
    In the Matter of Christopher Young, Appellant, v Monroe County Clerk’s Office et al., Respondents.
    [848 NYS2d 803]
   Appeal, by permission of the Appellate Division of the Supreme Court in the Fourth Judicial Department, from an order of the Supreme Court, Monroe County (John J. Ark, J.), dated November 27, 2006 in a proceeding pursuant to CPLR article 78. The order, among other things, denied petitioner’s motion for permission to proceed as a poor person.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is granted and the petition is reinstated.

Memorandum: Petitioner appeals from an order denying his motion for permission to proceed as a poor person in a CPLR article 78 proceeding and deeming the “action” dismissed in the event that petitioner did not pay all applicable filing fees within 120 days of the filing of the order (see CPLR 1101 [a]). In denying the motion, Supreme Court noted that it had reviewed petitioner’s prison trust fund account statement. The record establishes that petitioner has a monthly income of $25 and has no assets. Furthermore, petitioner alleged in his CPLR article 78 petition that respondents failed or refused to provide him with a copy of an exhibit from his 1994 trial in response to his request pursuant to the Freedom of Information Law (Public Officers Law art 6), and we conclude that petitioner’s allegation “is not frivolous or, stated another way, . . . has arguable merit” (Nicholas v Reason, 79 AD2d 1113 [1981]; see Bridges v University of Rochester [Strong Mem. Hosp.], 97 AD2d 942 [1983]). Although the determination whether to grant permission to proceed as a poor person lies within the sound discretion of the trial court (see Smith v Smith, 2 NY2d 120, 123 [1956]; Beckett v Beckett, 133 AD2d 968, 969 [1987], lv dismissed 71 NY2d 890 [1988]; Bridges, 97 AD2d 942 [1983]), we conclude under the circumstances presented herein that the court abused its discretion in denying the motion. Present — Scudder, P.J., Hurlbutt, Gorski, Centra and Pine, JJ.  