99 A.D.3d 1141
N.Y. App. Div.2012Background
- In April 2008, NYS Comptroller issued regulations classifying professional service providers for NYSERS, invalidating Swergold and D’Agostino’s memberships and revoking part of Hoover’s service credits.
- Swergold, D’Agostino, and Hoover filed actions seeking reinstatement or restoration of credits; proceeding No. 1 and No. 2 were consolidated for related relief.
- Supreme Court dismissed most claims but found two due-process claims viable, converting them to CPLR article 78; on appeal this Court held the prior memberships’ invalidation moot and other claims premature.
- Interim dispositions: D’Agostino’s membership annulled; Hoover’s credits reinstated; Swergold’s and others’ appeals were deemed non-grievable by this Court.
- In 2010–2011, the parties moved to consolidate declaratory judgment and CPLR 78 proceedings for 42 USC §1988 counsel fees; Supreme Court denied consolidation and set a 30-day filing deadline, awarding Hoover fees but denying others.
- On reargument, Supreme Court reaffirmed untimeliness for Swergold and D’Agostino, and the petitioners appealed; the court ultimately remanded for further consideration of excusable neglect and narrowed fee awards.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 30-day ETJA limit applies to 42 USC §1988 fee petitions | Swergold and D’Agostino contend ETJA-based limit is inapplicable. | State argues the 30-day limit governs fee petitions. | 30-day limit applies; untimely for Swergold and D’Agostino. |
| Whether Swergold qualifies as a prevailing party under §1988 | Swergold achieved relief via agency action, constituting prevailing party status. | No judicially sanctioned alteration; no prevailing party status. | Swergold not a prevailing party; no fee award under §1988. |
| Whether D’Agostino is entitled to any §1988 fees and whether excusable neglect should apply | D’Agostino seeks fees notwithstanding untimeliness; excusable neglect should reset deadline. | Untimeliness stands; excusable neglect not properly addressed. | Remand for excusable neglect analysis; potential award narrowed to proceeding No. 1 for D’Agostino. |
| Appropriate scope of counsel fee awards and remand directives | Petitioners seek broader counsel fee recovery for all petitioners where warranted. | Limit awards to recoverable, timely amounts; require further proceedings. | Court modified to permit limited awards (notably for Hoover) and remanded for further fee determinations consistent with the decision. |
Key Cases Cited
- Roberson v Giuliani, 346 F.3d 75 (2d Cir. 2003) (prevailing party requires judicial imprimatur; voluntary change lacking remedy not a victory)
- Perez v Westchester County Dept. of Corrections, 587 F.3d 143 (2d Cir. 2009) (further clarifies prevailing party concept under §1988)
- Buckhannon Board & Care Home, Inc. v West Virginia Dept. of Health & Human Resources, 532 U.S. 598 (2001) (judicial imprimatur required for fee recovery)
- Matter of Vetter v Board of Educ., Ravena-Coeymans-Selkirk Cent. School Dist., 53 AD3d 847 (2010) (modification of awards; relevance to fee determinations)
- Matter of Giaquinto v Commissioner of N.Y. State Dept. of Health, 11 N.Y.3d 179 (2008) (state-level precedent on attorney fees under §1988)
- Tancredi v Metropolitan Life Ins. Co., 378 F.3d 220 (2d Cir. 2004) (excusable neglect standard and extension considerations)
- Weyant v Okst, 198 F.3d 311 (2d Cir. 1999) (fee award considerations for §1988 applications)
- Smith v Thebaud, 258 F. Supp. 2d 207 (ED NY 2009) (elastic concept of excusable neglect in time extensions)