S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5516
 
                        2017-2018 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 9, 2017
                                ___________
 
 Introduced  by  M.  of A. SEPULVEDA, DAVILA -- read once and referred to
   the Committee on Judiciary
 
 AN ACT to amend the civil practice law and rules, in relation to  attor-
   neys' fees and costs for meritless actions and abusive lawsuits
 
   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
 section 8101-a to read as follows:
   § 8101-A. ATTORNEYS' FEES AND COSTS FOR MERITLESS ACTIONS AND  ABUSIVE
 ACTIONS.    1.  WHERE  A COURT GRANTS A MOTION TO DISMISS FOR FAILURE TO
 STATE A CAUSE OF ACTION UPON WHICH RELIEF  MAY  BE  GRANTED,  THE  COURT
 SHALL  AWARD THE PARTY OR PARTIES AGAINST WHOM THE DISMISSED CLAIMS WERE
 ASSERTED REASONABLE ATTORNEYS' FEES AND COSTS INCURRED IN THE PROCEEDING
 AS A CONSEQUENCE OF THE DISMISSED CLAIMS.
   2. NOTWITHSTANDING ANY OTHER PROVISION  OF  THIS  SECTION,  THE  COURT
 SHALL  NOT  REQUIRE  A PARTY TO PAY ATTORNEYS' FEES AND COSTS UNDER THIS
 SECTION IN EXCESS OF FIFTEEN THOUSAND DOLLARS IN ANY SINGLE LAWSUIT.
   3. THIS SECTION SHALL NOT APPLY TO:
   A. ACTIONS BY THE STATE, OTHER GOVERNMENT ENTITIES,  OR  PUBLIC  OFFI-
 CIALS ACTING IN THEIR OFFICIAL CAPACITY OR UNDER COLOR OF LAW;
   B.  ANY CLAIM THAT IS DISMISSED BY THE GRANTING OF A MOTION TO DISMISS
 THAT WAS FILED MORE THAN SIXTY DAYS  AFTER  THE  MOVING  PARTY  RECEIVED
 SERVICE OF THE LATEST COMPLAINT, COUNTER-COMPLAINT OR CROSS-COMPLAINT IN
 WHICH THAT DISMISSED CLAIM WAS MADE;
   C.  ANY  CLAIM  THAT  THE PARTY AGAINST WHOM THE MOTION TO DISMISS WAS
 GRANTED IN GOOD FAITH AMENDED TO STATE A CLAIM UPON WHICH RELIEF MAY  BE
 GRANTED;
   D. ACTIONS BY PRO SE LITIGANTS, EXCEPT WHERE THE COURT ALSO FINDS THAT
 THE  PRO  SE PARTY ACTED UNREASONABLY IN BRINGING, OR REFUSING TO VOLUN-
 TARILY WITHDRAW, THE DISMISSED CLAIM;
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD09746-01-7
              

 A. 5516                             2
 
   E. ANY CLAIM WHICH IS  A  GOOD  FAITH,  NON-FRIVOLOUS  CLAIM  FOR  THE
 EXPRESS  PURPOSE  OF  EXTENDING, MODIFYING, OR REVERSING EXISTING PRECE-
 DENT, LAW OR REGULATION, OR FOR THE EXPRESS PURPOSE OF ESTABLISHING  THE
 MEANING, LAWFULNESS OR CONSTITUTIONALITY OF A LAW, REGULATION OR CONSTI-
 TUTIONAL  RIGHT  WHERE  THE  ISSUE  IS  A  MATTER OF FIRST IMPRESSION OR
 SUBJECT TO CONFLICTING INTERPRETATIONS. THIS SUBDIVISION SHALL NOT APPLY
 WHEN THE PARTY THAT ASSERTED THE DISMISSED  CLAIM  SPECIFICALLY  PLEADED
 THAT THE DISMISSED CLAIM WAS MADE FOR ONE OF THE EXPRESS PURPOSES LISTED
 ABOVE AND CITED THE CONTRARY PRECEDENT OR INTERPRETATION THE PARTY SEEKS
 TO  DISTINGUISH  OR  OVERCOME,  OR  WHETHER THE ISSUE TO BE DECIDED IS A
 MATTER OF FIRST IMPRESSION OR CONFLICTING INTERPRETATIONS  AS  DESCRIBED
 IN THIS SUBDIVISION; OR
   F.  ANY  CLAIM  FOR  WHICH  RELIEF COULD BE GRANTED UNDER A LAW, REGU-
 LATION, A COURT PRECEDENT THAT WAS IN EFFECT AND APPLICABLE TO THE CLAIM
 AT THE TIME THE CLAIM WAS FILED; WHERE THAT LAW, REGULATION,  OR  PRECE-
 DENT  WAS CITED IN THE PLEADING IN WHICH THE DISMISSED CLAIM WAS MADE OR
 IN THE RESPONSE TO THE MOTION TO DISMISS; AND WHERE  COURT  GRANTED  THE
 MOTION  TO  DISMISS  THE  CLAIM DUE TO THE SUBSEQUENT REPEAL, AMENDMENT,
 OVERRULING, OR DISTINGUISHING OF THAT LAW, REGULATION, OR  COURT  PRECE-
 DENT.
   4.  AN  AWARD  PURSUANT  TO  THIS SECTION SHALL BE MADE ONLY AFTER ALL
 APPEALS OF THE ISSUE OF THE GRANTING OF THE MOTION TO DISMISS HAVE  BEEN
 EXHAUSTED  AND  IF  THE  FINAL  OUTCOME IS THE GRANTING OF THE MOTION TO
 DISMISS.
   5. NOTHING IN THIS SECTION SHALL BE CONSTRUED TO LIMIT  THE  AWARD  OF
 ATTORNEYS' FEES, COSTS, OR SANCTIONS AUTHORIZED BY OTHER LAW.
   §  2.  Subdivision (a) of section 8303-a of the civil practice law and
 rules, as amended by chapter 620 of the laws of 1997, is amended to read
 as follows:
   (a) If in an action to recover damages for personal injury, injury  to
 property  or  wrongful death, or an action brought by the individual who
 committed a crime against the victim of the crime, and  such  action  or
 claim  is  commenced  or  continued  by  a  plaintiff or a counterclaim,
 defense or cross claim is commenced or continued by a defendant  and  is
 found, at any time during the proceedings or upon judgment, to be frivo-
 lous  by  the  court,  the  court  shall  award to [the successful] EACH
 PREVAILING party costs and  reasonable  attorney's  fees  not  exceeding
 [ten]  TWENTY-FIVE thousand dollars FOR EACH FRIVOLOUS CLAIM, DEFENSE OR
 CROSS CLAIM.
   § 3. This act shall take effect immediately.