Submitted-May 4, 2017
Weiss, Rifkind, Wharton & Garrison LLP, New York, NY
(Jeremy A. Benjamin and Mary C. Spooner of counsel), and
Seymour W. James, Jr., New York, NY (Dori A. Lewis and
Caroline Hsu of counsel), for appellant (one brief filed).
T. Schneiderman, Attorney General, New York, NY (Anisha S.
Dasgupta and Claude S. Platton of counsel), for respondents.
REINALDO E. RIVERA, J.P. SANDRA L. SGROI ROBERT J. MILLER
VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
from an order of the Supreme Court, Westchester County
(Barbara G. Zambelli, J.), entered September 1, 2015. The
order denied the petitioner's motion pursuant to CPLR
8601 for an award of attorneys' fees and expenses.
that the order is affirmed, without costs or disbursements.
17, 2014, the petitioner, a pregnant inmate, applied for
admission to the Nursery Program at the Bedford Hills
Correctional Facility (hereinafter Bedford Hills), which
allows for an inmate who gives birth while incarcerated to
remain with her newborn child in the facility's nursery
for up to 18 months after the child's birth. On July 23,
2014, the petitioner's application was denied. The
petitioner submitted an appeal of that determination to the
respondent Sabina Kaplan, the Superintendent of Bedford
Hills. On July 28, 2014, the petitioner gave birth to a baby
boy. The next day, Kaplan notified the petitioner's
attorney that she was affirming the denial of the
petitioner's application for admission to the Nursery
Program. Kaplan emphasized that her decision was based upon
the petitioner's lengthy history with Child Protective
Services, "which resulted in [the petitioner's] two
oldest [children] being put up for adoption, and giving up
parental rights to her two youngest children, due to her
admitted inability to properly care for them."
30, 2014, the petitioner commenced this CPLR article 78
proceeding against the respondents, the New York State
Department of Corrections and Community Supervision
(hereinafter DOCCS), Kaplan, and Anthony Annucci,
Commissioner of DOCCS, inter alia, to review the
determination dated July 29, 2014. The petitioner
simultaneously filed an order to show cause seeking a
preliminary injunction and temporary restraining order
"mandating Respondents to admit [her] and her newborn
son to the Nursery Program." In an order dated August 1,
2014, the Supreme Court granted the petitioner a temporary
restraining order pending the determination of the
proceeding. Thereafter, in a judgment dated February 26,
2015, the court granted the petition, annulled the
respondents' determination, and directed the respondents
"to maintain petitioner and her child in the Nursery
Program in accordance with the dictates of Correction[ ] Law
§ 611(2) and the rules of the Program itself." The
court held that the respondents' determination to deny
the petitioner's application lacked a rational basis.
March 2015, the petitioner moved pursuant to the New York
State Equal Access to Justice Act (CPLR art 86; hereinafter
the EAJA) for an award of attorneys' fees and expenses.
In an order dated August 31, 2015, the Supreme Court denied
the petitioner's motion on the grounds that the
respondents' decision to deny her application for
admission to the Nursery Program was "substantially
justified" and that "special circumstances make an
award unjust" (CPLR 8601 [a]). The petitioner appeals.
the EAJA, "a court shall award to a prevailing party,
other than the state, fees and other expenses incurred by
such party in any civil action brought against the state,
unless the court finds that the position of the state was
substantially justified or that special circumstances make an
award unjust" (CPLR 8601 [a]). An award of
attorneys' fees under the EAJA is generally left to the
sound discretion of the Supreme Court (see Matter of
Graves v Doar, 87 A.D.3d 744, 746; Matter of
Priester v Dowling, 231 A.D.2d 638, 639). "The
determination of whether the State's position was
substantially justified is committed to the sound discretion
of the court of first instance and is reviewable as an
exercise of judicial discretion" (Matter of Simpkins
v Riley, 193 A.D.2d 1009, 1010-1011; see Matter of
Motor Network, Ltd. v Martinez, 29 A.D.3d 911, 912).
the circumstances of this case, the Supreme Court did not
improvidently exercise its discretion in concluding that the
respondents' position was substantially justified,
notwithstanding the court's underlying conclusion that
the respondents' determination to deny the
petitioner's application for admission to the Nursery
Program should be annulled (see Matter of Motor Network,
Ltd. v Martinez, 29 A.D.3d at 912; Matter of Shah v
DeBuono, 257 A.D.2d 256, 260, affd, 95 N.Y.2d
148). In particular, the evidence in support of the
respondents' position would satisfy a reasonable person
that it was not "desirable for the welfare of [the]
child" to remain with the petitioner for purposes of the
EAJA (Correction Law § 611 ; see Matter of
Sutherland v Glennon, 256 A.D.2d 984, 986; Matter of
McCrimmon v Dowling, 247 A.D.2d 620, 621-622). Contrary
to the petitioner's contention, although the court found
that the respondents failed to consider certain factors,
including the petitioner's current achievements and the
supervised nature of the Nursery Program, there was no
evidence in the record that the respondents "willfully
ignored" those factors. Moreover, this is not a case
where the respondents failed to conduct any assessment as to
whether the subject child's welfare would best be served
by remaining with the petitioner (cf Matter of Duarte v
City of New York, 91 A.D.3d 778, 778-779).
the Supreme Court properly denied the petitioner's motion
pursuant to CPLR 8601 for an award of attorneys' fees and
expenses. In light of our determination, we ...