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

                                  8796

                          I N  A S S E M B L Y

                            February 14, 2014
                               ___________

Introduced  by M. of A. BORELLI -- read once and referred to the Commit-
  tee on Governmental Operations

AN ACT to amend the executive law,  in  relation  to  the  provision  of
  attorney's  fees  in  cases of housing, employment or credit discrimi-
  nation; to amend the executive law, in relation  to  the  awarding  of
  reasonable attorney's fees

  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 ALL cases of HOUSING  DISCRIMINATION  AND  housing
RELATED  CREDIT discrimination [only], 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; AND
WITH RESPECT TO A CLAIM OF EMPLOYMENT OR CREDIT DISCRIMINATION WHERE SEX
IS A BASIS OF SUCH DISCRIMINATION, 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  ATTRIBUTABLE  TO  SUCH  CLAIM TO ANY 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 hearing 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 substan-
tially 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 divi-
sion's capacity as an employer.  IN CASES OF EMPLOYMENT  DISCRIMINATION,
A  RESPONDENT SHALL ONLY BE LIABLE FOR ATTORNEY'S FEES UNDER THIS SUBDI-
VISION IF THE RESPONDENT HAS BEEN FOUND LIABLE FOR HAVING  COMMITTED  AN

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

                                                           LBD13889-01-4

A. 8796                             2

UNLAWFUL  DISCRIMINATORY  PRACTICE.  In  order  to  find  the  action or
proceeding to be frivolous, the court or the commissioner must  find  in
writing one or more of the following:
  (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.  Paragraph  c of subdivision 7 of section 296-a of the executive
law, as amended by chapter 632 of the laws of 1976, is amended  to  read
as follows:
  c.  If  the  superintendent finds that a violation of this section has
occurred, the superintendent shall issue an order which shall do one  or
more of the following:
  (1)  impose a fine in an amount not to exceed ten thousand dollars for
each violation, to be paid to the people of the state of New York;
  (2) award  compensatory  damages  to  the  person  aggrieved  by  such
violation;
  (3)  FOR  A  CLAIM OF SEX DISCRIMINATION ONLY, AWARD REASONABLE ATTOR-
NEY'S FEES ATTRIBUTABLE TO SUCH CLAIM TO ANY 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. IN NO CASE
SHALL ATTORNEY'S FEES BE  AWARDED  TO  THE  DEPARTMENT,  NOR  SHALL  THE
DEPARTMENT BE LIABLE TO A PREVAILING PARTY FOR ATTORNEY'S FEES. IN ORDER
TO  FIND  THE  ACTION  OR PROCEEDING TO BE FRIVOLOUS, THE SUPERINTENDENT
MUST FIND IN WRITING ONE OR MORE OF THE FOLLOWING:
  (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.
  (4) require the regulated creditor  to  cease  and  desist  from  such
unlawful discriminatory practices;
  [(4)] (5) require the regulated creditor to take such further affirma-
tive  action as will effectuate the purposes of this section, including,
but not limited to, granting the credit which was  the  subject  of  the
complaint.
  S 3. Severability clause. If any clause, sentence, paragraph, subdivi-
sion, section or part of this act shall be adjudged by a court of compe-
tent  jurisdiction to be invalid, such judgment shall not affect, impair
or invalidate the remainder thereof, but shall be confined in its opera-
tion to the clause, sentence, paragraph, subdivision,  section  or  part
thereof  directly  involved  in  the  controversy in which such judgment
shall have been rendered. It is hereby declared to be the intent of  the

A. 8796                             3

legislature  that  this act would have been enacted even if such invalid
provisions had not been included herein.
  S  4.  This  act  shall take effect on the sixtieth day after it shall
have become a law, and shall apply to actions commenced on or after such
date.