S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   4688
 
                        2017-2018 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 3, 2017
                                ___________
 
 Introduced by M. of A. O'DONNELL, SIMON -- read once and referred to the
   Committee on Governmental Operations
 
 AN  ACT  to amend the executive law, in relation to providing for awards
   of attorney's fees in actions under the human rights law
 
   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
 amended by chapter 364 of the laws  of  2015,  is  amended  to  read  as
 follows:
   10.  [With  respect to all cases of housing discrimination and housing
 related credit 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  attor-
 ney'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]  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] SHALL 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] PLAINTIFF OR COMPLAINANT.  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  attor-
 ney'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.  In
 cases  of  employment  discrimination, a respondent shall only be liable
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD06685-01-7

 A. 4688                             2
 
 for attorney's fees under this subdivision 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.]
   § 2. This act shall take effect immediately.