N.Y. CPLR § 1101

NEW YORK CIVIL PRACTICE LAW AND RULES (CPLR) New York State | For Informational Purposes Only CPLR § 1101 Motion to waive costs, fees, and expenses; affidavit oraffirmation; certificate; notice; when motion not required § 1101. Motion to waive costs, fees, and expenses; affidavit oraffirmation; certificate; notice; when motion not required. (a) Motion;affidavit or affirmation. Upon motion of any party, the court in whichan action is triable, or to which an appeal has been or will be taken,may waive the costs, fees, and expenses if such party has insufficientmeans to pay such costs, fees, and expenses. Where a motion to waivecosts, fees, and expenses is made in the court in which an appeal hasbeen or will be taken, such court shall hear such motion on the meritsand shall not remand such motion to the trial court for consideration.The moving party shall file an affidavit or affirmation setting forththe amount and sources of such party's income and assets and listing anyreal property owned by such party with its value; that such party lackssufficient means to pay the costs, fees, and expenses necessary toprosecute or defend the action or to maintain or respond to the appeal;the nature of the action; sufficient facts so that the merit of thecontentions can be ascertained; and whether any other person isbeneficially interested in any recovery sought and, if so, whether everysuch person is unable to pay such costs, fees, and expenses. Anexecutor, administrator, or other representative may move for a waiverof costs, fees, and expenses on behalf of a deceased, infant, orincompetent person.(b) Certificate. The court may require the moving party to file withthe affidavit a certificate of an attorney stating that the attorney hasexamined the action and believes there is merit to the moving party'scontentions.(c) Notice. Except as provided in subdivisions (d) and rtificate of an attorney stating that the attorney hasexamined the action and believes there is merit to the moving party'scontentions.(c) Notice. Except as provided in subdivisions (d) and (e) of thissection, if an action has already been commenced, notice of the motionshall be served on all parties, and notice shall also be given to thecounty attorney in the county in which the action is triable or thecorporation counsel if the action is triable in the city of New York.* (d) Waiver of fee in certain cases. Except as otherwise provided insubdivision (f) of this section, if applicable, a plaintiff may seek tocommence his or her action without payment of the fee required by filingthe form affidavit, attesting that such plaintiff is unable to pay thecosts, fees and expenses necessary to prosecute or defend the action,which shall be available in the clerk's office along with the summonsand complaint or summons with notice or third-party summons andcomplaint. The case will be given an index number, or, in courts otherthan the supreme or county courts, any necessary filing number and theapplication will be submitted to a judge of the court. If the courtapproves the application, the plaintiff will by written order be givennotice that all fees and costs relating to the filing and service shallbe waived. If the court denies the application the plaintiff will bywritten order be given notice that the case will be dismissed if the feeis not paid within one hundred twenty days of the date of the order.* NB Effective until September 1, 2027* (d) Waiver of fee in certain cases. A plaintiff may seek to commencehis or her action without payment of the fee required by filing the formaffidavit, attesting that such plaintiff is unable to pay the costs,fees and expenses necessary to prosecute or defend the action, whichshall be available in the clerk's office along with the summons andcomplai that such plaintiff is unable to pay the costs,fees and expenses necessary to prosecute or defend the action, whichshall be available in the clerk's office along with the summons andcomplaint or summons with notice or third-party summons and complaint.The case will be given an index number, or, in courts other than thesupreme or county courts, any necessary filing number and theapplication will be submitted to a judge of the court. If the courtapproves the application, the plaintiff will by written order be givennotice that all fees and costs relating to the filing and service shallbe waived. If the court denies the application the plaintiff will bywritten order be given notice that the case will be dismissed if the feeis not paid within one hundred twenty days of the date of the order.* NB Effective September 1, 2027(e) When --- NEW YORK CIVIL PRACTICE LAW AND RULES (CPLR) New York State | For Informational Purposes Only motion not required. Where a party is represented in a civilaction by a legal aid society or a legal services or other nonprofitorganization, which has as its primary purpose the furnishing of legalservices to indigent persons, or by private counsel working on behalf ofor under the auspices of such society or organization, all fees andcosts relating to the filing and service shall be waived without thenecessity 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 filingnumber, 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 thatan attorney's certification that such determination has been made isfiled with the clerk of the court along with the summons and complaintor summons with notice or third-party summons and complaint or otherwiseprovided tion that such determination has been made isfiled with the clerk of the court along with the summons and complaintor summons with notice or third-party summons and complaint or otherwiseprovided to the clerk of the court. Where an attorney certifies,pursuant to section eleven hundred eighteen of the family court act, andin accordance with procedures of the appropriate appellate division,that a party or child who is the subject of an appeal has beenrepresented in the family court by assigned counsel or by a legal aidsociety or a legal services or other nonprofit organization, which hasas its primary purpose the furnishing of legal services to indigentpersons, or by private counsel working on behalf of or under theauspices of such society or organization, and, in the case of a counselassigned to an adult party, that the party continues to be indigent, theparty or child shall be presumed eligible for poor person reliefpursuant to this section.* (f) Fees for incarcerated individuals. 1. Notwithstanding any otherprovision of law to the contrary, a federal, state or local incarceratedindividual under sentence for conviction of a crime may seek to commencehis or her action or proceeding by paying a reduced filing fee asprovided in paragraph two of this subdivision. Such incarceratedindividual shall file the form affidavit referred to in subdivision (d)of this section along with the summons and complaint or summons withnotice or third-party summons and complaint or petition or notice ofpetition or order to show cause. As part of such application, theincarcerated individual shall indicate the name and mailing address ofthe facility at which he or she is confined along with the name andmailing address of any other federal, state or local facility at whichhe or she was confined during the preceding six month period. The casewill be given an index number if applicable, or, in courts other ddress of any other federal, state or local facility at whichhe or she was confined during the preceding six month period. The casewill be given an index number if applicable, or, in courts other thanthe supreme or county courts, any necessary filing number and theapplication will be submitted to a judge of the court. Upon receipt ofthe application, the court shall obtain from the appropriate official ofthe facility at which the incarcerated individual is confined acertified copy of the incarcerated individual's trust fund accountstatement (or institutional equivalent) for the six month periodpreceding filing of the incarcerated individual's application. If theincarcerated individual has been confined for less than six months atsuch facility, the court shall obtain additional information as follows:(i) in the case of a state incarcerated individual who has beentransferred from another state correctional facility, the court shallobtain a trust fund account statement for the six month period from thecentral office of the department of corrections and communitysupervision in Albany; or(ii) in the case of a state incarcerated individual who is newlytransferred from a federal or local correctional facility, the courtshall obtain any trust fund account statement currently available fromsuch facility. The court may, in its discretion, seek furtherinformation from the prior or current facility.2. If the court determines that the incarcerated individual hasinsufficient means to pay the full filing fee, the court may permit theincarcerated individual to pay a reduced filing fee, the minimum ofwhich shall not be less than fifteen dollars and the maximum of whichshall not be more than fifty dollars. The court shall require an initialpayment of such portion of the reduced filing fee as the incarceratedindividual can reasonably afford or shall authorize no initial paymentof the fee if exceptional t shall require an initialpayment of such portion of the reduced filing fee as the incarceratedindividual can reasonably afford or shall authorize no initial paymentof the fee if exceptional circumstances render the incarceratedindividual unable to pay any fee; provided however, that the differencebetween the amount of the reduced filing fee and the amount paid by theincarcerated individual in the initial partial payment shall be assessedagainst the incarcerated individual as an outstanding obligation to becollected either by the superintendent or the municipal official of thefacility at which the incarcerated individual is confined, as the casemay be, in the same manner that mandatory surcharges are collected CPLR § 1101 Page 2 --- NEW YORK CIVIL PRACTICE LAW AND RULES (CPLR) New York State | For Informational Purposes Only asprovided for in subdivision five of section 60.35 of the penal law. Thecourt shall notify the superintendent or the municipal official of thefacility where the incarcerated individual is housed of the amount ofthe reduced filing fee that was not directed to be paid by theincarcerated individual. Thereafter, the superintendent or the municipalofficial shall forward to the court any fee obligations that have beencollected, provided however, that:(i) in no event shall the filing fee collected exceed the amount offees required for the commencement of an action or proceeding; and(ii) in no event shall an incarcerated individual be prohibited fromproceeding for the reason that the incarcerated individual has no assetsand no means by which to pay the initial partial filing fee.3. The institution at which an incarcerated individual is confined, orthe central office for the department of corrections and communitysupervision, whichever is applicable, shall promptly provide the trustfund account statement to the incarcerated individual as required bythis for the department of corrections and communitysupervision, whichever is applicable, shall promptly provide the trustfund account statement to the incarcerated individual as required bythis subdivision.4. Whenever any federal, state or local incarcerated individualobtains a judgment in connection with any action or proceeding whichexceeds the amount of the filing fee, paid in accordance with theprovisions of this subdivision for commencing such action or proceeding,the court shall award to the prevailing incarcerated individual, as ataxable disbursement, the actual amount of any fee paid to commence theaction or proceeding.5. The provisions of this subdivision shall not apply to a proceedingcommenced pursuant to article seventy-eight of this chapter whichalleges a failure to correctly award or certify jail time credit due anincarcerated individual, in violation of section six hundred-a of thecorrection law and section 70.30 of the penal law.* NB Expires September 1, 2027 CPLR § 1101 Page 3