S T A T E   O F   N E W   Y O R K
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                                  5874

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                              June 18, 2013
                               ___________

Introduced  by Sen. LITTLE -- (at request of the Governor) -- read twice
  and ordered printed, and when printed to be committed to the Committee
  on Rules

AN ACT to amend the executive law,  in  relation  to  the  provision  of
  attorney's  fees  in  cases of housing, employment or credit discrimi-
  nation; to amend the executive law, in relation  to  the  awarding  of
  reasonable attorney's fees

  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 ALL cases of HOUSING  DISCRIMINATION  AND  housing
RELATED  CREDIT  discrimination [only] 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; AND
WITH RESPECT TO A CLAIM OF EMPLOYMENT OR CREDIT DISCRIMINATION WHERE SEX
IS A BASIS OF SUCH DISCRIMINATION, 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  ATTRIBUTABLE  TO  SUCH  CLAIM TO ANY 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 hearing 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 substan-
tially prevailing party for attorney's fees, except in a case  in  which

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD12051-01-3
              

S. 5874                             2

the  division  is  a  party to the action or the proceeding in the divi-
sion's capacity as an employer.  IN CASES OF EMPLOYMENT  DISCRIMINATION,
A  RESPONDENT SHALL ONLY BE LIABLE FOR ATTORNEY'S FEES UNDER THIS SUBDI-
VISION  IF  THE RESPONDENT HAS BEEN FOUND LIABLE FOR HAVING COMMITTED AN
UNLAWFUL DISCRIMINATORY  PRACTICE.  In  order  to  find  the  action  or
proceeding  to  be frivolous, the court or the commissioner must find in
writing one or more of the following:
  (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. Paragraph c of subdivision 7 of section 296-a  of  the  executive
law,  as  amended by chapter 632 of the laws of 1976, is amended to read
as follows:
  c. If the superintendent finds that a violation of  this  section  has
occurred,  the superintendent shall issue an order which shall do one or
more of the following:
  (1) impose a fine in an amount not to exceed ten thousand dollars  for
each violation, to be paid to the people of the state of New York;
  (2)  award  compensatory  damages  to  the  person  aggrieved  by such
violation;
  (3) FOR A CLAIM OF SEX DISCRIMINATION ONLY,  AWARD  REASONABLE  ATTOR-
NEY'S FEES ATTRIBUTABLE TO SUCH CLAIM TO ANY 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. IN NO CASE
SHALL  ATTORNEY'S  FEES  BE  AWARDED  TO  THE  DEPARTMENT, NOR SHALL THE
DEPARTMENT BE LIABLE TO A PREVAILING PARTY FOR ATTORNEY'S FEES. IN ORDER
TO FIND THE ACTION OR PROCEEDING TO  BE  FRIVOLOUS,  THE  SUPERINTENDENT
MUST FIND IN WRITING ONE OR MORE OF THE FOLLOWING:
  (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.
  (4)  require  the  regulated  creditor  to  cease and desist from such
unlawful discriminatory practices;
  [(4)] (5) require the regulated creditor to take such further affirma-
tive action as will effectuate the purposes of this section,  including,
but  not  limited  to,  granting the credit which was the subject of the
complaint.
  S 3. Severability clause. If any clause, sentence, paragraph, subdivi-
sion, section or part of this act shall be adjudged by a court of compe-
tent jurisdiction to be invalid, such judgment shall not affect,  impair
or invalidate the remainder thereof, but shall be confined in its opera-

S. 5874                             3

tion  to  the  clause, sentence, paragraph, subdivision, section or part
thereof directly involved in the  controversy  in  which  such  judgment
shall  have been rendered. It is hereby declared to be the intent of the
legislature  that  this act would have been enacted even if such invalid
provisions had not been included herein.
  S 4. This act shall take effect on the ninetieth day  after  it  shall
have become a law, and shall apply to actions commenced on or after such
date.