Senate Bill S5131

                                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Services, 532 US 598), have effectively repealed the EAJA.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.