STATE OF NEW YORK
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1860
2011-2012 Regular Sessions
IN ASSEMBLY
January 12, 2011
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Introduced by M. of A. DINOWITZ, WEINSTEIN, LANCMAN -- read once and
referred to the Committee on Judiciary
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 added by section 17 of part D of chapter 405 of the laws of 1999, is
3 amended to read as follows:
4 10. [With respect to cases of housing discrimination only, in] In an
5 action or proceeding at law under this section or section two hundred
6 ninety-eight of this article, the commissioner or the court may in its
7 discretion award reasonable attorney's fees to any prevailing or
8 substantially prevailing party; provided, however, that a prevailing
9 respondent or defendant in order to recover such reasonable attorney's
10 fees must make a motion requesting such fees and show that the action or
11 proceeding brought was frivolous; and further provided that in a
12 proceeding brought in the division of human rights, the commissioner may
13 only award attorney's fees as part of a final order after a public hear-
14 ing held pursuant to subdivision four of this section. In no case shall
15 attorney's fees be awarded to the division, nor shall the division be
16 liable to a prevailing or substantially prevailing party for attorney's
17 fees, except in a case in which the division is a party to the action or
18 the proceeding in the division's capacity as an employer. With respect
19 to cases of employment discrimination only, the award of attorney's fees
20 will be limited to those cases in which the employer has fifty or more
21 employees. Expert witness fees may be awarded in the same manner as
22 attorney's fees. In order to find the action or proceeding to be frivo-
23 lous, the court or the commissioner must find in writing one or more of
24 the following:
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD04501-01-1
A. 1860 2
1 (a) the action or proceeding was commenced, used or continued in bad
2 faith, solely to delay or prolong the resolution of the litigation or to
3 harass or maliciously injure another; or
4 (b) the action or proceeding was commenced or continued in bad faith
5 without any reasonable basis and could not be supported by a good faith
6 argument for an extension, modification or reversal of existing law. If
7 the action or proceeding was promptly discontinued when the party or
8 attorney learned or should have learned that the action or proceeding
9 lacked such a reasonable basis, the court may find that the party or the
10 attorney did not act in bad faith.
11 § 2. This act shall take effect on the ninetieth day after it shall
12 have become a law.
