Opinion 90-46

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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

COUNTY CLERK -- Fees (refund by State of county's portion of index fees)
FEES -- Court Fees (refund by State of county's portion of index fees)

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 Comptroller shall:
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15. Except where provisions for refund are otherwise specifically provided in any other law, general or special, upon the certification of the head of any state department or agency, and after audit and approval by him refund within three years from the date of payment, any fee or portion of a fee or other moneys paid pursuant to any of the statutes of the state of New York, in any case in which:
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d. the payment made is in excess of the amount prescribed by statute, ...
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Such refund shall be paid from moneys appropriated for such purpose or from revenues in the custody of said department or agency, derived from fees collected by said department or agency.

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
Dave DeStefano, Audit Director
Bureau of Management Audit