S T A T E O F N E W Y O R K
________________________________________________________________________
4074
2013-2014 Regular Sessions
I N A S S E M B L Y
January 30, 2013
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Introduced by M. of A. KATZ, MONTESANO, FINCH -- Multi-Sponsored by --
M. of A. GABRYSZAK -- read once and referred to the Committee on Judi-
ciary
AN ACT to amend the civil practice law and rules, in relation to the
recovery of attorney's fees by the prevailing defendant party
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The civil practice law and rules is amended by adding a new
article 87 to read as follows:
ARTICLE 87
COUNSEL FEES AND EXPENSES GENERALLY
SECTION 8700. FEES AND OTHER EXPENSES.
8701. DEFINITIONS.
8702. INTEREST.
8703. APPLICABILITY.
S 8700. FEES AND OTHER EXPENSES. (A) WHEN AWARDED. IN ADDITION TO
COSTS, DISBURSEMENTS AND ADDITIONAL ALLOWANCES AWARDED PURSUANT TO
SECTIONS EIGHT THOUSAND TWO HUNDRED ONE THROUGH EIGHT THOUSAND TWO
HUNDRED FOUR AND EIGHT THOUSAND THREE HUNDRED ONE THROUGH EIGHT THOUSAND
THREE HUNDRED THREE OF THIS CHAPTER, AND EXCEPT AS OTHERWISE SPECIF-
ICALLY PROVIDED BY STATUTE, A COURT SHALL AWARD TO A DEFENDANT WHO AFTER
FINAL JUDGMENT IS RENDERED THE PREVAILING PARTY, FEES AND OTHER EXPENSES
INCURRED BY SUCH PARTY IN DEFENSE OF SUCH CIVIL ACTION, UNLESS THE COURT
FINDS THAT THE POSITION OF THE PLAINTIFF WAS SUBSTANTIALLY JUSTIFIED OR
THAT SPECIAL CIRCUMSTANCES MAKE AN AWARD UNJUST. WHETHER THE POSITION OF
THE PLAINTIFF WAS SUBSTANTIALLY JUSTIFIED SHALL BE DETERMINED SOLELY ON
THE BASIS OF THE RECORD BEFORE THE COURT AND THE ACT, ACTS, OR FAILURE
TO ACT THAT GAVE RISE TO THE CIVIL ACTION. FEES SHALL BE DETERMINED
PURSUANT TO PREVAILING MARKET RATES FOR THE KIND AND QUALITY OF THE
SERVICES FURNISHED, EXCEPT THAT FEES AND EXPENSES MAY NOT BE AWARDED TO
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD08014-01-3
A. 4074 2
A PARTY FOR ANY PORTION OF THE LITIGATION IN WHICH THE PARTY HAS UNREA-
SONABLY PROTRACTED THE PROCEEDINGS.
(B) APPLICATION FOR FEES. A PARTY SEEKING AN AWARD OF FEES AND OTHER
EXPENSES SHALL, WITHIN THIRTY DAYS OF FINAL JUDGMENT IN THE ACTION
SUBMIT TO THE COURT AN APPLICATION WHICH SETS FORTH (1) THE FACTS
SUPPORTING THE CLAIM THAT THE PARTY IS A PREVAILING DEFENDANT AND IS
ELIGIBLE TO RECEIVE AN AWARD UNDER THIS SECTION, (2) THE AMOUNT SOUGHT,
AND (3) AN ITEMIZED STATEMENT FROM EVERY ATTORNEY OR EXPERT WITNESS FOR
WHOM FEES OR EXPENSES ARE SOUGHT STATING THE ACTUAL TIME EXPENDED AND
THE RATE AT WHICH SUCH FEES AND OTHER EXPENSES ARE CLAIMED.
S 8701. DEFINITIONS. FOR THE PURPOSE OF THIS ARTICLE:
(A) "ACTION" MEANS ANY CIVIL ACTION OR PROCEEDING BROUGHT TO SEEK
JUDICIAL REVIEW OF AN ACTION INCLUDING AN APPELLATE PROCEEDING.
(B) "FEES AND OTHER EXPENSES" MEANS THE REASONABLE EXPENSES OF EXPERT
WITNESSES, THE REASONABLE COST OF ANY STUDY, ANALYSIS, CONSULTATION WITH
EXPERTS, AND LIKE EXPENSES, AND REASONABLE ATTORNEY FEES, INCLUDING FEES
FOR WORK PERFORMED BY LAW STUDENTS OR PARALEGALS UNDER THE SUPERVISION
OF AN ATTORNEY INCURRED IN CONNECTION WITH AN ADMINISTRATIVE PROCEEDING
AND JUDICIAL ACTION.
(C) "FINAL JUDGMENT" MEANS A JUDGMENT THAT IS FINAL AND NOT APPEALA-
BLE, AND SETTLEMENT.
(D) "PARTY" MEANS (I) AN INDIVIDUAL WHOSE NET WORTH, NOT INCLUDING THE
VALUE OF A HOMESTEAD USED AND OCCUPIED AS A PRINCIPAL RESIDENCE, DID NOT
EXCEED FIFTY THOUSAND DOLLARS AT THE TIME THE CIVIL ACTION WAS FILED;
(II) ANY OWNER OF AN UNINCORPORATED BUSINESS OR ANY PARTNERSHIP, CORPO-
RATION, ASSOCIATION, REAL ESTATE DEVELOPER OR ORGANIZATION WHICH HAD NO
MORE THAN ONE HUNDRED EMPLOYEES AT THE TIME THE CIVIL ACTION WAS FILED,
(III) ANY ORGANIZATION DESCRIBED IN SECTION 501(C)(3) OF THE INTERNAL
REVENUE CODE OF 1954 (26 U.S.C. 501(C)(3)) EXEMPT FROM TAXATION UNDER
SECTION 501(A) OF SUCH CODE REGARDLESS OF THE NUMBER OF EMPLOYEES.
(E) "PREVAILING PARTY" MEANS A DEFENDANT IN THE CIVIL ACTION AGAINST
THE PLAINTIFF WHO PREVAILS IN WHOLE OR IN SUBSTANTIAL PART WHERE SUCH
PARTY AND THE PLAINTIFF PREVAIL UPON SEPARATE ISSUES.
S 8702. INTEREST. IF THE PLAINTIFF APPEALS AN AWARD AND THE AWARD IS
AFFIRMED IN WHOLE OR IN PART, INTEREST SHALL BE PAID ON THE AMOUNT OF
THE AWARD. SUCH INTEREST SHALL RUN FROM THE DATE OF THE AWARD THROUGH
THE DAY BEFORE THE DATE OF THE AFFIRMANCE.
S 8703. APPLICABILITY. (A) NOTHING CONTAINED IN THIS ARTICLE SHALL BE
CONSTRUED TO ALTER OR MODIFY THE OTHER PROVISIONS OF THIS CHAPTER.
(B) NOTHING CONTAINED IN THIS ARTICLE SHALL BE DEEMED TO AUTHORIZE THE
INSTITUTION OF A CIVIL ACTION FOR THE SOLE PURPOSE OF OBTAINING FEES
INCURRED BY A PARTY TO AN ADMINISTRATIVE PROCEEDING.
(C) NOTHING CONTAINED IN THIS ARTICLE SHALL AFFECT OR PRECLUDE THE
RIGHT OF ANY PARTY TO RECOVER FEES OR OTHER EXPENSES AUTHORIZED BY
COMMON LAW OR BY ANY OTHER STATUTE, LAW OR RULE.
S 2. This act shall take effect immediately.