New York Civil Practice
Law & Rules


NYCPLR Article 86

COUNSEL FEES AND EXPENSES IN CERTAIN ACTIONS AGAINST THE STATE

8600. Intent and short title.
8601. Fees and other expenses in certain actions against the state.
8602. Definitions.
8603. Interest.
8604. Annual report.
8605. Applicability.

S 8600. Intent and short title. It is the intent of this article, which may hereafter be known and cited as the "New York State Equal Access to Justice Act", to create a mechanism authorizing the recovery of counsel fees and other reasonable expenses in certain actions against the state of New York, similar to the provisions of federal law contained in 28 U.S.C. S 2412(d) and the significant body of case law that has evolved thereunder.

S 8601. Fees and other expenses in certain actions against the state.

(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 specifically provided by statute, a court shall award to a prevailing party, other than the state, fees and other expenses incurred by such party in any civil action brought against the state, unless the court finds that the position of the state was substantially justified or that special circumstances make an award unjust. Whether the position of the state was substantially justified shall be determined solely on the basis of the record before the agency or official whose act, acts, or failure to act 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 a party for any portion of the litigation in which the party has unreasonably 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 party 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 8602. Definitions. For the purpose of this article:

(a) "Action" means any civil action or proceeding brought to seek judicial review of an action of the state as defined in subdivision (g) of this section, including an appellate proceeding, but does not include an action brought in the court of claims.

(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 appealable, 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, corporation, 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) "Position of the state" means the act, acts or failure to act from which judicial review is sought.

(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.

(g) "State" means the state or any of its agencies or any of its officials acting in his or her official capacity.

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Article 86, Continued . . .

S 8603. Interest. If the state appeals an award made pursuant to this section 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 8604. Annual report. The department of audit and control shall file with the governor, the speaker of the assembly and the majority leader of the senate an annual report describing the number, nature and amount of each award in the previous fiscal year including the agency involved in each action, and other relevant information which might aid the legislature and the governor in evaluating the scope and impact of such awards.

S 8605. Applicability.

(a) Nothing contained in this article shall be construed to alter or modify the other provisions of this chapter where applicable to actions other than actions against the state.

(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.

Article 90

FAILURE OR ADJOURNMENT OF TERM OF COURT

9001. No abatement by failure, adjournment, or change of time or place of term of court.
9002. Death, disability or incapacity of judge following verdict, report, decision, or determination of motion or special proceeding.
9003. Running of time when county judge disqualified from acting in a case.

Rule 9001. No abatement by failure, adjournment, or change of time or place of term of court. When a term of a court fails or is adjourned or the time or place of holding it is changed, all persons are bound to appear and all proceedings shall continue at the time and place to which the term is adjourned or changed, or, if it has failed, at the next term, with like effect as if the term had been held as originally appointed.

Rule 9002. Death, disability or incapacity of judge following verdict, report, decision, or determination of motion or special proceeding. The death, sickness, resignation, removal from or expiration of office or other disability or legal incapacity of a judge following his verdict, report, decision or determination of a motion or special proceeding in any matter in a civil judicial proceeding shall not affect its validity. Unless otherwise provided by rule of the chief administrator of the courts, any other judge of the same court may, on the application of a party, give effect to such verdict, report, decision or determination and make and sign an appropriate order or judgment based thereon, which shall have the same effect as if it had been made by the judge upon whose verdict, report, decision or determination it is based.

Rule 9003. Running of time when county judge disqualified from acting in a case. If a county judge is disqualified from acting in any case pending in his court and files a certificate pursuant to judiciary law section one hundred ninety-two, the time within which any proceeding may be taken, as fixed by statute or rule, does not begin to run until the certificate is filed.