2019-2020 Regular Sessions
                    IN SENATE
                                      March 1, 2019
        Introduced  by  Sen.  BIAGGI -- read twice and ordered printed, and when
          printed to be committed to the Committee on Investigations and Govern-
          ment Operations
        AN ACT to amend the executive law, in  relation  to  providing  for  the
          award of attorney's fees and expert witness fees in appropriate cases
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
     1    Section 1. Subdivision 10 of section 297  of  the  executive  law,  as
     2  amended  by  chapter  364  of  the  laws  of 2015, is amended to read as
     3  follows:
     4    10. [With respect to all cases of housing discrimination  and  housing
     5  related  credit  discrimination  in]  In  an action or proceeding at law
     6  under this section or section two hundred ninety-eight of this  article,
     7  the  commissioner  or  the  court may in its discretion award reasonable
     8  attorney's fees to any prevailing or substantially prevailing party; and
     9  with respect to a claim of employment or credit discrimination where sex
    10  is a basis of such discrimination, in an action  or  proceeding  at  law
    11  under  this section or section two hundred ninety-eight of this article,
    12  the commissioner or the court may in  its  discretion  award  reasonable
    13  attorney's  fees  attributable  to  such  claim to any prevailing party;
    14  provided, however, that a prevailing respondent or defendant in order to
    15  recover such reasonable attorney's fees must make  a  motion  requesting
    16  such  fees and show that the action or proceeding brought was frivolous;
    17  and further provided that in a proceeding brought  in  the  division  of
    18  human rights, the commissioner may only award attorney's fees as part of
    19  a  final  order after a public hearing held pursuant to subdivision four
    20  of this section. In no case shall attorney's  fees  be  awarded  to  the
    21  division,  nor  shall the division be liable to a prevailing or substan-
    22  tially prevailing party for attorney's fees, except in a case  in  which
    23  the  division  is  a  party to the action or the proceeding in the divi-
    24  sion's capacity as an employer. Expert witness fees may  be  awarded  in
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        S. 4129                             2
     1  the  same  manner  as  attorney's fees. In cases of employment discrimi-
     2  nation, a respondent shall only be liable for attorney's fees under this
     3  subdivision if the respondent has been found liable for having committed
     4  an  unlawful  discriminatory  practice.   In order to find the action or
     5  proceeding to be frivolous, the court or the commissioner must  find  in
     6  writing one or more of the following:
     7    (a)  the  action or proceeding was commenced, used or continued in bad
     8  faith, solely to delay or prolong the resolution of the litigation or to
     9  harass or maliciously injure another; or
    10    (b) the action or proceeding was commenced or continued in  bad  faith
    11  without  any reasonable basis and could not be supported by a good faith
    12  argument for an extension, modification or reversal of existing law.  If
    13  the  action  or  proceeding  was promptly discontinued when the party or
    14  attorney learned or should have learned that the  action  or  proceeding
    15  lacked such a reasonable basis, the court may find that the party or the
    16  attorney did not act in bad faith.
    17    §  2.  This  act shall take effect on the ninetieth day after it shall
    18  have become a law.