VJC Clerk Academy CPLR Article 11: Poor Persons Practice Flashcards

CPLR 1101: Motion to Proceed as a Poor Person

  • Eligibility and Application: Any party involved in an action or appeal may request that the court allow them to proceed as a poor person. This request generally requires the filing of a motion, except for specific circumstances outlined in Subdivision (e) regarding legal services representation.

  • Jurisdiction for the Motion:

    • The motion may be filed in the court conducting the trial.

    • If the request is for an appeal, the motion must be filed in the appellate court.

    • Prohibition on Remand: An appellate court does not have the authority to remand a poor person motion to be heard in a trial court.

  • Affidavit Requirements: An affidavit must accompany the motion and must explicitly state the following five elements:

    1. Income and Assets: The exact amount and sources of the party's income, as well as a list and value of all property owned.

    2. Financial Inability: A statement that the party is unable to pay the costs, fees, and expenses necessary to prosecute or defend the action or appeal.

    3. Nature of the Action: A description of the nature of the legal action or appeal.

    4. Merit of the Contentions: Sufficient facts must be provided so the court can ascertain the merit of the party's contentions. This is required because the court must determine that the action is not frivolous. According to CPLR 1101(b), the court may also require a certificate from an attorney stating that they have examined the action and believe there is merit to the moving party’s contentions.

    5. Beneficial Interest: Whether any other person is beneficially interested in any recovery sought. If such a person exists, the affidavit must state whether that person is also unable to pay the necessary costs, fees, and expenses.

  • Notice Requirements: Pursuant to Subdivision (c), if the action has already been commenced, notice of the motion must be served upon:

    • All parties involved in the action.

    • The County Attorney.

    • The Corporation Counsel (if the action is triable within the City of New York).

Filing Fee Waiver and Procedural Dismissals

  • Commencement via Waiver (Subdivision d): A plaintiff is permitted to commence an action without an upfront payment of the filing fee.

  • Required Documentation: The plaintiff must file a form affidavit demonstrating an inability to pay the fee. This form must be made available at the clerk's office.

  • Judicial Approval: The affidavit is submitted to a judge for approval. However, the summons and complaint, summons with notice, or third-party complaint must be filed to formally commence the action.

  • Written Order Outcomes:

    • Approval: If the application is approved, the plaintiff receives a written order stating that all fees and costs related to filing and service are waived.

    • Denial: If the application is denied, the plaintiff receives written notice. The case will be dismissed if the filing fee is not paid within 120120 days of the date of the order.

Special Provisions for Incarcerated Persons and Legal Services

  • Incarcerated Persons (Subdivision f): Inmates may commence an action by paying a reduced filing fee.

    • The inmate must file a form affidavit showing the inability to pay.

    • The detention facility is required to provide the court with a statement regarding the inmate's trust fund account.

    • The reduced fee ranges from a minimum of 1515 to a maximum of 5050.

  • Exception to Motion Requirement (Subdivision e): No formal motion is required if the plaintiff is represented by a non-profit legal services organization for the poor, or a lawyer working under the auspices of such an organization.

    • Counsel Certification: Counsel must file a certification stating that the organization or attorney has determined the plaintiff is unable to pay the costs, fees, and expenses.

    • Extended Waivers: Under this subdivision, the costs of serving papers are waived in addition to the filing fee.

CPLR 1102: Benefits of Poor Person Status

  • Financial Reductions: All costs, fees, and expenses of the trial are waived.

  • Legal Representation: The court has the discretion to assign an attorney to represent the poor person.

  • Appellate Benefits: When granted permission to appeal as a poor person, the party is entitled to:

    • Free Stenographic Transcripts: These are paid for by the county or, if within New York City, by the city.

    • Typewritten Briefs: The right to submit briefs in a typewritten format.

  • Stenographer Notification and Deadlines:

    • The court clerk must notify the stenographer of the order granting poor person status within 22 days of the filing of the order.

    • The stenographer must then produce 22 copies of the transcripts within 2020 days of receiving this notification.

CPLR 1103: Distribution of Judgments and Settlements

  • Payment to Clerk: Any judgment or settlement reaching a conclusion in favor of a poor person must be paid directly to the clerk of the court where the order granting poor person status was originally entered.

  • Court Distribution: The funds await distribution according to a specific court order.

  • Deductions: Pursuant to CPLR 1102(d), the court may deduct any waived costs and fees out of the judgment or settlement amount awarded to the poor person.

Questions & Discussion

  • Question 1 (CPLR 1101): Who is considered a poor person?

    • Answer: A person who is unable to pay the costs, fees, and expenses necessary to prosecute or defend the action. (Distinguished from definitions based on specific dollar amounts like 500500 or status like infancy).

  • Question 2 (CPLR 1103): Where is a recovery in favor of a poor person paid?

    • Answer: It is paid directly to the clerk of the court in which the order permitting the person to proceed as a poor person was entered.

  • Question 3 (CPLR 11): What is the deadline to pay if a poor person motion is denied?

    • Answer: The plaintiff has 120120 days from the date of the order to pay the fee before the case is dismissed.

  • Question 4: Is a person represented by a legal aid society automatically granted poor person status?

    • Answer: False. While a formal motion is not required, a certificate must still be filed by the legal aid attorney stating that a determination has been made by the society that the party is unable to pay the costs and expenses of the action.

  • Question 5: What are the fee limits for incarcerated persons?

    • Answer: True. Eligible inmates may commence an action by paying a reduced filing fee of not less than 1515 dollars and no more than 5050 dollars.