senate Bill S713A

2013-2014 Legislative Session

Expands the definition of "prevailing party" for purposes of counsel fees and expenses in certain actions against the state

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Archive: Last Bill Status - In Committee


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor

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Actions

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jan 10, 2014 print number 713a
amend and recommit to judiciary
Jan 08, 2014 referred to judiciary
Jan 09, 2013 referred to judiciary

Bill Amendments

Original
A (Active)
Original
A (Active)

Co-Sponsors

S713 - Bill Details

See Assembly Version of this Bill:
A2068A
Current Committee:
Senate Judiciary
Law Section:
Civil Practice Law and Rules
Laws Affected:
Amd §8602, CPLR
Versions Introduced in Previous Legislative Sessions:
2011-2012: S5131, A3264
2009-2010: S4534, A7395

S713 - Bill Texts

view summary

Expands the definition of "prevailing party" for purposes of counsel fees and expenses in certain actions against the state, to include a party whose pursuit of a non-frivolous claim or defense was a catalyst for a voluntary or unilateral change in position by the opposing party that provides any significant part of the relief sought.

view sponsor memo
BILL NUMBER:S713

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 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 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:
2011-2012: A.3264/S.5131
2009-2010: A.7395/S.4534

FISCAL IMPLICATIONS:
Yet to be determined.

EFFECTIVE DATE:
This act shall take effect immediately.

view full text
download pdf
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                   713

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 9, 2013
                               ___________

Introduced  by Sen. GRISANTI -- read twice and ordered printed, and when
  printed to be committed to the Committee on Judiciary

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

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

  Section  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 a 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  SUBSTAN-
TIALLY  PREVAILS THROUGH A JUDICIAL OR ADMINISTRATIVE JUDGMENT OR ORDER,
OR AN ENFORCEABLE WRITTEN AGREEMENT, A PARTY WHOSE PURSUIT OF A NON-FRI-
VOLOUS CLAIM WAS A CATALYST FOR A  VOLUNTARY  OR  UNILATERAL  CHANGE  IN
POSITION BY THE OPPOSING PARTY THAT PROVIDES ANY SIGNIFICANT PART OF THE
RELIEF SOUGHT.
  S 2. This act shall take effect immediately.




 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD04682-01-3

Co-Sponsors

S713A (ACTIVE) - Bill Details

See Assembly Version of this Bill:
A2068A
Current Committee:
Senate Judiciary
Law Section:
Civil Practice Law and Rules
Laws Affected:
Amd §8602, CPLR
Versions Introduced in Previous Legislative Sessions:
2011-2012: S5131, A3264
2009-2010: S4534, A7395

S713A (ACTIVE) - Bill Texts

view summary

Expands the definition of "prevailing party" for purposes of counsel fees and expenses in certain actions against the state, to include a party whose pursuit of a non-frivolous claim or defense was a catalyst for a voluntary or unilateral change in position by the opposing party that provides any significant part of the relief sought.

view sponsor memo
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.

view full text
download pdf
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 713--A

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 9, 2013
                               ___________

Introduced by Sens. GRISANTI, ADDABBO -- read twice and ordered printed,
  and  when  printed  to  be  committed to the Committee on Judiciary --
  recommitted to the Committee on Judiciary in  accordance  with  Senate
  Rule  6,  sec.  8  --  committee  discharged,  bill  amended,  ordered
  reprinted as amended and recommitted to said committee

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

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

  Section  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 a 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  SUBSTAN-
TIALLY  PREVAILS THROUGH A JUDICIAL OR ADMINISTRATIVE JUDGMENT OR ORDER,
OR AN ENFORCEABLE WRITTEN AGREEMENT, A PARTY WHOSE PURSUIT OF A NON-FRI-
VOLOUS CLAIM WAS A CATALYST FOR A  VOLUNTARY  OR  UNILATERAL  CHANGE  IN
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.
  S 2. This act shall take effect immediately.



 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD04682-07-3

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