Expands the definition of "prevailing party" for purposes of counsel fees and expenses in certain actions against the state

1 Co-sponsor

• Joseph P. Addabbo Jr.

BILL NUMBER:S5131

Title of bill

An act to amend the civil practice law and rules, in relation to the definition of "prevailing party" for purposes of counsel fees and expenses in certain actions against the state

Purpose

Clarifies the definition of "prevailing party" for purposes of counsel fees and expenses in certain actions against the state authorized by the Equal Access to Justice Act of 1989.

Summary of specific provisions

§ 1- Subdivision (f) of section 8602 of the Civil Practice Law and Rules, as added by Chapter 770 of the Laws of 1989, is amended to read as follows: (f) "prevailing party" means plaintiff or petitioner in the civil action against the state who prevails in whole or in substantial part where such party and the state prevail upon separate issues. The term "prevailing party" shall include, in addition to a party who substantially prevails through a judicial or administrative judgment or order, or an enforceable written agreement, a party whose pursuit of a non-frivolous claim was a catalyst for a voluntary or unilateral change in the position by the opposing party that provides any significant part of the relief sought.

§ 2- Effective date.

Existing law

Current law authorizes an award of attorney's fees to litigants, including small businesses, not-for-profit organizations and individuals of modest means, who have been wronged by the unjustified actions of New York State agencies.

Justification

New York's Equal Access to Justice Act (EAJA) was enacted in 1989 and was patterned after Federal legislation enacted in 1976. The BAJA authorizes an award of attorney's fees to litigants, including small businesses, not-for-profit organizations and individuals of modest means, who have been wronged by the unjustified actions of New York State agencies.

However, recent court decision, beginning with a U.S. Supreme Court ruling in 2001 (Buckhannon v. West Virginia Dept. of Health and Human Services, 532 US 598), have effectively repealed the EAJA. Simply stated, the courts no longer find these litigants to be the "prevailing party" entitled to attorney's fees where the case settles at any time prior to a final judgment. In fact, for the 2007-2008 state fiscal year no attorney's fees were paid in these types of cases. As a result of this failure to award fees as contemplated by

the EAJA, attorneys are increasingly unwilling to take on these matters.

Ultimately, the absence of attorneys willing to bring such actions against state agencies negates the efficiency of the Equal Access to Justice Act in tempering overarching state action and allowing small businesses, not-for-profit groups and people of modest means to fight back.

This new legislation would remedy this problem by amending New York State law to mirror provisions in the New York City Human Rights Law and a 2008 U.S. Senate bill to award attorney's fees in actions where the pursuit of litigation has acted as a "catalyst for a voluntary or unilateral change in position by the opposing party (i.e. the government agencies) that provides any significant part of the relief sought."

Prior legislative history

2009-2010: A.7395/S.4534

Fiscal implications

Yet to be determined.

Effective date

This act shall take effect immediately.