Beckett v. Beckett

Appeal from an order of the Supreme Court (Doran, J.), entered December 9, 1986 in Saratoga County, which denied plaintiffs motion to proceed as a poor person.

Approximately three months after being transferred by the Commissioner of Correctional Services to a correctional facility in Saratoga County, plaintiff commenced a divorce action against defendant and moved to proceed as a poor person. Although no evidence was presented indicating that either

Initially, we note that determination of a motion to proceed as a poor person is within the sound discretion of the court considering the motion (see, Smith v Smith, 2 NY2d 120 , 123; 21 Carmody-Wait 2d, NY Prac § 127:20, at 333-334). It is clear that "residence” is not generally synonymous with "domicile” and that it is not necessary to show an intent to make a place a permanent home in order to establish residence there (Matter of Newcomb, 192 NY 238 , 250; see, Antone v General Motors Corp., 64 NY2d 20 , 30). Mere physical presence, however, is not necessarily sufficient to establish residence (see, e.g., Siegfried v Siegfried, 92 AD2d 916 , Katz v Siroty, 62 AD2d 1011 ). Here, plaintiff was a resident of Nassau County prior to his incarceration. His current presence in Saratoga County is not the result of a voluntary decision on his part. He is there at the discretion of the Commissioner and can be involuntarily transferred to a facility in another county at any time (see, Correction Law § 23; Matter of Cole v Smith, 84 AD2d 942 , appeal dismissed 55 NY2d 877 ). We conclude that Supreme Court did not abuse its discretion in determining that plaintiff failed to establish that he was a resident of Saratoga County for purposes of proceeding as a poor person.

Order affirmed, without costs. Mahoney, P. J., Casey, Weiss, Mikoll and Harvey, JJ., concur.