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Memorandum of Support

Empire Justice Memo of Support : Amend CPLR 8602 to Define “Prevailing Party”

A.3264 (Schimminger)/S.5131 (Grisanti)

This bill would amend the definition of "prevailing party" in CPLR § 8602(f) to include "a party whose pursuit of a non-frivolous claim was a catalyst for a voluntary or unilateral change in position by the opposing party that provides any significant part of the relief sought."

This bill would provide important protection against a line of cases that began with a U.S. Supreme Court ruling in 2001 (Buckhannon v. West Virginia Dept. of Health and Human Services, 532 US 598, 1221 S. Ct. 1835), which  significantly limited the availability of attorneys fees under the Equal Access to Justice Act.  Simply stated, the courts no longer find these litigants to be the "prevailing party" entitled to attorney's fees where the case settles at any time prior to a final judgment. Prior to Buckhannon, courts generally agreed that a party “prevailed” for purposes of an attorney’s fee application if the ends of the litigation were “accomplished as a result of the litigation,” even if the “legal action stopped short of final judgment…due to intervening mootness.” Buckhannon at  1852, Ginsburg, J. dissenting with whom Justice Stevens, Souter and Breyer join).

The Appellate Division, First Department promptly applied the catalyst theory to State Court actions in Auguste v. Hammons, 285 A.D. 2d 417,433 (2001)[1]   Despite an amicus plea from the New York State Bar Association and several other organizations, the Court of Appeals has declined, so far to address the issue. Wittlinger v. Wing, 99 N.Y. 2d 234 (2003).
There is no doubt that these cases have had a chilling effect on litigation in which fees could be authorized under CPLR Article 86. In 2007-2008, there were no fees awarded under Article 86 of the CPLR.[2]   Given the murky state of the law and the lack of an authoritative holding as to whether the catalyst theory applies under Article 86 of the CPLR, it is critical that the legislature act to preserve access to justice. The Buckhannon rule is particularly harmful to non-profit law firms such as the Empire Justice Center, which rely heavily on attorneys fees to fund the work that they do, and private attorneys who would take these claims if they could seek fees if they prevailed. Ultimately, the absence of attorneys willing to bring such actions against state agencies negates the efficiency of the Equal Access to Justice Act in tempering illegal state action and allowing small businesses, not-for-profit groups and people of modest means to fight back.[3]

This bill would remedy this problem by amending New York State law to award attorney's fees in actions where the pursuit of litigation has acted as a "catalyst for a voluntary or unilateral change in position by the opposing party  that provides any significant part of the relief sought."   This provision mirrors the proposed Civil Rights Act of 2008 [S. 2554  available at  H.R. 5129, which was introduced by Senator Kennedy and co-sponsored by both New York State Senators and the current President of the United States who was then a Senator from Illinois. It also mirrors the language in New York City’s “Local Civil Rights Restoration Act of 2005" [Local Law 85 of the Laws of 2005]. 

The Empire Justice Center strongly supports this legislation which would restore access to justice by clarifying that New York State’s EAJA permits an award of fees to a parties who have prevailed because their litigation that was the catalyst for the change sought in the complaint, and rejecting the application of the Supreme Court decision in Buckhannon to Article 86 fee requests in New York State Courts.

End Notes 

(1)  The Second and Third Departments cite the Auguste case in extending the Buckhannon holding to attorneys’ fees cases in State Court as well, the state was not a defendant in either case. In  Vetter v. Board of Education, 53 A.D. 3d 847 (Third Dep’t 2008) the fee claim arose under the federal fee generating statute to which Buckhannon applies, and the other case, an automobile warranty case,  was not an action against the state. Murrin v. Ford Motor Company, 303 A.D. 2d 475 Second Dep’t 2003).  The Erie County Supreme Court preserved the catalyst theory where there was an enforceable settlement agreement, concluding that Buckhannon did not apply in this situation.  Wright v. NYS Office of Children and Family Services, 2003 WL 21665633.

(2)  Letter from Joan M. Sullivan Executive Deputy Comptroller for Operation, Office of the New York State Comptroller to Hon. Dean G. Skelos, Majority Leader of the New York State Senate dated 9/30/2008, and on file with the author of this memo.

(3)  A. Chan, The Buckhannon Stops here: Buckhannon (full title omitted) Should not apply to the New York Equal Access to Justice Act. 72 Fordham Law Review 1341, 1374 (2004).

(4)  Section 412 of both bills would have added § 9 to Title 1 of the U.S. Code [1 USC § 9] to read as follows:

(a) In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, or of any judicial or administrative rule, which provides for the recovery of attorney's fees, the term `prevailing party' shall include, in addition to a party who substantially prevails through a judicial or administrative judgment or order, or an enforceable written agreement, a party whose pursuit of a nonfrivolous claim or defense was a catalyst for a voluntary or unilateral change in position by the opposing party that provides any significant part of the relief sought (emphasis supplied).
(b) Section 8 of Local Law 85 of the Laws of 2005 amended § 8-502(f) of the New York City Administrative Code to read as follows:

f. In any civil action commenced pursuant to this section, the court, in its discretion, may award the prevailing party costs and reasonable attorney's fees. For the purposes of this subdivision, the term "prevailing" includes a plaintiff whose commencement of litigation has acted as a catalyst to effect policy change on the part of the defendant, regardless of whether that change has been implemented voluntarily, as a result of a settlement or as a result of a judgment in such plaintiff’s favor. (New material underlined.)

This memo was prepared by:

Susan C. Antos

Empire Justice Center
119 Washington Avenue
Albany, NY  12210 

(518) 462-6831
(518) 935-2852