Bill S713A-2013

Expands the definition of "prevailing party" for purposes of counsel fees and expenses in certain actions against the state

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.

Details

Actions

  • Jan 10, 2014: PRINT NUMBER 713A
  • Jan 10, 2014: AMEND AND RECOMMIT TO JUDICIARY
  • Jan 8, 2014: REFERRED TO JUDICIARY
  • Jan 9, 2013: REFERRED TO JUDICIARY

Memo

BILL NUMBER:S713A

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 OF THE BILL:

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 ox 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. This subdivision shall not apply to civil actions against local governments.

§ 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 2001-2008 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.7395/5.4534.

FISCAL IMPLICATIONS:

Yet to be determined.

EFFECTIVE DATE:

This act shall take effect immediately.


Text

STATE OF NEW YORK ________________________________________________________________________ 713--A 2013-2014 Regular Sessions IN SENATE (PREFILED) January 9, 2013 ___________
Introduced by Sens. GRISANTI, ADDABBO -- read twice and ordered printed, and when printed to be committed to the Committee on Judiciary -- recommitted to the Committee on Judiciary in accordance with Senate Rule 6, sec. 8 -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee 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. THIS SUBDIVISION SHALL NOT APPLY TO CIVIL ACTIONS AGAINST LOCAL GOVERNMENTS. S 2. This act shall take effect immediately.

Comments

Open Legislation comments facilitate discussion of New York State legislation. All comments are subject to moderation. Comments deemed off-topic, commercial, campaign-related, self-promotional; or that contain profanity or hate speech; or that link to sites outside of the nysenate.gov domain are not permitted, and will not be published. Comment moderation is generally performed Monday through Friday.

By contributing or voting you agree to the Terms of Participation and verify you are over 13.

Discuss!

blog comments powered by Disqus