Opinion
January 23, 1981
Appeal from the Wayne Supreme Court.
Present — Dillon, P.J., Cardamone, Hancock, Jr., Callahan and Schnepp, JJ.
Order unanimously reversed, with costs, and motion granted. Memorandum: In a medical malpractice action arising from a doctor's care of plaintiff who had suffered a severe leg injury in a motorcycle accident, there was a two-week jury trial ending in a verdict of no cause for action. The sole issue is plaintiff's right to appeal this result as a poor person. The trial court entertained the application for such relief and denied it solely upon the ground that the claim was without merit. Plaintiff's indigency is not controverted. CPLR 1101 (subd [a]) provides that "the court in which an action is triable, or to which an appeal has been * * * taken, may grant permission to proceed as a poor person." The section goes on to provide that, in addition to other requirements, the moving party must set forth "sufficient facts so that the merit of his contentions can be ascertained". In this case the trial court weighed the evidence that was before the jury and concluded that it did not "feel there is any merit to her appeal." The trial court misconceived the scope of its discretion on such a motion. Its determination was, in effect, appellate review of the jury verdict, a matter which the trial court should not address. A motion under CPLR 1101 (subd [a]) should be made before the trial court (Jenks v. Murphy, 20 A.D.2d 757; Eagle Contrs. of Utica v Black, 5 A.D.2d 954) which should merely satisfy itself that the appeal is not frivolous or, stated another way, that the appeal has arguable merit.