T.A.M., Plaintiff, v. A.M.M., Defendant. (2026)

The following documents, numbered 1 to 4, were considered in connection with Plaintiff's motion, dated August 27, 2026 (hereinafter "Motion Sequence No. 1"), seeking the entry of an order, inter alia, for the following:

1. Granting a waiver of costs, fees and expenses.

PAPERS DOC. NO.

Notice of Motion/

Application for Waiver of Court Costs/Fees/Expenses/

Proposed Order

Affirmation of Service 1-4

Relevant Factual and Procedural Background

On August 27, 2026, Plaintiff commenced this matrimonial action with the filing of a Summons and Complaint (hereinafter collectively "Complaint"),¹ requesting a dissolution of the parties' marriage pursuant to New York State Domestic Relations Law § 170(7) asserting that the parties' relationship had irretrievably broken down for a period in excess of six months, and seeking other ancillary relief.

Simultaneously with the filing of the Complaint, Plaintiff filed a request for judicial intervention with Motion Sequence No. 1, inclusive of the following documents: (1) notice of motion (hereinafter "Notice of Motion"); (2) Application for Waiver of Court Costs/Fees/Expenses (hereinafter "Application"); (3) affirmation of service (hereinafter "Affirmation of Service"); and, (4) proposed order,² seeking the above-referenced relief.

No further submissions were made pertaining to Motion Sequence No. 1.

Legal Analysis

Article 17 § 1 of the New York State Constitution sets forth a mandate for the State to provide assistance to individuals of insufficient means, "The aid, care and support of the needy are public concerns and shall be provided by the state and by such of its subdivisions, and in such manner and by such means, as the legislature may from time to time determine" (see NY Const. Art. XVII § 1). In the implementation of this mandate, the New York State Legislature may determine which individuals are to be afforded financial assistance and how that financial assistance will be provided (see Aliessa ex rel. Fayed v. Novello, 96 NY2d 418 [2001]).

In the context of those asserting they are of insufficient means, seeking to utilize the New York State Courts, our Legislature has adopted several statutes affording the opportunity to obtain support including the ability to apply for a waiver of costs, fees, and expenses under Article 11 of the New York State Civil Practice Law and Rules (hereinafter "CPLR").

CPLR § 1101(a) provides individuals asserting they are of insufficient means to obtain a fee waiver based on their lack of financial capabilities:

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

(a) Upon motion of any party, the court in which an action is triable, or to which an appeal has been or will be taken, may waive the costs, fees, and expenses if such party has insufficient means to pay such costs, fees, and expenses. Where a motion to waive costs, fees, and expenses is made in the court in which an appeal has been or will be taken, such court shall hear such motion on the merits and shall not remand such motion to the trial court for consideration. The moving party shall file an affidavit or affirmation setting forth the amount and sources of such party's income and assets and listing any real property owned by such party with its value; that such party lacks sufficient means to pay the costs, fees, and expenses necessary to prosecute or defend the action or to maintain or respond to the appeal; the nature of the action; sufficient facts so that the merit of the contentions can be ascertained; and whether any other person is beneficially interested in any recovery sought and, if so, whether every such person is unable to pay such costs, fees, and expenses. An executor, administrator, or other representative may move for a waiver of costs, fees, and expenses on behalf of a deceased, infant, or incompetent person."

The Court of Appeals has held that granting an application for a litigant to proceed as a person of insufficient means lies within the sound discretion of the trial court (see Smith v. Smith, 2 NY2d 120 [1956]). As artfully stated in one trial court decision, the movant must assist the reviewing court by providing adequate information as required by statute for a determination to be made which both ensures a litigant's access to justice while preventing the unnecessary expenditure of public funds:

"For though where the interests of justice so requires the relief to prosecute an action as a poor person should be granted, however, the court is not required to give pro forma approval to any relief which requires the expedition of public funds and adequate facts must be shown in the moving papers as required by s 1101 of the Civil Practice Law and Rules prior to granting said relief.

* * *

Though the Court has a responsibility to be certain that adequate inquiry is made in matters relating to the expenditure of public funds, it also has an equal responsibility to be certain that the accessibility to the courts is not prevented by a person's lack of funds. Therefore, regardless of practical or policy problems, it is essential that all the parties assist the court in arriving at a proper determination by the submission of adequate moving papers, otherwise, it may become necessary to set these matters down for a hearing for purposes of taking testimony. Needless to say this procedure should, if possible, be avoided as it adds one more burdensome task to the case load of the court and places the court in the undesirable position of assuming to some extent the role of advocate as well as judge. Nor should a person have to be shorn of all human dignity in seeking and obtaining such relief when justified" (Lancer v. Lancer, 70 Misc 2d 1045 [Sup Ct Nassau 1972]; see also Sundt v. New York State Elec. & Gas Corp., 92 AD2d 722 [4th Dept 1983] ["In determining whether a party should be afforded poor person status, a court should completely examine the party's overall financial situation"]).

When presented with an application for relief pursuant to CPLR § 1101(a), if the reviewing court determines that a fee waiver is appropriate, pursuant to CPLR § 1102, the individual found to have insufficient funds is entitled to the possible appointment of legal counsel, court transcripts without cost, and a wavier of court fees/costs. However, CPLR § 1102 expresses a clear legislative intent for the recovery of these fees in the event the person granted such relief later recovers funds from the litigation at issue:

"(d) Costs and fees. Where a court grants a motion pursuant to subdivision (a) of section one thousand one hundred one of this article, the moving party shall not be liable for the payment of any costs or fees unless a recovery by judgment or by settlement is had in such moving party's favor, in which event the court may direct such party to pay out of the recovery all or part of the costs and fees, a reasonable sum for the services and expenses of any attorney assigned to such party and any sum expended by the county or city under subdivision (b) of this section" [emphasis added].

This section works in concert with CPLR § 1103 which requires that in any actions wherein a litigant is granted the status of a person of insufficient means and afforded the requested relief under CPLR § 1102, the court is duty bound to ensure (by way of directive in a court determination pertaining to the recovery of funds to the litigant or prior to accepting a stipulation that has the same effect) that any funds payable to said litigant are held by the court clerk prior to distribution so that a determination may be made as to possible allocation of those funds to the county or city who paid them on behalf of the litigant:

"Where a court grants a motion pursuant to subdivision (a) of section one thousand one hundred one of this article, recovery by judgment or by settlement had in favor of the moving party shall be paid to the clerk of the court in which the order determining the motion was entered, to await distribution pursuant to court order. [emphasis added]"³ (see also Estate of Sanchez, 180 WL 790491 (Surrogate Ct NY Cty 1980] ["Accordingly, the application is granted to the extent that petitioner may be permitted to initially file the petition for limited letters of administration without the payment of any filing fee [CPLR 1101]. However, this court must be as stringent in protecting the rights of the taxpayers as in allowing the fruits of their labors to be used to aid the less fortunate poor. Therefore, should the wrongful death action result in any recovery, the filing fees which have been initially waived by this court shall be then paid from the proceeds of the recovery before any distribution from such, a recovery is made to decedent's distributes" (see CPLR §§ 1102(d), 1103]); State ex rel. Rowlee v. Rowlee, 62 Misc 2d 64 [Sup Ct Onondoga Cnty 1970]).

While Article 11 of the CPLR affords the reviewing court discretion as to what extent, if any, funds recovered by a person designated as being of insufficient means will be required to distribute these funds to the city or county which has paid that litigant's litigation expenses, it is without question that the city or county which is called upon to pay those fees  ⁴ is interested in both the initial application for relief pursuant to CPLR §§ 1101 and 1102 and if granted, possible distribution of funds recovered by that litigant pursuant to CPLR § 1103.

Accordingly, absent certain exceptions, following an action being commenced if a movant seeks relief pursuant to CPLR § 1101(c), requires that notice of the motion be provided to any other parties and the attorney of the city or county wherein the action was commenced:

"Notice. Except as provided in subdivisions (d) and (e) of this section, if an action has already been commenced, notice of the motion shall be served on all parties, and notice shall also be given to the county attorney in the county in which the action is triable or the corporation counsel if the action is triable in the city of New York" (see also Application of Southern Teir Legal Services, 100 Misc 2d 1068 [Sup Ct Steuben Cnty 1979]).

In the event such notice is not provided, the motion must be denied (see Standley v. Property Clerk of Police Dept of Town of Ramapo, 63 AD2d 970 [2d Dept 1978] ["The denial of the application for leave to proceed as a poor person was proper in view of petitioner's failure to serve the County Attorney of Rockland County. Service upon the District Attorney is not sufficient (see CPLR § 1101, subd. (c)")]; see also Senor v. Behrle, 63 AD3d 1454 [3d Dept [3d Dept 2009]; Sebastiano v. State, 92 AD2d 966, [3d Dept 1983]). The rationale behind the statutory mandate that the city/county attorney be given notice of such an application is that they be afforded due process as to such motion prior to the city/county being required to expend funds (see Smith v. Smith, 2 NY2d 120 [1956]), as such city/county attorneys may contest a litigant's asserted status as a person of insufficient means (see Beckett v. Beckett, 133 AD2d 968 [3d Dept 1987]).

Here, Plaintiff commenced this action with the filing of the Complaint and simultaneously filed Motion Sequence No. 1 but failed to provide notice to either the Defendant or the Westchester County Attorney. While Plaintiff filed the Affirmation of Service if both fails to identify any individuals allegedly served and is unsigned in violation of 22 NYCRR § 130-1.1a, requiring that it be disregarded even if the names of the individuals required to be served were included therein.⁵ This is unfortunate as the Plaintiff movant was provided instructions to serve Defendant and the Westchester County Attorney in the form Notice of Motion and form Application. Included in the Notice of Motion is the following instructions:

"This notice of motion informs all parties in this case that you are asking the court to waive the court costs, fees, and expenses. Your motion must have a court date (return date). Some courts allow you to choose your own court date, others assign a court date for you. Please contact the court for their court date requirements. For more information on how to make a motion, visit:

https://nycourts.gov/courthelp/goingtocourt/motionsOSC.shtml.

Use this form only if the case has already been started. (A case is started when the first papers are filed with the court, such as Summons and Complaint, Summons with Notice, Notice of Petition, Petition, or Order to Show Cause, and the court has assigned an index/file number to the case.) You do not need this form if you are starting a new case. If the case has already been started, you must serve a copy of the following papers on all parties in this case: 1. Notice of Motion to Waive Court Costs, Fees and Expenses [UCS-FW2]; 2. Application to Waive Court Costs, Fees and Expenses [UCS=FW1]; and 3. Supporting papers, if any.

If the court is in New York City — Bronx, Kings (Brooklyn), New York (Manhattan, Queens, or Richmond (Staten Island) — you must also serve the Corporation Counsel's Office. If the court is outside New York City, you must also serve the County Attorneys' Office. You must file your original papers and proof of service with the court. You may use the Affirmation of Service: Motion to Waive Court Costs, Fees, and Expenses [UCS-FW3] form to provide proof of service. For more information on how to serve legal papers, visit:

https://nycourts.gov/CourtHelp/GoingToCourt/service.shtml."

Included in the Application is the following instructions in form paragraph 13 in the event the litigant completing the form responds in the affirmative that they have commenced the subject litigation:

"If yes, you must:

• Serve this Application to Waive Court Costs, Fees, and Expenses [UCS-FW1] together with a Notice of Motion [UCS-FW2] on the:

• Other parties in the case

• Corporation Counsel (if filed in NYC)

• County Attorney (if filed outside of NYC)

• File an Affirmation of Service [UCS-FW3] with the court"

Despite these instructions being included in the very forms filed by Plaintiff, they were not adhered to as this Court was not furnished with proper proof of service of Motion Sequence No. 1 on either Defendant or the Westchester County Attorney in violation of CPLR § 1101(c), thereby preventing same from engaging in their rightful due process to oppose the relief requested and requiring this Court to deny the requested relief without prejudice.

Accordingly, it is hereby

ORDERED that Motion Sequence No. 1 is hereby denied without prejudice; and it is further

ORDERED that a preliminary conference shall be held on September 29, 2026 at 9:00 a.m., wherein all parties and counsel shall appear in person before the undersigned; and it is further

ORDERED that by September 18, 2026, Plaintiff's counsel shall serve a copy of this Decision and Order with Notice of Entry by NYSCEF Filing, and by that date shall file proof of service with the Court; and it is further

ORDERED that any relief requested not expressly granted herein is denied.

The foregoing constitutes the Decision and Order of the Court.

Dated: September 16, 2026

White Plains, New York

ENTER:

Hon. James L. Hyer, J.S.C.

FOOTNOTES

1.    See, NYSCEF Doc. No. 1.

2.    See, NYSCEF Doc. Nos. 2-6.

3.   Note: See, 2nd Report Leg. Doc. (1958) No. 13, p. 393. (Editor's Notes: "The Second Report to the Legislature states that this section replaces the last two paragraphs of § 1493 of the civil practice act. The provisions of these paragraphs are too inelastic; for example, when the recovery is of property necessary for the poor person or his family it may be inappropriate for the court to order that costs be paid out of the recovery. Under this section the eventual distribution of any recovery in favor of a poor person is left to the discretion of a court. The requirement that the recovery be paid into court assures the safety of the property until the court directs final distribution. The word "recovery" includes amounts received as a settlement and as costs.")

4.    See, Deason v. Deason, 32 NY2d 93 [1973] [In the context of matrimonial litigation, the Court of Appeals held that if granted the status of a person of insufficient means a litigant's expenses are to be paid by the local government being the city or county wherein the litigation is commenced]; New York State County Law Article 18-B; see also, New York State Executive Law § 832.

5.    See, 22 NYCRR § 130-1.1a, (a) Signature. Every pleading, written motion, and other paper, served on another party or filed or submitted to the court shall be signed by an attorney, or by a party if the party is not represented by an attorney, with the name of the attorney or party clearly printed or typed directly below the signature. Absent good cause shown, the court shall strike any unsigned paper if the omission of the signature is not corrected promptly after being called to the attention of the attorney or party."

James L. Hyer, J.