OPINION OF THE COURT
On January 10, 2005, claimant filed a pro se claim seeking to recover money damages for what she defined as intentional tort and fraud arising from her interactions with the New York State Division of Veterans’ Affairs. Attached to her claim was a completed “Affidavit in Support of Application Pursuant to CPLR 1101 (d),” by which she requested waiver of the Court of Claims’ $50 filing fee. On January 21, 2005, the court issued an order denying the request for waiver or reduction of the filing fee and directing claimant to pay the fee within 120 days of the date of the order. The order further stated that if the fee was not paid within that time period, the clerk of the court was to close the file without further judicial action.
Claimant did not pay the filing fee, but two days before expiration of the 120-day grace period, she commenced the instant motion. She states that the relief she is seeking by this motion is “relief from mistake of law or fact,” citing CPLR 3005. That statute, however, has no relevance to this motion or to the underlying claim.
On a motion for leave to reargue a prior order, a party has the opportunity to establish that the court overlooked or misapprehended the relevant facts or misapplied a controlling principle of law. On a motion for leave to renew, a party has the
For that reason, and with deference to her pro se status, the court grants leave to consider her application anew. On this motion, claimant has both presented argument in support of the relief sought and submitted one piece of documentary evidence. Consequently, the motion will be deemed one for both reargument and renewal and, again in light of her pro se status, the court will not require that she “identify separately and support separately each item of relief sought” (CPLR 2221 [i]).
Claimant makes several, apparently novel arguments in support of her contention that the court erred in denying her application for a waiver of the filing fee. She states that she had been granted permission to proceed in forma pauperis in a federal action in the United States District Court for the Northern District of Alabama and provides a copy of that order (Frasier affidavit, 2d exhibit), implying that what is good for one court should be good enough for another. She also argues that because the Court of Claims has no “published universal income standard” to establish who is entitled to poor person relief, it may not deny such status to anyone {id. HIT 5, 8). The majority of claimant’s assets cannot rightfully be considered by the court, she contends, because they consist of “[disability and work relief income” {id. 11 4) or are the assets of a disabled, incapacitated person {id. 1Í1I 6, 7). Finally, claimant argues that denial of poor person status in connection with this action would be unduly burdensome because she intends to file “other spawned and related” cases in other courts and against other parties and, if denied permission to proceed as a poor person, she would not be able to pay filing fees in all of those courts {id. 119).
Although she has presented arguments and evidence in support of the motion, claimant has nevertheless omitted one of the
Claimant is a veteran who states that she is disabled as a result of exposure to PCBs while stationed at Fort McClellan in Anniston, Alabama.
To obtain the services of a veterans’ service organization in prosecuting her disability claim, claimant was required to sign a Veterans’ Administration form, Form 21-22, entitled “Appointment of Veterans Service Organization as Claimant’s Representative.” This form states on its face that it is a “power of attorney.”
“a restraining order to stop the state of New York from operating a veterans claims law office without licensed lawyers; and is also seeking a court order requiring the Division of Veterans[’] Affairs to provide the Claimant with a licensed attorney for her disability case at the VA without delay; or in the alternative, is seeking the full value of the VA disability claim which is approximately $500,000 in compensation for her property loss” (claim at 12).
Claimant refers to title 38 of the Code of Federal Regulations, asserts that it governs the “practice of law that is mandated by the VA agency for all veterans disabilities claims,” and argues that it required all veterans to be represented by lawyers (claim 1i 3). In fact, section 14.631 of title 38, which provides for the veterans’ service organizations to be designated as a veteran’s representative and serves as authority for Form 21-22 and other forms, makes it clear that a veteran may be represented by such a local service organization, by a private individual, or by an attorney. Subdivision (f) (2) of that section even provides that “[a]n organization named in a power of attorney . . . may employ an attorney to represent a claimant in a particular claim” (emphasis supplied). There is likewise no provision in New York statutes that requires the Division of Veterans’ Affairs or any local veterans’ service organization to provide a lawyer to veterans who are pursuing their claims.
The claim, therefore, is without merit. In addition, this court would not have authority to issue the type of injunctive relief that claimant is seeking, even if her basis for seeking relief was meritorious. The Court of Claims does not have subject matter
CPLR 1101 does not expressly provide for the options available to the court if, on the basis of the review of merit conducted to determine if poor person relief should be granted, it determines that the underlying action is wholly lacking in merit. Certainly, the court may deny poor person relief, for otherwise requiring a review of merit would be meaningless (see Matter of Joseph,
In Matter of Joseph (
This contrasts with federal practice, where courts are not only required to review the merit of any action in which the litigant seeks to obtain poor person relief (referred to as in forma pauperis in federal practice), but they are also required to dismiss such an action if it is determined to be frivolous or if it fails to state a cause of action. 28 USC § 1915, which governs proceedings in forma pauperis, provides, in relevant part, as follows:
*503 “(e) ... (2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that—
“(A) the allegation of poverty is untrue; or
“(B) the action or appeal—
“(i) is frivolous or malicious;
“(ii) fails to state a claim on which relief may be granted; or
“(iii) seeks monetary relief against a defendant who is immune from such relief.”
This, of course, results in a judicial “weeding out” of nonmeritorious claims early in the proceeding and is a screening mechanism that does not occur in other actions where no poor person relief is requested. In support of this function and the result that some actions will be dismissed at a very preliminary stage, it has been pointed out that the goal of providing equal access to the courts for indigent persons is undercut or distorted when such litigants have, in essence, nothing to lose by commencing a lawsuit: “Since non-indigents routinely must decide if their claim is worth the costs of litigation, it is not unfair to force IFP [in forma pauperis] plaintiffs to make comparable assessments” (Mary Van Vort, Controlling and Deterring Frivolous In Forma Pauperis Complaints, 55 Fordham L Rev 1165, 1190 [May 1987]; see also Denton v Hernandez,
Prior to 1995, the federal statute provided only that a court “may” dismiss an action and then only if the allegations of poverty were untrue or if the action was “frivolous or malicious.” (28 USC § 1915 [former (d)].) The standard for determining frivolity was lower than the standard applied when a complaint was subjected to a motion to dismiss for failure to state a cause of action (Fed Rules Civ Pro rule 12 [b] [6]). In 1989, the United States Supreme Court held that when a review of merit was conducted as part of a section 1915 application, dismissal could occur only when — considering both the factual allegations and legal conclusions contained in the pleading — the complaint lacked “an arguable basis either in law or in fact” (Neitzke v Williams,
Section 1915 was amended to its present form by the Prison Litigation Reform Act (Pub L 104-134, § 804 [a] [5], 110 US
In New York practice, where the relevant statute (CPLR 1101) does not expressly give courts the authority to dismiss even frivolous actions, there is also scant authority for such dismissals in case law, no matter what the reason. In isolated instances, sua sponte dismissals have been upheld where the court in question lacked jurisdiction to adjudicate the dispute (see e.g. Matter of Eaton Assoc. v Egan,
As a general rule, however, such dismissals are discouraged and ultimately invalidated (see Matter of Fry v Village of Tarrytown,
Because the court concludes that there is no merit to claimant’s contentions, it will adhere to the original determination that she is not entitled to proceed as a poor person pursuant to CPLR 1101. Claimant may, if she wishes to do so, continue prosecution of the action by paying the requisite filing fee within 30 days from the date this decision and order is file-stamped. If claimant fails to pay the fee within that time, the clerk of the court is directed to close the file without further judicial action.
Claimant’s motion, which is deemed a motion to reargue and to renew, is granted and, upon reconsideration, the court adheres to its original determination to deny claimant’s application to proceed as a poor person.
Notes
. Defendant’s affirmation was considered only to the extent it opposes claimant’s application to renew or reargue. The remainder of the affirmation addresses motions which have not been calendared because the filing fee for the claim has not been paid.
. CPLR 3005 relates to the doctrine of voluntary payment, whereby money paid under mistake of material fact may be recovered, unless such recovery is inequitable (Kirby McInerney & Squire, LLP v Hall Charne Burce & Olson, S.C.,
. Subdivision (a) of CPLR 1101 states:
“The moving party shall file an affidavit setting forth the amount and sources of his or her income and listing his or her property with its value; that he or she is unable 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” (emphasis supplied).
. Claimant purports to bring this claim “as part of the Fort McClellan veterans class,” a group of over seven million veterans who may have been disabled by such exposure.
. A sample of this form is attached to the claim.