Assembly Bill A1998A

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

                                 1998--A
                                                         Cal. No. 94

                       2015-2016 Regular Sessions

                          I N  A S S E M B L Y

                            January 13, 2015
                               ___________

Introduced  by M. of A. DINOWITZ, GOTTFRIED -- read once and referred to
  the Committee on Judiciary -- advanced to a third reading, amended and
  ordered reprinted, retaining its place on the order of third reading

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 364 of the laws of 2015, is
amended to read as follows:
  10. [With respect to all cases of housing discrimination  and  housing
related  credit  discrimination  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; 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. EXPERT WITNESS FEES MAY  BE  AWARDED  IN

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

                                                           LBD00704-02-6

A. 1998--A                          2

THE  SAME  MANNER  AS  ATTORNEY'S FEES. In cases of employment discrimi-
nation, a respondent shall only be liable for attorney's fees under this
subdivision if the respondent has been found liable for having committed
an  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.  This  act shall take effect on the ninetieth day after it shall
have become a law; provided, however, that if chapter 364 of the laws of
2015 shall not have taken effect on or before such date, this act  shall
take effect on the same date as such chapter takes effect.