The New York State Senate

                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  8184

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                               May 7, 2009
                               ___________

Introduced  by  M. of A. DINOWITZ, WEINSTEIN -- (at request of the Divi-
  sion of Human Rights) -- read once and referred to  the  Committee  on
  Judiciary

AN  ACT  to  amend  the  executive law, in relation to providing for the
  award of attorney's fees and expert witness fees in appropriate cases

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Subdivision  10  of  section 297 of the executive law, as
added by section 17 of part D of chapter 405 of the  laws  of  1999,  is
amended to read as follows:
  10.  [With  respect to cases of housing discrimination only, in] IN an
action or proceeding at law under this section or  section  two  hundred
ninety-eight  of  this article, the commissioner or the court may in its
discretion  award  reasonable  attorney's  fees  to  any  prevailing  or
substantially  prevailing  party;  provided,  however, that a prevailing
respondent or defendant in order to recover such  reasonable  attorney's
fees must make a motion requesting such fees and show that the action or
proceeding  brought  was  frivolous;  and  further  provided  that  in a
proceeding brought in the division of human rights, the commissioner may
only award attorney's fees as part of a final order after a public hear-
ing held pursuant to subdivision four of this section. In no case  shall
attorney's  fees  be  awarded to the division, nor shall the division be
liable to a prevailing or substantially prevailing party for  attorney's
fees, except in a case in which the division is a party to the action or
the  proceeding in the division's capacity as an employer.  WITH RESPECT
TO CASES OF EMPLOYMENT DISCRIMINATION ONLY, THE AWARD OF ATTORNEY'S FEES
WILL BE LIMITED TO THOSE CASES IN WHICH THE EMPLOYER HAS FIFTY  OR  MORE
EMPLOYEES.  EXPERT  WITNESS  FEES  MAY  BE AWARDED IN THE SAME MANNER AS
ATTORNEY'S FEES. In order to find the action or proceeding to be  frivo-
lous,  the court or the commissioner must find in writing one or more of
the following:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09042-01-9

A. 8184                             2

  (a) the action or proceeding was commenced, used or continued  in  bad
faith, solely to delay or prolong the resolution of the litigation or to
harass or maliciously injure another; or
  (b)  the  action or proceeding was commenced or continued in bad faith
without any reasonable basis and could not be supported by a good  faith
argument  for an extension, modification or reversal of existing law. If
the action or proceeding was promptly discontinued  when  the  party  or
attorney  learned  or  should have learned that the action or proceeding
lacked such a reasonable basis, the court may find that the party or the
attorney did not act in bad faith.
  S 2. This act shall take effect on the ninetieth day  after  it  shall
have become a law.