S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8795
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             November 25, 2019
                                ___________
 
 Introduced by M. of A. O'DONNELL, SIMON -- read once and referred to the
   Committee on Governmental Operations
 
 AN  ACT  to amend the executive law, in relation to providing for awards
   of attorney's fees in actions under the human rights law
 
   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 161 of the laws  of  2019,  is  amended  to  read  as
 follows:
   10.  [With  respect to all cases of housing discrimination and housing
 related credit 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  attor-
 ney's fees to any prevailing or substantially prevailing party; and with
 respect to a claim of credit discrimination where sex is a basis of such
 discrimination,  and  with respect to all claims of employment discrimi-
 nation 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] SHALL 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] PLAINTIFF OR COMPLAINANT. In no case shall attorney's  fees  be
 awarded  to the division, nor shall the division be liable to a prevail-
 ing or substantially 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 division's capacity as an employer. In cases of employment discrimi-
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD09338-02-9

 A. 8795                             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 immediately.