           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

446
CA 11-02452
PRESENT: CENTRA, J.P., FAHEY, CARNI, WHALEN, AND MARTOCHE, JJ.


DONNELL JEFFERSON, PLAINTIFF-APPELLANT,

                     V                             MEMORANDUM AND ORDER

JOSHUA STUBBE, DEFENDANT-RESPONDENT.


DONNELL JEFFERSON, PLAINTIFF-APPELLANT PRO SE.

WILLIAM K. TAYLOR, COUNTY ATTORNEY, ROCHESTER (KRISTINE M. CAHILL OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Monroe County (Elma A.
Bellini, J.), entered August 3, 2011. The order denied the motion of
plaintiff for permission to proceed as a poor person.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking declaratory
and other relief based on the alleged negligence of defendant, his
former attorney in a criminal matter. Contrary to plaintiff’s
contention, Supreme Court did not abuse its discretion in denying his
motion for permission to proceed as a poor person pursuant to CPLR
1101 (see generally Matter of Young v Monroe County Clerk’s Off., 46
AD3d 1379, 1380). Although we agree with plaintiff that he
established that he is unable to pay the costs, fees and expenses
necessary to prosecute the action (see CPLR 1101 [a]), we conclude
that the action does not have “arguable merit” (Nicholas v Reason, 79
AD2d 1113, 1113; cf. Popal v Slovis, 82 AD3d 1670, 1671, lv dismissed
17 NY3d 842; Young, 46 AD3d at 1380).




Entered:   June 7, 2013                          Frances E. Cafarell
                                                 Clerk of the Court
