Opinion 88-38


This opinion represents the views of the Office of the State Comptroller at the time it was rendered. The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.


FEES -- Court Fees (filing fees on appeals to Appellate Divisions and Court of Appeals)

CIVIL PRACTICE LAW AND RULES, §8022: Counties and other municipalities, including the City of New York, are not exempt from the filing fees imposed in connection with appeals to the Appellate Divisions and the Court of Appeals.

We have been asked for our opinion on the question of whether counties and other municipalities, including the City of New York, are exempt from the filing fees imposed in connection with appeals to the Appellate Divisions and the Court of Appeals.

In our opinion, municipalities are not exempt from court filing fees unless some statute expressly so provides (See 1983 Opns St Comp 83-20, p 22; 28 Opns St Comp, 1972, p 18). In this regard, we note that section 8022 of the Civil Practice Law and Rules (CPLR) provides:

"The clerks of the appellate divisions of the supreme court and the clerk of the court of appeals are entitled, upon the filing of a record on a civil appeal or a statement in lieu of record on a civil appeal, as required by rule 5530 of this chapter, to a fee of two hundred dollars, payable in advance."

Clearly, nothing in this statute exempts municipalities from the fees it imposes. Therefore, unless some other statute provides for an exemption from this fee, municipalities would not be exempt from the fees imposed by section 8022.

The only statutes which might arguably exempt municipalities from the fee imposed by CPLR, §8022 are sections 8017(a) and 8019(d) of the CPLR. We will, therefore, consider each of these statutes to determine whether they provide any exemption from the fees imposed by section 8022.

Subdivision (a) of section 8017 of the CPLR provides:

"Notwithstanding any other provision of this article or any other general, special or local law relating to fees of clerks, no clerk shall charge or collect a fee from the state, or an agency or officer thereof, for any service rendered in an action in which any of them is involved, nor shall any clerk charge or collect a fee for filing, recording or indexing any paper, document, map or proceeding filed, recorded or indexed for the county, or an agency or officer thereof acting in an official capacity, nor for furnishing a transcript, certification or copy of any paper, document, map or proceeding to be used for official purposes."

In 1965, the Attorney General considered whether CPLR, §8017(a) exempted counties from paying filing fees to clerks in other counties. The Attorney General opined that the provisions of section 8017 apply only "to the county served by the county clerk in which the papers were filed" (1965 Atty Gen [Inf Opns] 151). The Attorney General noted that the language of the statute supported this conclusion. Specifically, he opined that the Legislature, by using the word "the" before the word "county", intended the exemption to apply only to the county in whose clerk's office the papers were filed. He went on to state that if a broader application of the exemption was intended, the Legislature could have inserted the word "a" or "any" before the word "county".

Thus, the Attorney General, in effect, concluded that the exemption created by section 8017 applied only to fees paid by a county to the clerk of that county. We believe that the reasoning of the 1965 Attorney General's Opinion is correct and that his interpretation is consistent with the plain language of section 8017. In a situation where the words of a statute are clear and unambiguous, resort to other means of interpretation is impermissible (McKinney's Consolidated Laws of NY, Book 1, Statutes §76). Further, we believe the rationale of this opinion is applicable to the present situation since the fees imposed by section 8022 are not paid to any county clerk, but rather are paid to the clerks of the Appellate Divisions and the Court of Appeals. Therefore, it is our opinion that section 8017 does not provide any municipality with an exemption from the fees imposed by section 8022.

Similarly, we do not believe section 8019 provides any such exemption. Section 8019(d) provides that the State and the City of New York shall be exempt from any fees collected by county clerks in the City. Since section 8019(d) only makes reference to fees collected by county clerks of counties in the City of New York, that section also has no applicability to fees imposed by CPLR, §8022, which are collected by the clerks of the Appellate Divisions and the Court of Appeals.

As a result, since there is no statute exempting counties, or other municipalities, from the fees imposed by section 8022, it is our opinion that counties and other municipalities are not exempt from the fees imposed pursuant to CPLR, §8022. In reaching this conclusion, we are not unmindful of the argument raised by New York City. Specifically, the City argues that section 8022, which was enacted as part of Chapter 825 of the Laws of 1987, was intended to establish a comprehensive program to assist local governments in the financing and improvement of court facilities in New York State. They note that the mechanism to achieve this goal was to increase certain existing fees, impose new fees, and then utilize these revenues to pay increased aid to local governments to finance the construction and rehabilitation of court facilities. The City argues, in effect, that it makes little sense to interpret the statute to impose a fee on a municipality, where the fee will then be transmitted back to the municipality.

We do not find this argument persuasive, since it is based on an incorrect premise. The fees paid by a municipality pursuant to section 8022 will not be paid back to that municipality. Rather, the fees paid by a municipality pursuant to that section, together with the fees paid by all other appellants in the Appellate Divisions and the Court of Appeals, will be paid to the various municipalities in the State in accordance with the statutory formula contained in section 54-j of the State Finance Law.(1)  Therefore, we do not believe that the argument put forth by New York City provides any basis to deviate from the clear language of the statute which, as noted, does not provide municipalities with any exemption from the fees imposed by section 8022.

In summary, it is our opinion that: (i) nothing in the CPLR expressly grants an exemption to counties from the fees imposed by CPLR §8022 and (ii) the legislative intent of Chapter 825 of the Laws of 1987 does not require a construction of section 8022 creating an exemption not expressly provided for by such statute. As a result, it is our opinion that neither New York City nor any other municipality is exempt from the fees imposed by section 8022.

July 22, 1988
Michael Colodner, Counsel
0ffice of Court Administration


1. In effect, the Legislature appears to have adopted a system of user fees which are charged to all users of court facilities to provide State aid to local governments to renovate such facilities. In our opinion the purpose and intent of this statutory scheme is not inconsistent with the imposition of such user-like charges on local governments. In this regard we note that local governments, which are generally exempt from taxation, are exempt from user charges only where a statute specifically provides for such an exemption.