JEFFERSON, DONNELL v. STUBBE, ESQ., JOSHUA

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 7, 2013
• Docket: CA 11-02452
• Status: Published

Opinion

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department

446 CA 11-02452 PRESENT: CENTRA, J.P., FAHEY, CARNI, WHALEN, AND MARTOCHE, JJ.

DONNELL JEFFERSON, PLAINTIFF-APPELLANT,

V MEMORANDUM AND ORDER

JOSHUA STUBBE, DEFENDANT-RESPONDENT.

DONNELL JEFFERSON, PLAINTIFF-APPELLANT PRO SE.

WILLIAM K. TAYLOR, COUNTY ATTORNEY, ROCHESTER (KRISTINE M. CAHILL OF COUNSEL), FOR DEFENDANT-RESPONDENT.

Appeal from an order of the Supreme Court, Monroe County (Elma A. Bellini, J.), entered August 3, 2011. The order denied the motion of plaintiff for permission to proceed as a poor person.

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

Memorandum: Plaintiff commenced this action seeking declaratory and other relief based on the alleged negligence of defendant, his former attorney in a criminal matter. Contrary to plaintiff’s contention, Supreme Court did not abuse its discretion in denying his motion for permission to proceed as a poor person pursuant to CPLR 1101 (see generally Matter of Young v Monroe County Clerk’s Off., 46 AD3d 1379, 1380). Although we agree with plaintiff that he established that he is unable to pay the costs, fees and expenses necessary to prosecute the action (see CPLR 1101 [a]), we conclude that the action does not have “arguable merit” (Nicholas v Reason, 79 AD2d 1113, 1113; cf. Popal v Slovis, 82 AD3d 1670, 1671, lv dismissed 17 NY3d 842; Young, 46 AD3d at 1380).

Entered: June 7, 2013 Frances E. Cafarell Clerk of the Court