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

                                  4074

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                            January 30, 2013
                               ___________

Introduced  by  M. of A. KATZ, MONTESANO, FINCH -- Multi-Sponsored by --
  M. of A. GABRYSZAK -- read once and referred to the Committee on Judi-
  ciary

AN ACT to amend the civil practice law and rules,  in  relation  to  the
  recovery of attorney's fees by the prevailing defendant party

  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
article 87 to read as follows:
                               ARTICLE 87
                   COUNSEL FEES AND EXPENSES GENERALLY
SECTION 8700. FEES AND OTHER EXPENSES.
        8701. DEFINITIONS.
        8702. INTEREST.
        8703. APPLICABILITY.
  S 8700. FEES AND OTHER EXPENSES. (A)  WHEN  AWARDED.  IN  ADDITION  TO
COSTS,  DISBURSEMENTS  AND  ADDITIONAL  ALLOWANCES  AWARDED  PURSUANT TO
SECTIONS EIGHT THOUSAND TWO  HUNDRED  ONE  THROUGH  EIGHT  THOUSAND  TWO
HUNDRED FOUR AND EIGHT THOUSAND THREE HUNDRED ONE THROUGH EIGHT THOUSAND
THREE  HUNDRED  THREE  OF  THIS CHAPTER, AND EXCEPT AS OTHERWISE SPECIF-
ICALLY PROVIDED BY STATUTE, A COURT SHALL AWARD TO A DEFENDANT WHO AFTER
FINAL JUDGMENT IS RENDERED THE PREVAILING PARTY, FEES AND OTHER EXPENSES
INCURRED BY SUCH PARTY IN DEFENSE OF SUCH CIVIL ACTION, UNLESS THE COURT
FINDS THAT THE POSITION OF THE PLAINTIFF WAS SUBSTANTIALLY JUSTIFIED  OR
THAT SPECIAL CIRCUMSTANCES MAKE AN AWARD UNJUST. WHETHER THE POSITION OF
THE  PLAINTIFF WAS SUBSTANTIALLY JUSTIFIED SHALL BE DETERMINED SOLELY ON
THE BASIS OF THE RECORD BEFORE THE COURT AND THE ACT, ACTS,  OR  FAILURE
TO  ACT  THAT  GAVE  RISE  TO THE CIVIL ACTION. FEES SHALL BE DETERMINED
PURSUANT TO PREVAILING MARKET RATES FOR THE  KIND  AND  QUALITY  OF  THE
SERVICES  FURNISHED, EXCEPT THAT FEES AND EXPENSES MAY NOT BE AWARDED TO

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD08014-01-3

              

A. 4074                             2

A PARTY FOR ANY PORTION OF THE LITIGATION IN WHICH THE PARTY HAS  UNREA-
SONABLY PROTRACTED THE PROCEEDINGS.
  (B)  APPLICATION  FOR FEES. A PARTY SEEKING AN AWARD OF FEES AND OTHER
EXPENSES SHALL, WITHIN THIRTY DAYS  OF  FINAL  JUDGMENT  IN  THE  ACTION
SUBMIT  TO  THE  COURT  AN  APPLICATION  WHICH  SETS FORTH (1) THE FACTS
SUPPORTING THE CLAIM THAT THE PARTY IS A  PREVAILING  DEFENDANT  AND  IS
ELIGIBLE  TO RECEIVE AN AWARD UNDER THIS SECTION, (2) THE AMOUNT SOUGHT,
AND (3) AN ITEMIZED STATEMENT FROM EVERY ATTORNEY OR EXPERT WITNESS  FOR
WHOM  FEES  OR  EXPENSES ARE SOUGHT STATING THE ACTUAL TIME EXPENDED AND
THE RATE AT WHICH SUCH FEES AND OTHER EXPENSES ARE CLAIMED.
  S 8701. DEFINITIONS. FOR THE PURPOSE OF THIS ARTICLE:
  (A) "ACTION" MEANS ANY CIVIL ACTION  OR  PROCEEDING  BROUGHT  TO  SEEK
JUDICIAL REVIEW OF AN ACTION INCLUDING AN APPELLATE PROCEEDING.
  (B)  "FEES AND OTHER EXPENSES" MEANS THE REASONABLE EXPENSES OF EXPERT
WITNESSES, THE REASONABLE COST OF ANY STUDY, ANALYSIS, CONSULTATION WITH
EXPERTS, AND LIKE EXPENSES, AND REASONABLE ATTORNEY FEES, INCLUDING FEES
FOR WORK PERFORMED BY LAW STUDENTS OR PARALEGALS UNDER  THE  SUPERVISION
OF  AN ATTORNEY INCURRED IN CONNECTION WITH AN ADMINISTRATIVE PROCEEDING
AND JUDICIAL ACTION.
  (C) "FINAL JUDGMENT" MEANS A JUDGMENT THAT IS FINAL AND  NOT  APPEALA-
BLE, AND SETTLEMENT.
  (D) "PARTY" MEANS (I) AN INDIVIDUAL WHOSE NET WORTH, NOT INCLUDING THE
VALUE OF A HOMESTEAD USED AND OCCUPIED AS A PRINCIPAL RESIDENCE, DID NOT
EXCEED  FIFTY  THOUSAND  DOLLARS AT THE TIME THE CIVIL ACTION WAS FILED;
(II) ANY OWNER OF AN UNINCORPORATED BUSINESS OR ANY PARTNERSHIP,  CORPO-
RATION,  ASSOCIATION, REAL ESTATE DEVELOPER OR ORGANIZATION WHICH HAD NO
MORE THAN ONE HUNDRED EMPLOYEES AT THE TIME THE CIVIL ACTION WAS  FILED,
(III)  ANY  ORGANIZATION  DESCRIBED IN SECTION 501(C)(3) OF THE INTERNAL
REVENUE CODE OF 1954 (26 U.S.C. 501(C)(3)) EXEMPT  FROM  TAXATION  UNDER
SECTION 501(A) OF SUCH CODE REGARDLESS OF THE NUMBER OF EMPLOYEES.
  (E)  "PREVAILING  PARTY" MEANS A DEFENDANT IN THE CIVIL ACTION AGAINST
THE PLAINTIFF WHO PREVAILS IN WHOLE OR IN SUBSTANTIAL  PART  WHERE  SUCH
PARTY AND THE PLAINTIFF PREVAIL UPON SEPARATE ISSUES.
  S  8702.  INTEREST. IF THE PLAINTIFF APPEALS AN AWARD AND THE AWARD IS
AFFIRMED IN WHOLE OR IN PART, INTEREST SHALL BE PAID ON  THE  AMOUNT  OF
THE  AWARD.  SUCH  INTEREST SHALL RUN FROM THE DATE OF THE AWARD THROUGH
THE DAY BEFORE THE DATE OF THE AFFIRMANCE.
  S 8703. APPLICABILITY. (A) NOTHING CONTAINED IN THIS ARTICLE SHALL  BE
CONSTRUED TO ALTER OR MODIFY THE OTHER PROVISIONS OF THIS CHAPTER.
  (B) NOTHING CONTAINED IN THIS ARTICLE SHALL BE DEEMED TO AUTHORIZE THE
INSTITUTION  OF  A  CIVIL  ACTION FOR THE SOLE PURPOSE OF OBTAINING FEES
INCURRED BY A PARTY TO AN ADMINISTRATIVE PROCEEDING.
  (C) NOTHING CONTAINED IN THIS ARTICLE SHALL  AFFECT  OR  PRECLUDE  THE
RIGHT  OF  ANY  PARTY  TO  RECOVER  FEES OR OTHER EXPENSES AUTHORIZED BY
COMMON LAW OR BY ANY OTHER STATUTE, LAW OR RULE.
  S 2. This act shall take effect immediately.