BILL NUMBER:S713A

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 OF THE BILL:

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 ox 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. This subdivision shall not
apply to civil actions against local governments.
              

§ 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 EAJA
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Services, 532 US 598), have effectively repealed the EAJA.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 2001-2008
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:

2011-2012: A.3264/S.5131
2009-2010: A.7395/5.4534.

FISCAL IMPLICATIONS:

Yet to be determined.

EFFECTIVE DATE:

This act shall take effect immediately.