§ 1101 — Motion to waive costs, fees, and expenses; affidavit or affirmation; certificate; notice; when motion not required

New York § 1101

• Jurisdiction: New York
• Law CVP: Civil Practice Law & Rules
• Art. 11: Waiver of Costs, Fees, and Expenses

Text

§ 1101. Motion to waive costs, fees, and expenses; affidavit or\naffirmation; certificate; notice; when motion not required. (a) Motion;\naffidavit or affirmation. Upon motion of any party, the court in which\nan action is triable, or to which an appeal has been or will be taken,\nmay waive the costs, fees, and expenses if such party has insufficient\nmeans to pay such costs, fees, and expenses. Where a motion to waive\ncosts, fees, and expenses is made in the court in which an appeal has\nbeen or will be taken, such court shall hear such motion on the merits\nand shall not remand such motion to the trial court for consideration.\nThe moving party shall file an affidavit or affirmation setting forth\nthe amount and sources of such party's income and assets and listing any\nreal property owned by such party with its value; that such party lacks\nsufficient means to pay the costs, fees, and expenses necessary to\nprosecute or defend the action or to maintain or respond to the appeal;\nthe nature of the action; sufficient facts so that the merit of the\ncontentions can be ascertained; and whether any other person is\nbeneficially interested in any recovery sought and, if so, whether every\nsuch person is unable to pay such costs, fees, and expenses. An\nexecutor, administrator, or other representative may move for a waiver\nof costs, fees, and expenses on behalf of a deceased, infant, or\nincompetent person.\n (b) Certificate. The court may require the moving party to file with\nthe affidavit a certificate of an attorney stating that the attorney has\nexamined the action and believes there is merit to the moving party's\ncontentions.\n (c) Notice. Except as provided in subdivisions (d) and (e) of this\nsection, if an action has already been commenced, notice of the motion\nshall be served on all parties, and notice shall also be given to the\ncounty attorney in the county in which the action is triable or the\ncorporation counsel if the action is triable in the city of New York.\n * (d) Waiver of fee in certain cases. Except as otherwise provided in\nsubdivision (f) of this section, if applicable, a plaintiff may seek to\ncommence his or her action without payment of the fee required by filing\nthe form affidavit, attesting that such plaintiff is unable to pay the\ncosts, fees and expenses necessary to prosecute or defend the action,\nwhich shall be available in the clerk's office along with the summons\nand complaint or summons with notice or third-party summons and\ncomplaint. The case will be given an index number, or, in courts other\nthan the supreme or county courts, any necessary filing number and the\napplication will be submitted to a judge of the court. If the court\napproves the application, the plaintiff will by written order be given\nnotice that all fees and costs relating to the filing and service shall\nbe waived. If the court denies the application the plaintiff will by\nwritten order be given notice that the case will be dismissed if the fee\nis not paid within one hundred twenty days of the date of the order.\n * NB Effective until September 1, 2027\n * (d) Waiver of fee in certain cases. A plaintiff may seek to commence\nhis or her action without payment of the fee required by filing the form\naffidavit, attesting that such plaintiff is unable to pay the costs,\nfees and expenses necessary to prosecute or defend the action, which\nshall be available in the clerk's office along with the summons and\ncomplaint or summons with notice or third-party summons and complaint.\nThe case will be given an index number, or, in courts other than the\nsupreme or county courts, any necessary filing number and the\napplication will be submitted to a judge of the court. If the court\napproves the application, the plaintiff will by written order be given\nnotice that all fees and costs relating to the filing and service shall\nbe waived. If the court denies the application the plaintiff will by\nwritten order be given notice that the case will be dismissed if the fee\nis not paid within one hundred twenty days of the date of the order.\n * NB Effective September 1, 2027\n (e) When motion not required. Where a party is represented in a civil\naction by a legal aid society or a legal services or other nonprofit\norganization, which has as its primary purpose the furnishing of legal\nservices to indigent persons, or by private counsel working on behalf of\nor under the auspices of such society or organization, all fees and\ncosts relating to the filing and service shall be waived without the\nnecessity of a motion and the case shall be given an index number, or,\nin a court other than the supreme or county court, an appropriate filing\nnumber, provided that a determination has been made by such society,\norganization or attorney that such party is unable to pay the costs,\nfees and expenses necessary to prosecute or defend the action, and that\nan attorney's certification that such determination has been made is\nfiled with the clerk of the court along with the summons and complaint\nor summons with notice or third-party summons and complaint or otherwise\nprovided to the clerk of the court. Where an attorney certifies,\npursuant to section eleven hundred eighteen of the family court act, and\nin accordance with procedures of the appropriate appellate division,\nthat a party or child who is the subject of an appeal has been\nrepresented in the family court by assigned counsel or by a legal aid\nsociety or a legal services or other nonprofit organization, which has\nas its primary purpose the furnishing of legal services to indigent\npersons, or by private counsel working on behalf of or under the\nauspices of such society or organization, and, in the case of a counsel\nassigned to an adult party, that the party continues to be indigent, the\nparty or child shall be presumed eligible for poor person relief\npursuant to this section.\n * (f) Fees for incarcerated individuals. 1. Notwithstanding any other\nprovision of law to the contrary, a federal, state or local incarcerated\nindividual under sentence for conviction of a crime may seek to commence\nhis or her action or proceeding by paying a reduced filing fee as\nprovided in paragraph two of this subdivision. Such incarcerated\nindividual shall file the form affidavit referred to in subdivision (d)\nof this section along with the summons and complaint or summons with\nnotice or third-party summons and complaint or petition or notice of\npetition or order to show cause. As part of such application, the\nincarcerated individual shall indicate the name and mailing address of\nthe facility at which he or she is confined along with the name and\nmailing address of any other federal, state or local facility at which\nhe or she was confined during the preceding six month period. The case\nwill be given an index number if applicable, or, in courts other than\nthe supreme or county courts, any necessary filing number and the\napplication will be submitted to a judge of the court. Upon receipt of\nthe application, the court shall obtain from the appropriate official of\nthe facility at which the incarcerated individual is confined a\ncertified copy of the incarcerated individual's trust fund account\nstatement (or institutional equivalent) for the six month period\npreceding filing of the incarcerated individual's application. If the\nincarcerated individual has been confined for less than six months at\nsuch facility, the court shall obtain additional information as follows:\n (i) in the case of a state incarcerated individual who has been\ntransferred from another state correctional facility, the court shall\nobtain a trust fund account statement for the six month period from the\ncentral office of the department of corrections and community\nsupervision in Albany; or\n (ii) in the case of a state incarcerated individual who is newly\ntransferred from a federal or local correctional facility, the court\nshall obtain any trust fund account statement currently available from\nsuch facility. The court may, in its discretion, seek further\ninformation from the prior or current facility.\n 2. If the court determines that the incarcerated individual has\ninsufficient means to pay the full filing fee, the court may permit the\nincarcerated individual to pay a reduced filing fee, the minimum of\nwhich shall not be less than fifteen dollars and the maximum of which\nshall not be more than fifty dollars. The court shall require an initial\npayment of such portion of the reduced filing fee as the incarcerated\nindividual can reasonably afford or shall authorize no initial payment\nof the fee if exceptional circumstances render the incarcerated\nindividual unable to pay any fee; provided however, that the difference\nbetween the amount of the reduced filing fee and the amount paid by the\nincarcerated individual in the initial partial payment shall be assessed\nagainst the incarcerated individual as an outstanding obligation to be\ncollected either by the superintendent or the municipal official of the\nfacility at which the incarcerated individual is confined, as the case\nmay be, in the same manner that mandatory surcharges are collected as\nprovided for in subdivision five of section 60.35 of the penal law. The\ncourt shall notify the superintendent or the municipal official of the\nfacility where the incarcerated individual is housed of the amount of\nthe reduced filing fee that was not directed to be paid by the\nincarcerated individual. Thereafter, the superintendent or the municipal\nofficial shall forward to the court any fee obligations that have been\ncollected, provided however, that:\n (i) in no event shall the filing fee collected exceed the amount of\nfees required for the commencement of an action or proceeding; and\n (ii) in no event shall an incarcerated individual be prohibited from\nproceeding for the reason that the incarcerated individual has no assets\nand no means by which to pay the initial partial filing fee.\n 3. The institution at which an incarcerated individual is confined, or\nthe central office for the department of corrections and community\nsupervision, whichever is applicable, shall promptly provide the trust\nfund account statement to the incarcerated individual as required by\nthis subdivision.\n 4. Whenever any federal, state or local incarcerated individual\nobtains a judgment in connection with any action or proceeding which\nexceeds the amount of the filing fee, paid in accordance with the\nprovisions of this subdivision for commencing such action or proceeding,\nthe court shall award to the prevailing incarcerated individual, as a\ntaxable disbursement, the actual amount of any fee paid to commence the\naction or proceeding.\n 5. The provisions of this subdivision shall not apply to a proceeding\ncommenced pursuant to article seventy-eight of this chapter which\nalleges a failure to correctly award or certify jail time credit due an\nincarcerated individual, in violation of section six hundred-a of the\ncorrection law and section 70.30 of the penal law.\n * NB Expires September 1, 2027\n