The New York State Senate

 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    749
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                                (PREFILED)
 
                              January 6, 2021
                                ___________
 
 Introduced  by  Sens. BIAGGI, HOYLMAN, SALAZAR -- read twice and ordered
   printed, and when printed to be committed to the Committee on Investi-
   gations and Government Operations
 
 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  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]  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 credit discrimination where sex is a basis of
 such discrimination, and  with  respect  to  all  claims  of  employment
 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 attrib-
 utable  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 substantially
 prevailing party for attorney's fees, except in  a  case  in  which  the
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets

                       [ ] is old law to be omitted.
                                                            LBD02894-01-1

 S. 749                              2
 
 division  is  a  party to the action or the proceeding in the division's
 capacity as an employer.  EXPERT WITNESS FEES MAY BE AWARDED IN THE SAME
 MANNER AS ATTORNEY'S FEES. In  cases  of  employment  discrimination,  a
 respondent  shall only be liable for attorney's fees under this subdivi-
 sion 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.