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 (Barry
E. Warhit, J.), dated May 11, 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, with costs.
2014, the petitioner, a pregnant inmate, was accepted into
the Nursery Program at Bedford Hills Correctional Facility
(hereinafter the facility), 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. In October 2014, the petitioner was
found guilty of disciplinary infractions. On October 30,
2014, Sabina Kaplan, the Superintendent of the facility,
advised the petitioner that she was withdrawing her approval
for the petitioner to participate in the Nursery Program
"based on [the petitioner's] disciplinary record and
questions regarding [the petitioner's] stability."
The petitioner requested that Kaplan reconsider her decision.
letter dated November 19, 2014, Kaplan stated that
"[b]ased upon the two misbehavior reports received while
in the Nursery, and [the petitioner's] emotional
instability, '' she was "denying [the
petitioner's] appeal for the Nursery Program." On
that same date, the petitioner commenced this CPLR article 78
proceeding against the New York State Department of
Corrections and Community Supervision (hereinafter the
DOCCS), Kaplan, and Anthony Annucci, the Commissioner of the
DOCCS (hereinafter collectively the respondents), inter alia,
to review that determination, and simultaneously filed an
order to show cause seeking a temporary restraining order and
a preliminary injunction mandating that the respondents admit
her to the Nursery Program. The Supreme Court signed the
order to show cause and directed that the petitioner be
admitted to the Nursery Program upon the birth of her child
pending the hearing and determination of the proceeding. On
November 21, 2014, the petitioner gave birth to a baby girl,
and she entered the Nursery Program three days later, on
November 24, 2014.
December 24, 2014, the respondents filed a verified answer
generally denying the material allegations in the petition
and asserting that the decision to remove the petitioner from
the Nursery Program was not arbitrary and capricious. On
December 30, 2014, Kaplan advised the petitioner that based
on the petitioner's "positive adjustment" in
the Nursery, she had decided to "overturn [her] denial
of [the petitioner's] placement in the Nursery."
Kaplan noted that her "approval is contingent upon [the
petitioner's] continued positive adjustment." The
parties subsequently entered into a so-ordered stipulation
dated January 30, 2015, pursuant to which the respondents
"agreed to place Petitioner in the Nursery with all the
rights and privileges accorded to Nursery participants,
" and the petitioner withdrew "her Article 78
Petition in this matter without prejudice to any other claims
she may have."
February 2015, the petitioner moved pursuant to the New York
State Equal Access to Justice Act (CPLR art 86; hereinafter
the State EAJA) for an award of attorneys' fees and
expenses. In an order dated May 11, 2015, the Supreme Court
denied the petitioner's motion on the ground that the
petitioner was not a "prevailing party" under CPLR
8601(a) and 8602(f) because she did not obtain, in large or
substantial part, the relief sought in the petition. The
court rejected her alternative argument that even if the
"catalyst" theory applied to the definition of
prevailing party under the State EAJA, this proceeding was
not the catalyst for the respondents' voluntary decision
to readmit the petitioner into the Nursery Program. The court
further concluded, in any event, that the respondents'
position was substantially justified and special
circumstances made an award unjust. The petitioner appeals.
the State 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]). CPLR 8601(b) provides that
"[a] party seeking an award of fees and other expenses
shall, within thirty days of final judgment in the action,
submit to the court an application which sets forth (1) the
facts supporting the claim that the party is a prevailing
party and is eligible to receive an award under this section,
(2) the amount sought, and (3) an itemized statement from
every attorney or expert witness for whom fees or expenses
are sought stating the actual time expended and the rate at
which such fees and other expenses are claimed."
"CPLR article 86 is in derogation of the common law and
therefore should be strictly construed" (Matter of
Sin Hang Lee v Higgins, 213 A.D.2d 553, 553-554; see
Matter of Rivers v Corron, 222 A.D.2d 863, 864).
State EAJA was enacted to "improv[e] access to justice
for individuals and businesses who may not have the resources
to sustain a long legal battle against an agency that is
acting without justification, " and was intended to
"provid[e] recompense for the cost of correcting
official error . . . as long as it is limited to helping
those who need assistance, it does not deter State agencies
from pursuing legitimate goals and it contains adequate
restraints on the amount of fees awarded"
(Governor's Approval Mem., Bill Jacket, L 1989, ch 770 at
20; see Matter of New York State Clinical Lab. Assn. v
Kaladjian, 85 N.Y.2d 346, 351). "The State EAJA was
modeled on the Federal Equal Access to Justice Act 'and
the significant body of case law that has evolved
thereunder'" (Matter of New York State Clinical
Lab. Assn. v Kaladjian, 85 N.Y.2d at 351 [citation
omitted], quoting CPLR 8600; see Matter of Mitchell v
Bane, 218 A.D.2d 537, 540).
conclude that the Supreme Court properly determined that the
petitioner was not a "prevailing party" under CPLR
8601(a) and 8602(f), albeit for a different reason. Contrary
to the petitioner's contention, the stipulation entered
into between the parties on January 30, 2015, which was
so-ordered by the court, did not reflect a material change in
the legal relationship between the parties because the
petitioner's claims had already been rendered moot by
Kaplan's voluntary decision on December 30, 2014, to
vacate her earlier decision removing the petitioner from the
Nursery Program (see Murrin v Ford Motor Co., 303
A.D.2d 475; Pastore v Sabol,230 A.D.2d 835, 836;
see also Texas State Teachers Assn. v Garland Independent
School Dist.,489 U.S. 782, 792-793; Ma v
Chertof547 F.3d 342, 344 [2d Cir]; Elliott v U.S.
Dep't of State, 122 F.Supp 3d 39, 43 [SD NY]).
Furthermore, the petitioner did not achieve prevailing party
status by obtaining a temporary restraining order and a