Sundt v. New York State Electric & Gas Corp.

92 A.D.2d 722, 460 N.Y.S.2d 968, 1983 N.Y. App. Div. LEXIS 17018

Opinion

— Order unanimously reversed, with costs, and matter remitted to Supreme Court, Wyoming County, for further proceedings in accordance with the following memorandum: After a jury verdict of no cause of action was returned against him, plaintiff moved pursuant to CPLR 1101 before the trial court for permission to proceed on appeal as a poor person. The trial court denied plaintiff’s motion, notwithstanding a finding that a meritorious basis for appeal exists, because the plaintiff was currently employed. In determining whether a party should be afforded poor person status, a court should completely examine the party’s over-all financial situation (see, e.g., Lancer v Lancer, 70 Mise 2d 1045). The trial court failed to do so and erred in finding that plaintiff did not qualify as a poor person solely because of his employment. The trial court, in its sound discretion, should determine whether plaintiff qualifies as a poor person (Jenks v Murphy, 21 AD2d 346). (Appeal from order of Supreme Court, Wyoming County, Johnson, J. — poor person status.) Present — Dillon, P. J., Hancock, Jr., Doerr, Moule and Schnepp, JJ.