S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   3923
 
                        2017-2018 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 30, 2017
                                ___________
 
 Introduced  by M. of A. DINOWITZ, GOTTFRIED -- read once and referred to
   the Committee on Judiciary
 
 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
 amended  by  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
 THE  SAME  MANNER  AS  ATTORNEY'S FEES. In cases of employment discrimi-
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD03592-02-7

 A. 3923                             2
 
 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.
   § 2. This act shall take effect on the ninetieth day  after  it  shall
 have become a law.