140.1 General
140.2 Application
140.3 Disposition of motion
140.4 Special procedure where fee is collected from . . .
140.5 Claims in the Court of Claims
140.6 Appendices
This Part shall apply where a Federal, State or local incarcerated person under sentence for conviction of a crime who is seeking to commence a civil action or proceeding, other than a proceeding brought under CPLR article 78 that alleges a failure to correctly award or certify jail time credit due an incarcerated person, brings a motion for permission to proceed as a poor person pursuant to article 11 of the Civil Practice Law and Rules ("CPLR"). For purposes of this Part:
(i) "appropriate correctional official" shall mean the superintendent or other public official in charge of the facility where the incarcerated person is confined and
(ii) "incarcerated person's trust fund account" shall mean an incarcerated person's correctional facility trust fund account or the institutional equivalent thereof.
Historical Note
Sec. filed June 5, 2000 eff. June 1, 2000.
Amended on Nov. 22, 2023
Section 140.2 Application.
(a) As required by subdivision (f) of section 1101 of the CPLR, and in addition to such other papers as may be required by law, such incarcerated person shall complete and file with the court the form affidavit referred to in subdivision (d) of that section along with the summons and complaint or petition or notice of petition or order to show cause. Such affidavit shall be in the form set forth in Appendix A-1 of this Part.
(b) Upon receipt of an incarcerated person's motion, the court may assign an index number to the underlying action or proceeding or, in a court other than Supreme or County Court, such other filing number as is appropriate to the court. The motion shall thereupon be assigned to a judge of the court who, prior to disposition thereof, shall cause to be obtained such information concerning the incarcerated person's trust fund account as is required by paragraph one of subdivision (f) of section 1101 of the CPLR.
Historical Note
Sec. filed June 5, 2000 eff. June 1, 2000.
Amended on Nov. 22, 2023
Section 140.3 Disposition of motion.
(a) Form of order. Upon determining an incarcerated person's motion for permission to proceed as a poor person, the court shall issue an order, which shall be in the form set forth in Appendix A-2 of this Part.
(b) Order granting motion. Where a court grants an incarcerated person's motion for permission to proceed as a poor person, and the court's order requires the incarcerated person to make an initial payment of a portion of the filing fee that is imposed, the incarcerated person may not file a request for judicial intervention in the action or proceeding, nor shall the court report any outstanding fee obligation to the appropriate correctional official, to be collected from the incarcerated person's trust fund account, until such initial payment is fully received by the court. Once such initial payment is fully received by the court, or where the court's order does not require the incarcerated person to make an initial payment, the action or proceeding may go forward as if all fees required therein had been paid and the court shall report such amount of the filing fee as remains unpaid as an outstanding obligation, to be collected from the incarcerated person's trust fund account, to the appropriate correctional official.
(c) Order denying motion. Where a court denies an incarcerated person's motion for permission to proceed as a poor person, the incarcerated person may not file a request for judicial intervention in the action or proceeding until the incarcerated person pays the proper index number or first paper fee, as appropriate, to the court. In the event no such payment is made within 120 days of the date of the order, the action or proceeding shall be dismissed by the court.
Historical Note
Sec. filed June 5, 2000 eff. June 1, 2000.
Amended on Nov. 22, 2023
Section 140.4 Special procedure where fee is collected from a source other than an incarcerated person's trust fund account.
Where:
(i) a court issues an order granting an incarcerated person's motion for permission to proceed as a poor person and reports some or all of the filing fee imposed pursuant to such order to the appropriate correctional official as an outstanding obligation to be collected from the incarcerated person's trust fund account; and
(ii) thereafter the incarcerated person or a person acting on his or her behalf pays the amount of the outstanding obligation to the clerk of the court, the court shall forthwith issue an order directing the appropriate correctional official to cease collection of the obligation and to restore to the incarcerated person's trust fund account any funds theretofore withheld therefrom to satisfy the obligation. Such order shall be in the form set forth in Appendix A-3 of this Part.
Historical Note
Sec. filed June 5, 2000 eff. June 1, 2000.
Amended on Nov. 22, 2023
Section 140.5 Claims in the Court of Claims.
This Part shall not apply where an incarcerated person seeks to commence a claim in the Court of Claims. Such an incarcerated person must comply with the provisions of section 206.5-b of these rules.
Historical Note
Sec. filed June 5, 2000 eff. June 1, 2000.
Amended on Nov. 22, 2023
Section 140.6 Appendices.
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________________COURT ________________COUNTY ________________ x |
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Plaintiff, |
Affidavit in Support of Application Pursuant to CPLR 1101 (Poor Person Status for an Incarcerated Person) INDEX/FILE# DIN# |
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________________ x (ss: County of _____________) |
1. I am the Plaintiff/Petitioner in the above-captioned action/proceeding: I am an incarcerated person under sentence for conviction of a crime incarcerated in (include name and mailing address) _______________________________________ , a federal / state / local correctional facility; and I submit this affidavit in support of my application for poor person status in such proceeding.
2. During the past six months:
[ ] I was not incarcerated at any other federal/state/local correctional facility.
[ ] I was incarcerated in the following federal/state/local correctional facilities) (include name(s) and mailing address(es)) in addition to the facility in which I am now incarcerated:
_________________________________________________
_________________________________________________
3. I currently receive income from the following sources, exclusive of correctional facility wages:
_________________________________________________
_________________________________________________
4. I own the following property (list all real and personal property, including bank accounts and securities in which you have a beneficial interest, other than miscellaneous personal property of nominal value):
| Property: | Value: |
| ____________________ | ____________________ |
| ____________________ | ____________________ |
| ____________________ | ____________________ |
5. I am responsible for payment of the following debts:
| Debt | Amount: |
| ____________________ | ____________________ |
| ____________________ | ____________________ |
| ____________________ | ____________________ |
6. I have no savings, property, assets or income other than as set forth herein.
7. I am unable to pay the costs, fees and expenses necessary to prosecute the above- captioned action/proceeding.
8. There is no other person who has a beneficial interest in the recovery I am seeking in the above-captioned action/proceeding who is able to pay the fees, costs and expenses necessary to its prosecution.
9. The nature of the above-captioned action/proceeding and the facts therein are described in my pleadings and in other papers filed with the court.
10. I have made no prior request for this relief in the above-captioned action/proceeding.
__________________________
(signature)
Sworn to before me this _____ day
of ____________, _____
____________________
Notary Public
I, _______________, incarcerated person number _______________ request and authorize the agency holding me in custody to send to the Clerk of the Court certifies copies of the correctional facility trust fund account statement (or the institutional equivalent) for the past six months.
In the event my application for poor person status in the above-captioned action/proceeding is granted by the Court, I further request and authorize the agency in which I an incarcerated to deduct the amount of any outstanding obligation reported so such agency by the Court pursuant to CPLR 1101(f)(2) from my correctional facility trust fund account (or institutional equivalent) and to disburse such money as instructed by the Court.
This authorization is furnished in connection with the above-captioned action/proceeding, and shall be valid as to any agency into whose custody I may hereafter be transferred.
I UNDERSTAND THAT THE FULL AMOUNT OF THE OUTSTANDING OBLIGATION REFERRED TO HEREIN WILL BE PAID BY AUTOMATIC DEDUCTION FROM MY CORRECTIONAL FACILITY TRUST FUND ACCOUNT EVEN IF MY CASE IS DISMISSED.
__________________________
(signature)
(APPENDIX A-2)
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_________________ COURT _________________ COUNTY _________________ x |
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Plaintiff, |
ORDER Determining Application for Poor Person Status for an Incarcerated Person (CPLR 1101) INDEX/FILE# DIN# NYSID# ORI# |
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Nature of action/proceeding: _____________________, being a federal/state/local incarcerated person under sentence for conviction of a crime and having made application pursuant to CPLR 1101 poor person status in the above-captioned action/proceeding.
It is hereby ORDERED that this application is:
[ ] DENIED, and, as required by section 1101 of the CPLR, all applicable filing fees in the action/proceeding must be paid within 120 days of the date of this order, or else the action/proceeding shall be deemed dismissed without further order of the Court.
[ ] GRANTED, and the applicant/incarcerated person is directed to pay a reduced filing fee of $_____ dollars and he or she shall be liable for no other fees in the action/proceeding before this Court unless a recovery by judgment or by settlement is had in his or her favor in which event the Court may direct him or her to pay out of the recovery all or part of such fees as are hereby forgiven.
It is further ORDERED:
[ ] That, the Court having found that the applicant/incarcerated person can reasonably afford same, the applicant/incarcerated person IS REQUIRED to make an initial payment of $_____ of the reduced filing fee required hereunder; and that, once such initial payment is fully received by the court, the amount of the difference between such initial payment and the reduced filing fee required hereunder, or $_____, shall be assessed as an outstanding obligation of the applicant incarcerated person and reported to the superintendent or other public official in charge of the facility where the applicant/incarcerated person is confined, who shall collect such amount from the applicant/incarcerated person in the same manner as mandatory surcharges are collected pursuant to section 60.35(5) of the Penal Law.
[ ] That, the Court having found that exceptional circumstances render the applicant/incarcerated person unable to pay any filing fee at this time, the applicant/incarcerated person IS NOT REQUIRED to make any initial payment to the Court of a portion of the reduced filing fee required hereunder; and that the full amount of the filing fee required hereunder, or $_____ , shall be reported to the superintendent or other public official in charge of the facility where the applicant/incarcerated person is confined, who shall collect such amount from the applicant/incarcerated person in the same manner as mandatory surcharges are collected pursuant to section 60.35(5) of the Penal Law.
[ ] ____________________________________________
_______________________________________________
_______________________________________________
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Date
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Judge
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(APPENDIX A-3)
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_________________COURT _________________COUNTY _________________ x |
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In the Matter of the Correctional Facility Trust Fund Account of
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ORDER to Rescind Order of Collection of a Civil Filing Fee from an Incarcerated Person's Trust Account INDEX/FILE# ORI# |
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This Court,
Having issued an order dated ___/___/___: (1) granting _________________, an incarcerated person at __________________ (name of Correctional Facility), poor person status in __________________ (name of case); (2) requiring such incarcerated person to pay a filing fee in such case in the amount of $_____ ; and (3) directing the Superintendent or other public official in charge of the aforesaid Correctional Facility to collect some or all of such filing fee from the incarcerated person's Correctional Facility Trust Fund Account or institutional equivalent, and
Now having received notice that the Clerk of this Court has received payment of the filing fee in full directly from the incarcerated person or a person or persons acting on his/her behalf,
It is hereby ORDERED that so much of the aforesaid order directing the Superintendent or other public official in charge of the aforesaid Correctional Facility to collect some or all of such filing fee from the incarcerated person's Correctional Facility Trust Fund Account or institutional equivalent is rescinded, and that any funds heretofore withheld from such Account pursuant to the aforesaid order shall be restored to such Account.
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____________________
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____________________
Date
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Judge
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Historical Note
Amended on Nov. 22, 2023