divorce action, including his contentions: that the defendant spouse is a resident of Rensselaer County; there are no children of the marriage; he does not seek maintenance; and the parties have equitably distributed their marital property.