S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         1998
                              2015-2016 Regular Sessions
                                 I N  A S S E M B L Y
                                   January 13, 2015
                                      ___________
       Introduced by M. of A. DINOWITZ -- read once and referred to the Commit-
         tee 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.   EXPERT
   19  WITNESS FEES MAY BE AWARDED IN THE SAME MANNER AS  ATTORNEY'S  FEES.  In
   20  order to find the action or proceeding to be frivolous, the court or the
   21  commissioner must find in writing one or more of the following:
   22    (a)  the  action or proceeding was commenced, used or continued in bad
   23  faith, solely to delay or prolong the resolution of the litigation or to
   24  harass or maliciously injure another; or
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD00704-01-5
       A. 1998                             2
    1    (b) the action or proceeding was commenced or continued in  bad  faith
    2  without  any reasonable basis and could not be supported by a good faith
    3  argument for an extension, modification or reversal of existing law.  If
    4  the  action  or  proceeding  was promptly discontinued when the party or
    5  attorney  learned  or  should have learned that the action or proceeding
    6  lacked such a reasonable basis, the court may find that the party or the
    7  attorney did not act in bad faith.
    8    S 2. This act shall take effect on the ninetieth day  after  it  shall
    9  have become a law.