Bill Text: NY A02625 | 2015-2016 | General Assembly | Introduced
Bill Title: Relates to the recovery of attorney's fees by the prevailing defendant party.
Spectrum: Partisan Bill (Republican 12-0)
Status: (Introduced - Dead) 2016-05-17 - held for consideration in judiciary [A02625 Detail]
Download: New_York-2015-A02625-Introduced.html
S T A T E O F N E W Y O R K ________________________________________________________________________ 2625 2015-2016 Regular Sessions I N A S S E M B L Y January 20, 2015 ___________ Introduced by M. of A. KATZ -- Multi-Sponsored by -- M. of A. BLANKEN- BUSH, CORWIN, FINCH, HAWLEY, McDONOUGH, MONTESANO, TENNEY, WALTER -- read once and referred to the Committee on Judiciary 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: 1 Section 1. The civil practice law and rules is amended by adding a new 2 article 87 to read as follows: 3 ARTICLE 87 4 COUNSEL FEES AND EXPENSES GENERALLY 5 SECTION 8700. FEES AND OTHER EXPENSES. 6 8701. DEFINITIONS. 7 8702. INTEREST. 8 8703. APPLICABILITY. 9 S 8700. FEES AND OTHER EXPENSES. (A) WHEN AWARDED. IN ADDITION TO 10 COSTS, DISBURSEMENTS AND ADDITIONAL ALLOWANCES AWARDED PURSUANT TO 11 SECTIONS EIGHT THOUSAND TWO HUNDRED ONE THROUGH EIGHT THOUSAND TWO 12 HUNDRED FOUR AND EIGHT THOUSAND THREE HUNDRED ONE THROUGH EIGHT THOUSAND 13 THREE HUNDRED THREE OF THIS CHAPTER, AND EXCEPT AS OTHERWISE SPECIF- 14 ICALLY PROVIDED BY STATUTE, A COURT SHALL AWARD TO A DEFENDANT WHO AFTER 15 FINAL JUDGMENT IS RENDERED THE PREVAILING PARTY, FEES AND OTHER EXPENSES 16 INCURRED BY SUCH PARTY IN DEFENSE OF SUCH CIVIL ACTION, UNLESS THE COURT 17 FINDS THAT THE POSITION OF THE PLAINTIFF WAS SUBSTANTIALLY JUSTIFIED OR 18 THAT SPECIAL CIRCUMSTANCES MAKE AN AWARD UNJUST. WHETHER THE POSITION OF 19 THE PLAINTIFF WAS SUBSTANTIALLY JUSTIFIED SHALL BE DETERMINED SOLELY ON 20 THE BASIS OF THE RECORD BEFORE THE COURT AND THE ACT, ACTS, OR FAILURE 21 TO ACT THAT GAVE RISE TO THE CIVIL ACTION. FEES SHALL BE DETERMINED 22 PURSUANT TO PREVAILING MARKET RATES FOR THE KIND AND QUALITY OF THE 23 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. LBD04449-01-5 A. 2625 2 1 A PARTY FOR ANY PORTION OF THE LITIGATION IN WHICH THE PARTY HAS UNREA- 2 SONABLY PROTRACTED THE PROCEEDINGS. 3 (B) APPLICATION FOR FEES. A PARTY SEEKING AN AWARD OF FEES AND OTHER 4 EXPENSES SHALL, WITHIN THIRTY DAYS OF FINAL JUDGMENT IN THE ACTION 5 SUBMIT TO THE COURT AN APPLICATION WHICH SETS FORTH (1) THE FACTS 6 SUPPORTING THE CLAIM THAT THE PARTY IS A PREVAILING DEFENDANT AND IS 7 ELIGIBLE TO RECEIVE AN AWARD UNDER THIS SECTION, (2) THE AMOUNT SOUGHT, 8 AND (3) AN ITEMIZED STATEMENT FROM EVERY ATTORNEY OR EXPERT WITNESS FOR 9 WHOM FEES OR EXPENSES ARE SOUGHT STATING THE ACTUAL TIME EXPENDED AND 10 THE RATE AT WHICH SUCH FEES AND OTHER EXPENSES ARE CLAIMED. 11 S 8701. DEFINITIONS. FOR THE PURPOSE OF THIS ARTICLE: 12 (A) "ACTION" MEANS ANY CIVIL ACTION OR PROCEEDING BROUGHT TO SEEK 13 JUDICIAL REVIEW OF AN ACTION INCLUDING AN APPELLATE PROCEEDING. 14 (B) "FEES AND OTHER EXPENSES" MEANS THE REASONABLE EXPENSES OF EXPERT 15 WITNESSES, THE REASONABLE COST OF ANY STUDY, ANALYSIS, CONSULTATION WITH 16 EXPERTS, AND LIKE EXPENSES, AND REASONABLE ATTORNEY FEES, INCLUDING FEES 17 FOR WORK PERFORMED BY LAW STUDENTS OR PARALEGALS UNDER THE SUPERVISION 18 OF AN ATTORNEY INCURRED IN CONNECTION WITH AN ADMINISTRATIVE PROCEEDING 19 AND JUDICIAL ACTION. 20 (C) "FINAL JUDGMENT" MEANS A JUDGMENT THAT IS FINAL AND NOT APPEALA- 21 BLE, AND SETTLEMENT. 22 (D) "PARTY" MEANS (I) AN INDIVIDUAL WHOSE NET WORTH, NOT INCLUDING THE 23 VALUE OF A HOMESTEAD USED AND OCCUPIED AS A PRINCIPAL RESIDENCE, DID NOT 24 EXCEED FIFTY THOUSAND DOLLARS AT THE TIME THE CIVIL ACTION WAS FILED; 25 (II) ANY OWNER OF AN UNINCORPORATED BUSINESS OR ANY PARTNERSHIP, CORPO- 26 RATION, ASSOCIATION, REAL ESTATE DEVELOPER OR ORGANIZATION WHICH HAD NO 27 MORE THAN ONE HUNDRED EMPLOYEES AT THE TIME THE CIVIL ACTION WAS FILED, 28 (III) ANY ORGANIZATION DESCRIBED IN SECTION 501(C)(3) OF THE INTERNAL 29 REVENUE CODE OF 1954 (26 U.S.C. 501(C)(3)) EXEMPT FROM TAXATION UNDER 30 SECTION 501(A) OF SUCH CODE REGARDLESS OF THE NUMBER OF EMPLOYEES. 31 (E) "PREVAILING PARTY" MEANS A DEFENDANT IN THE CIVIL ACTION AGAINST 32 THE PLAINTIFF WHO PREVAILS IN WHOLE OR IN SUBSTANTIAL PART WHERE SUCH 33 PARTY AND THE PLAINTIFF PREVAIL UPON SEPARATE ISSUES. 34 S 8702. INTEREST. IF THE PLAINTIFF APPEALS AN AWARD AND THE AWARD IS 35 AFFIRMED IN WHOLE OR IN PART, INTEREST SHALL BE PAID ON THE AMOUNT OF 36 THE AWARD. SUCH INTEREST SHALL RUN FROM THE DATE OF THE AWARD THROUGH 37 THE DAY BEFORE THE DATE OF THE AFFIRMANCE. 38 S 8703. APPLICABILITY. (A) NOTHING CONTAINED IN THIS ARTICLE SHALL BE 39 CONSTRUED TO ALTER OR MODIFY THE OTHER PROVISIONS OF THIS CHAPTER. 40 (B) NOTHING CONTAINED IN THIS ARTICLE SHALL BE DEEMED TO AUTHORIZE THE 41 INSTITUTION OF A CIVIL ACTION FOR THE SOLE PURPOSE OF OBTAINING FEES 42 INCURRED BY A PARTY TO AN ADMINISTRATIVE PROCEEDING. 43 (C) NOTHING CONTAINED IN THIS ARTICLE SHALL AFFECT OR PRECLUDE THE 44 RIGHT OF ANY PARTY TO RECOVER FEES OR OTHER EXPENSES AUTHORIZED BY 45 COMMON LAW OR BY ANY OTHER STATUTE, LAW OR RULE. 46 S 2. This act shall take effect immediately.