CIVIL PRACTICE LAW AND RULES, §8018; JUDICIARY LAW, §39(2)(e);
STATE FINANCE LAW, §8(15): A county is entitled to retain
$5.00 of each court index fee of $100.00 collected by a county
clerk pursuant to Civil Practice Law and Rules, §8018(a). The
State must refund to a county the county's $5.00 portion of
each index fee erroneously paid to the State within the
previous three years.
This is in reply to your inquiry of July 10, 1990 concerning a refund request from the Office of Court Administration. Specifically, you have asked whether you may pay a $19,700 refund to a county which amount reflects that portion ($5.00) of each index fee received by the county clerk which should have been retained by the county and not transmitted to the State for the period November, 1987 through November, 1989.
Section 8 of the State Finance Law provides, in part:
The filing fees in question were collected by the county clerk of the county pursuant to section 8018 of the CPLR, which provides that a clerk is entitled to a fee of $100 for the assignment of an index number to an action pending in a court of which he is the clerk. Pursuant to section 39(2)(e) of the Judiciary Law, the county clerks of all counties outside of New York City are required to transmit to the State Commissioner of Taxation and Finance $95 of any such filing fee. While not expressly stated, it is implicit in section 39(2)(e) that the county clerk may retain the remaining $5.00 of each filing fee. Pursuant to section 201 of the County Law, however, the remaining $5.00 of each filing fee is required to be paid by the county clerk to the county.
Since we are advised that the $19,700 in question represents that portion of the filing fees which should have been retained by the county, that amount is in our opinion moneys paid to the State "in excess of the amount prescribed by statute". Therefore, pursuant to the express provisions of section 8(15) of the State Finance Law, any such amounts paid by the county clerk to the State within the last three years may be refunded to the county pursuant to such section. Since all of the amounts in question represent amounts which have erroneously been paid by the county clerk to the State within the last 3 years, it follows that the county is entitled to the $19,700.
July 19, 1990