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

Subd (a) permits a motion to be made for permission to proceed as a poor person and the granting of such permission by an appropriate court. In order to simplify and make terminology uniform, the words “motion” and “moving party” are used in preference to “application” and “applicant.” The subdivision is derived from §§ 198, 198-a and 199 and part of § 196 of the CPA as well as parts of rules 35, 36 and 37 of the RCP. CPA § 197, which provides that the unpaid costs in a former action are not a bar to proceeding as a poor person after permission to do so has been granted, has been omitted as unnecessary. Under former law, permission to defend as a poor person was more restricted than leave to so prosecute. See 20 Carmody-Wait, Cyclopedia of New York Practice 82 (1955). A plaintiff seeking permission to proceed as a poor person must show only that he had a cause of action; a defendant was confronted with the stricter standard of whether the action involved his “right, title or interest in or to real or personal property.” CPA §§ 196, 198. This distinction has been abolished. The first sentence of this subdivision is intended to make it clear that permission may be granted before the action has been commenced or at any time thereafter. The granting of permission is discretionary with the court. Smith v Smith, 2 NY2d 120, 123, 138 NE2d 790, 792 (1956). The court in passing upon a motion for permission to proceed as a poor person should consider the moving party’s motives, for the privileges granted to a poor person are made available at the expense and inconvenience of the court, the litigants and the public. It should be noted, however, that one lower court has held motive immaterial. Ganem v Bernuth Lembcke Co. 82 NYS2d 777 (NYC Ct 1948). The standards required by this subdivision and the contents of the affidavit are derived from CPA § 199 and part of RCP 35 and 37. One important change has been made. The requirement of subparagraph 2 of rule 35 of the RCP that the petition state that “the applicant is not worth three hundred dollars in cash or available property besides the wearing apparel and furniture necessary for himself and his family” has been replaced by the requirement that the affidavit set forth “the amount and sources of his income” and list “his property with its value.” The new requirement places the actual facts of the moving party’s financial position before the court and enables it to ascertain more easily whether permission to proceed as a poor person should be granted. While the former provision appears to supply a simple objective standard for the court, as a practical matter the petitioner himself must decide what is “necessary” for his family. He does not need to list the items and his judgment is accepted unless the court’s suspicions are aroused. Moreover, a fixed maximum sum of three hundred dollars is unnecessarily rigid. The new provision gives the court greater control as well as greater discretion. Furthermore, the words “available property” in subparagraph 2 of rule 35 raise difficulties because they are not subject to precise definition. See Smith v Smith, supra. The majority of “poor person” provisions in other states do not contain a limitation on the moving party’s worth and leave the matter to the complete discretion of the trial court. See, e. g., Ill Rev Stat c. 33, § 5 (1955); Mo Rev Stat §§ 205.590, 514.040 (1949). The requirement in RCP 36 that the court to which the application is made find that the applicant has a “good cause of action” has been altered. Some courts have been overly strict in interpreting this requirement with the result that they have required a substantial probability of success. The proposed subdivision requires only that the court be satisfied that there is merit in the applicant’s contentions— i.e., that it is not frivolous.

The attorney’s certificate, required by subdivision (b) also utilizes this standard. The last sentence of RCP 36 has been omitted, since a court always possesses the power to vacate or annul its own orders. Thus, some courts have vacated orders authorizing an applicant to proceed as a poor person in situations to which RCP 36 was not applicable. See, e.g., Rosa v Second Avenue R.R., 20 App Div 334, 46 NY Supp 807 (1st Dept 1897). It has been held that a court has no power to entertain an application for permission to proceed as a poor person if costs already awarded in the action are unpaid and a stay under CPA § 1520 has thereby become operative. See, e.g., DeRuvo v Paglia, 135 NYS2d 666 (Sup Ct 1954). Costs awarded upon appeal from an intermediate order are within this section. See, e.g., Muller v Brooklyn Heights RR., 139 App Div 727, 124 NY Supp 491 (2d Dept 1910). It would seem that such an outright prohibition is improper and that in appropriate cases the court should have the power to grant permission despite the fact that prior costs have not been paid. This problem is considered in detail in new CPLR sections on costs. Until 1941, CPA § 196 contained no reference to a representative of a deceased poor person. In 1939, the Court of Appeals held that an executor or administrator of a deceased poor person could not avail himself of its provisions. Fontheim v Third Avenue Ry., 281 NY 392, 24 NE2d 95 (1939). As a result of this case, the section was amended to allow application by a person “as the executor or administrator or other representative of a deceased person.” NY Laws 1941, c. 164. The provision is continued in the new subdivision. It is broadened to permit applications by a representative of infants or other persons incompetent to sue on their own behalf. In connection with a motion by the representative of a deceased person, it should be noted that if the distributees are of sufficient financial status, the court should deny permission. But cf. Pizza v Circle Coal & Coke Co. 169 Misc 897, 9 NYS2d 261 (Sup Ct 1938); 20 Carmody-Wait, Cyclopedia of New York Practice 76 (1955).

Under the new provisions, persons beneficially interested in the recovery, such as distributees, would be indicated in the affidavit. This requirement, that the affidavit state whether any other person is beneficially interested in any recovery sought and whether he is able to pay the costs, fees and expenses, is new. Its purpose is to place all relevant facts before the court. It would reveal an agreement by an attorney to handle the case on a contingent fee basis; in such an instance, the court may not grant permission to proceed as a poor person. Cf. Lawrence v Murray, 171 Misc 666, 12 NYS2d 262 (Sup Ct 1939). Similarly, when the moving party is only one of several plaintiffs or defendants the court will not ordinarily grant such permission. See 20 Carmody-Wait Cyclopedia of New York Practice 75–76 (1955).

The requirement of certification by an attorney, presently found in RCP 35, is made discretionary; it gives some assurance that the affidavit will be in proper form and that the moving party’s contentions have merit. This is especially true where the attorney consents to act as attorney for the poor person. The requirement that the attorney certify that the contentions have merit, rather than that he has a “good cause of action” conforms to the requirements of the affidavit.

Subd (c) is new, but it is merely a statement of existing case law. See, e.g., Rosetano v State of New York, 208 Misc 352, 143 NYS2d 904 (Ct Cl 1955); 20 Carmody-Wait, Cyclopedia of New York Practice 81 (1955).

This bill would amend CPLR Sections 1101, 1102, and 1103, as well as Criminal Procedure Law Section 380.55, to eliminate the use of the phrase “poor person.” The designation of individuals with insufficient means to prosecute or defend a legal action as “poor persons” is a highly outdated, pejorative, and often inaccurate legal term. This bill would amend the affected statutes to eliminate such designation and to clearly and accurately reflect their combined purpose, which is to describe the making of a motion to waive costs, fees, and expenses, and the benefits that can flow from a successful motion. Furthermore, this bill would clarify that the "property" that must be reported by a moving party under CPLR Section 1101 as among the party’s assets, in addition to the party’s other income, is real property owned by the moving party.

In addition, given recent amendments to CPLR 2106 authorizing the use of affirmations in lieu of affidavits for any person in a civil action pursuant to chapter 559 of the Laws of 2023, the bill further amends CPLR 1101 to provide that a party may submit an affirmation when moving for a waiver of costs, fees, and expenses. This change will help make it clear that a party is no longer required to submit a notarized affidavit when making such motion. This should save individuals, many of whom are impecunious, the time, cost, and burden associated with locating a notary.

Add, L 1962, ch 308; amd, L 1966, ch 455, § 2; L 1969, ch 407, § 114; L 1987, ch 312, § 1; L 1992, ch 216, § 10, eff July 1, 1992; L 1994, ch 563, § 3, eff July 26, 1994; L 1999, ch 412, § 1 (Part D), eff Nov 7, 1999; L 2005, ch 3, § 64 (Part A), eff Dec 21, 2005; L 2010, ch 41, § 1, eff April 14, 2010; L 2011, ch 62, § 51 (Part C, Subpart B), eff March 31, 2011; L 2021, ch 322, § 249, effective August 2, 2021; L 2024, ch 589, § 2, effective December 13, 2024.