| Swergold v Cuomo |
| 2012 NY Slip Op 07173 [99 AD3d 1141] |
| October 25, 2012 |
| Appellate Division, Third Department |
| Nathaniel M. Swergold, Appellant-Respondent, et al.,Plaintiffs, v Andrew M. Cuomo, as Attorney General of the State of New York, et al.,Defendants, and Thomas P. DiNapoli, as Comptroller of the State of New York, et al.,Respondents-Appellants. (Action No. 1.) In the Matter of Albert A. D'Agostino,Appellant-Respondent, v Thomas P. DiNapoli, as Comptroller of the State of New York, et al.,Respondents-Appellants. (Proceeding No. 1.) In the Matter of David A. Hoover,Appellant-Respondent, v Thomas P. DiNapoli, as Comptroller of the State of New York, et al.,Respondents-Appellants. (Proceeding No. 2.) |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Kate H. Nepveu of counsel), forrespondents-appellants.
Egan Jr., J. (1) Cross appeals from an order of the Supreme Court (Lynch, J.), entered June 3,2011 in Albany County, which, among other things, in two proceedings pursuant to CPLR article78 and an action for declaratory judgment, denied a motion by petitioners and plaintiffs toconsolidate for purposes of a counsel fee award, and (2) appeal from an order of said court,entered September 27, 2011 in Albany County, which, in two proceedings pursuant to CPLRarticle 78 and an action for declaratory judgment, upon reargument, adhered to its prior decision.
In April 2008, defendant/respondent Comptroller announced new regulations fordefendant/respondent New York State and Local Employees' Retirement System that defined[*2]how local governments and school districts should classifyprofessional service providers in terms of being either employees or independent contractors. Asa result of the new regulations, plaintiff Nathaniel M. Swergold and petitioner Albert A.D'Agostino had their memberships in the Retirement System invalidated (see Swergold v Cuomo, 70 AD3d1290 [2010]; Matter of D'Agostinov DiNapoli, 70 AD3d 1285 [2010]), and petitioner David A. Hoover had a portion of hisservice credit revoked (see Matter ofHoover v DiNapoli, 75 AD3d 875 [2010]). Swergold, among others, then commencedaction No. 1, D'Agostino commenced proceeding No. 1 and Hoover commenced proceeding No.2—each seeking reinstatement in the Retirement System or restoration of service credits.
In action No. 1, Supreme Court (Connolly, J.) dismissed all but two of plaintiffs'claims—finding that plaintiffs' second and sixth causes of action alleged sufficient facts toillustrate due process violations—and partially converted those causes of action to a CPLRarticle 78 proceeding. Plaintiffs appealed to this Court and, in the interim, the prior determinationinvalidating plaintiffs' memberships in the Retirement System was revoked. As a result, thisCourt concluded that plaintiffs' due process claims—insofar as they sought restoration ofplaintiffs' benefits pending a hearing—were moot and the balance of plaintiffs' claims werepremature; hence, we dismissed the remaining two causes of action and otherwise affirmed theunderlying order (Swergold v Cuomo, 70 AD3d at 1292-1294).
In proceeding No. 1, Supreme Court (Connolly, J.) granted the petition and annulled theComptroller's determination invalidating D'Agostino's membership in the Retirement System.Concluding that he had received all the relief to which he was entitled, this Court dismissedD'Agostino's subsequent appeal from Supreme Court's judgment (Matter of D'Agostino vDiNapoli, 70 AD3d at 1286). We reached a similar conclusion with respect to Hoover,finding that inasmuch as he had obtained the full relief sought—namely, annulment of theComptroller's determination and reinstatement of his service credits—he was notaggrieved by the underlying judgment. Accordingly, this Court dismissed Hoover's appealtherefrom (Matter of Hoover v DiNapoli, 75 AD3d at 876).
In the interim, in June 2010, plaintiffs and petitioners collectively moved to consolidate thedeclaratory judgment action and CPLR article 78 proceedings for the sole purpose of determiningan appropriate award of counsel fees pursuant to 42 USC § 1988. By order entered June 3,2011, Supreme Court (Lynch, J.) denied the motion to consolidate, finding that inasmuch asaction No. 1 and proceeding No. 1 no longer were pending at the time the motion was made,consolidation was not possible. As to the award of counsel fees, Supreme Court adopted a 30-daytime limit for the filing of that application (citing CPLR 8601 [b]) and concluded that theunderlying application was timely only as to proceeding No. 2. To that end, Supreme Courtawarded Hoover $10,969.51 in fees and expenses for work performed at the trial level but not on[*3]the prior appeal to this Court. Swergold, D'Agostino andHoover then appealed.[FN1]
Shortly thereafter, plaintiffs and petitioners moved to reargue contending, among otherthings, that Supreme Court erred in concluding that the application for counsel fees was untimelyas to Swergold and D'Agostino. Supreme Court considered the merits of the motion and agreedthat, in determining the timeliness of the application, it erroneously measured the 30-day periodfrom the date of this Court's decisions dismissing Swergold's and D'Agostino's respective appealsand, in so doing, failed to take into account that the underlying orders were not "final" untilSwergold's and D'Agostino's right to appeal therefrom expired (see CPLR 5513 [a];5514). However, even under its revised calculation, Supreme Court found the application forcounsel fees to be untimely as to Swergold and D'Agostino. Accordingly, by order enteredSeptember 27, 2011, Supreme Court adhered to its prior decision. Swergold, D'Agostino andHoover (hereinafter collectively referred to as petitioners) appeal from this order as well.
Petitioners initially contend that, with respect to their application for counsel fees under 42USC § 1988, Supreme Court erred in applying the 30-day time limit set forth in the EqualAccess to Justice Act (see CPLR art 86).[FN2] Although we agree, our conclusion in this regard is of no aid to Swergold and only potentiallybenefits D'Agostino.
When a party succeeds on a 42 USC § 1983 claim, "the court, in its discretion, mayallow the prevailing party . . . a reasonable attorney's fee as part of the costs" (42USC § 1988 [b]; see Matter ofGiaquinto v Commissioner of N.Y. State Dept. of Health, 11 NY3d 179, 186[2008]).[FN3] As 42 USC § 1988 contains no time limitation governing the filing of an application forcounsel fees and related expenses, federal courts look to Federal Rules of Civil Procedure rule 54(d) (2) (B) (i), which provides that such application generally must "be filed no later than 14 daysafter the entry of judgment." That time limit, however, "is not a fatal jurisdictional deadline"(Tancredi v Metropolitan Life Ins. Co., 378 F3d 220, 227 [2d Cir 2004]) and may be[*4]supplanted by a statute, local rule or court order (seeFed Rules Civ Pro rule 54 [d] [2] [B] [i]).[FN4] Even in the absence of a contrary statute or local rule, a court may extend the time during whicha party may seek an award of counsel fees upon a finding of "excusable neglect" (Fed Rules CivPro rule 6 [b] [1]), which, in turn, entails consideration of, among other things, the length of andreason for the delay, the potential impact upon judicial resources, prejudice to the opposing partyand whether the party seeking the award of counsel fees acted in good faith (see Tancredi vMetropolitan Life Ins. Co., 378 F3d at 228, citing Pioneer Investment Services Co. vBrunswick Associates Ltd. Partnership, 507 US 380, 395 [1993])—a process akin tothe analysis employed when considering an application for an extension of time under CPLR2004 (see Matter of Burkich, 12AD3d 755, 756 [2004]).
Although the Federal Rules of Civil Procedure indeed are not binding upon thisCourt—or, for that matter, any other state court (see Fed Rules Civ Pro rule1)—in the absence of a corresponding state statute or local rule, we nonetheless deem itappropriate to look to Federal Rules of Civil Procedure rule 54 (d) (2) (B) (i) for guidance inascertaining the time limit to be applied to petitioners' application here. Applying the 14-daylimit contained therein, there is no question that petitioners' application was untimely as toSwergold and D'Agostino. However, the issue of excusable neglect was not addressed by theparties and, hence, was not considered by Supreme Court. Accordingly, we remit for furtherdevelopment of the record and consideration of that issue—but, for the reasons that follow,only with respect to the fees sought by D'Agostino in proceeding No. 1.[FN5]
Counsel fees may be awarded under 42 USC § 1988 (b) to a "prevailing party," and weagree that Swergold does not qualify as one. In this regard, the case law makes clear that "inorder to be considered a prevailing party . . . a plaintiff must not only achieve somematerial alteration of the legal relationship of the parties, but that change must also be judiciallysanctioned" (Roberson v Giuliani, 346 F3d 75, 79-80 [2d Cir 2003] [internal quotationmarks and citation omitted]; accord Perez v Westchester County Dept. of Corrections,587 F3d 143, 149 [2d Cir 2009]; see Buckhannon Board & Care Home, Inc. v West VirginiaDept. of Health & Human Resources, 532 US 598, 605-606 [2001]; Matter of Vetter v Board of Educ.,Ravena-Coeymans-Selkirk Cent. School Dist., 53 AD3d 847, 849 [2008], mod onother grounds 14 NY3d 729[*5][2010]; see also Matter of New York StateDefenders Assn. v New York State Police, 87 AD3d 193, 196 n 3 [2011]). And while itis true that "judicial action other than a judgment on the merits or a consent decree can support anaward of attorney's fees, so long as such action carries with it sufficient judicial imprimatur"(Roberson v Giuliani, 346 F3d at 81), "[a] defendant's voluntary change in conduct,although perhaps accomplishing what the plaintiff sought to achieve by the lawsuit, lacks thenecessary judicial imprimatur on the change" (Buckhannon Board & Care Home, Inc.v West Virginia Dept. of Health & Human Resources, 532 US at 605).
Here, Swergold's success in obtaining the requested relief was based upon the voluntaryactions of the Comptroller and the Retirement System, "which [were] not enforced by a consentdecree or judgment of Supreme Court" (Matter of Vetter v Board of Educ.,Ravena-Coeymans-Selkirk Cent. School Dist., 53 AD3d at 849). Simply put, such "is not thestuff of which legal victories are made" (Hewitt v Helms, 482 US 755, 760 [1987]).Accordingly, Swergold is not entitled to an award of counsel fees under 42 USC § 1988.
Finally, petitioners argue—and the Attorney General concedes—that any sumawarded should include a reasonable fee for services performed in preparing and defending thefee application (see Weyant v Okst, 198 F3d 311, 316 [1999]). Accordingly, uponremittal, Supreme Court should consider this issue as well. Petitioners' remaining contentions, tothe extent not specifically addressed, have been examined and found to be lacking in merit.
Mercure, J.P., Spain, Malone Jr. and Kavanagh, JJ., concur. Ordered that orders aremodified, on the law, without costs, by reversing so much thereof as denied an award of counselfees to petitioner Albert A. D'Agostino and limited the award of counsel fees to petitioner DavidA. Hoover; matter remitted to the Supreme Court for further proceedings not inconsistent withthis Court's decision; and, as so modified, affirmed
Footnote 1: The Comptroller, his office andthe Retirement System initially filed a cross appeal, which they have elected not to pursue.
Footnote 2: The Equal Access to Justice Actauthorizes the recovery of counsel fees and other reasonable expenses in certain actions broughtagainst the state (see CPLR 8600). Any application for such fees and expenses must bebrought within 30 days of the final judgment in the action (see CPLR 8601 [b]).
Footnote 3: The stated basis for theunderlying 42 USC § 1983 claims was the deprivation of petitioners' procedural dueprocess rights.
Footnote 4: It does not appear that theNorthern District of New York has a local rule on point.
Footnote 5: We note in passing that theconcept of "[e]xcusable neglect is intended and has proven to be quite elastic in its application. Inessence it is an equitable concept that must take account of all relevant circumstances of theparty's failure to act within the required time" (Smith v Thebaud, 258 FRD 207, 209 [EDNY 2009] [internal quotation marks and citation omitted]; see Tancredi v Metropolitan LifeIns. Co., 378 F3d at 228).