S T A T E   O F   N E W   Y O R K
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                                  1860

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                            January 12, 2011
                               ___________

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:

  Section 1. Subdivision 10 of section 297  of  the  executive  law,  as
added  by  section  17  of part D of chapter 405 of the laws of 1999, is
amended to read as follows:
  10. [With respect to cases of housing discrimination only, in]  IN  an
action  or  proceeding  at law under this section or section two hundred
ninety-eight of this article, the commissioner or the court may  in  its
discretion  award  reasonable  attorney's  fees  to  any  prevailing  or
substantially prevailing party; provided,  however,  that  a  prevailing
respondent  or  defendant in order to recover such reasonable attorney's
fees must make a motion requesting such fees and show that the action or
proceeding brought  was  frivolous;  and  further  provided  that  in  a
proceeding brought in the division of human rights, the commissioner may
only award attorney's fees as part of a final order after a public hear-
ing  held pursuant to subdivision four of this section. In no case shall
attorney's fees be awarded to the division, nor shall  the  division  be
liable  to a prevailing or substantially prevailing party for attorney's
fees, except in a case in which the division is a party to the action or
the proceeding in the division's capacity as an employer.  WITH  RESPECT
TO CASES OF EMPLOYMENT DISCRIMINATION ONLY, THE AWARD OF ATTORNEY'S FEES
WILL  BE  LIMITED TO THOSE CASES IN WHICH THE EMPLOYER HAS FIFTY OR MORE
EMPLOYEES. EXPERT WITNESS FEES MAY BE AWARDED  IN  THE  SAME  MANNER  AS
ATTORNEY'S  FEES. In order to find the action or proceeding to be frivo-
lous, the court or the commissioner must find in writing one or more  of
the following:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD04501-01-1

              

A. 1860                             2

  (a)  the  action or proceeding was commenced, used or continued in bad
faith, solely to delay or prolong the resolution of the litigation or to
harass or maliciously injure another; or
  (b)  the  action or proceeding was commenced or continued in bad faith
without any reasonable basis and could not be supported by a good  faith
argument  for an extension, modification or reversal of existing law. If
the action or proceeding was promptly discontinued  when  the  party  or
attorney  learned  or  should have learned that the action or proceeding
lacked such a reasonable basis, the court may find that the party or the
attorney did not act in bad faith.
  S 2. This act shall take effect on the ninetieth day  after  it  shall
have become a law.