Expands the definition of "prevailing party" for purposes of counsel fees and expenses in certain actions against the state, to include a party whose pursuit of a non-frivolous claim or defense was a catalyst for a voluntary or unilateral change in position by the opposing party that provides any significant part of the relief sought.

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S713-2013 Actions

• Jan 9, 2013: REFERRED TO JUDICIARY

S713-2013 Memo

BILL NUMBER:S713

TITLE OF BILL:
An act to amend the civil practice law and rules, in relation to the
definition of "prevailing party" for purposes of counsel fees and
expenses in certain actions against the state

PURPOSE:
Clarifies the definition of
"prevailing party" for purposes of counsel fees and expenses in certain
actions against the state authorized by the Equal Access to Justice Act
of 1989.

SUMMARY OF SPECIFIC PROVISIONS:

� 1- Subdivision (f) of section 8602 of the Civil Practice Law and
Rules, as added by Chapter 770 of the Laws of 1989, is amended to read
as follows: (f) "prevailing party" means plaintiff or petitioner in the
civil action against the state who prevails in whole or in substantial
part where such party and the state prevail upon separate issues. The
term "prevailing party" shall include, in addition to a party who
substantially prevails through a judicial or administrative judgment or
order, or an enforceable written agreement, a party whose pursuit of a
non-frivolous claim was a catalyst for a voluntary or unilateral change
in the position by the opposing party that provides any significant part
of the relief sought.

� 2- Effective date.

EXISTING LAW:
Current law authorizes an award of
attorney's fees to litigants, including small businesses, not-for-profit
organizations and individuals of modest means, who have been wronged by
the unjustified actions of New York State agencies.

JUSTIFICATION:
New York's Equal Access to Justice Act
(EAJA) was enacted in 1989 and was patterned after Federal legislation
enacted in 1976. The EAJA authorizes an award of attorney's fees to
litigants, including small businesses, not-for-profit organizations and
individuals of modest means, who have been wronged by the unjustified
actions of New York State agencies.

However, recent court decision, beginning with a U.S. Supreme Court
ruling in 2001 (Buckhannon v. West Virginia Dept. of Health and Human
Services, 532 US 598), have effectively repealed the EAJA. Simply
stated, the courts no longer find these litigants to be the "prevailing
party" entitled to attorney's fees where the case settles at any time
prior to a final judgment. In fact, for the 2007-2008 state fiscal year
no attorney's fees were paid in these types of cases. As a result of
this failure to award fees as contemplated by the EAJA, attorneys are
increasingly unwilling to take on these matters.

Ultimately, the absence
of attorneys willing to bring such actions against state agencies
negates the efficiency of the Equal Access to Justice Act in tempering


overarching state action and allowing small businesses, not-for-profit
groups and people of modest means to fight back.

This new legislation would remedy this problem by amending New York
State law to mirror provisions in the New York City Human Rights Law and
a 2008 U.S. Senate bill to award attorney's fees in actions where the
pursuit of litigation has acted as a "catalyst for a voluntary or
unilateral change in position by the opposing party (i.e. the government
agencies) that provides any significant part of the relief sought."

PRIOR LEGISLATIVE HISTORY:
2011-2012: A.3264/S.5131
2009-2010: A.7395/S.4534

FISCAL IMPLICATIONS:
Yet to be determined.

EFFECTIVE DATE:
This act shall take effect immediately.

S713-2013 Text

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

                                     713

                         2013-2014 Regular Sessions

                              I N  SENATE

                                 (PREFILED)

                               January 9, 2013
                                 ___________

  Introduced  by Sen. GRISANTI -- read twice and ordered printed, and when
    printed to be committed to the Committee on Judiciary

  AN ACT to amend the civil practice law and rules,  in  relation  to  the
    definition  of  "prevailing  party"  for  purposes of counsel fees and
    expenses in certain actions against the state

    THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
  BLY, DO ENACT AS FOLLOWS:


    Section  1.  Subdivision (f) of section 8602 of the civil practice law
  and rules, as added by chapter 770 of the laws of 1989,  is  amended  to
  read as follows:

    (f)  "Prevailing  party"  means a plaintiff or petitioner in the civil
  action against the state who prevails in whole or  in  substantial  part
  where  such  party and the state prevail upon separate issues.  THE TERM
  "PREVAILING PARTY" SHALL INCLUDE, IN ADDITION TO A  PARTY  WHO  SUBSTAN-
  TIALLY  PREVAILS THROUGH A JUDICIAL OR ADMINISTRATIVE JUDGMENT OR ORDER,
  OR AN ENFORCEABLE WRITTEN AGREEMENT, A PARTY WHOSE PURSUIT OF A NON-FRI-
  VOLOUS CLAIM WAS A CATALYST FOR A  VOLUNTARY  OR  UNILATERAL  CHANGE  IN
  POSITION BY THE OPPOSING PARTY THAT PROVIDES ANY SIGNIFICANT PART OF THE
  RELIEF SOUGHT.
    S 2. This act shall take effect immediately.




   EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                        [ ] is old law to be omitted.
                                                             LBD04682-01-3