STATE OF NEW YORK ________________________________________________________________________ 5767 2023-2024 Regular Sessions IN SENATE March 15, 2023 ___________ Introduced by Sen. PARKER -- read twice and ordered printed, and when printed to be committed to the Committee on Investigations and Govern- ment Operations AN ACT to amend the executive law, in relation to providing for awards of attorney's fees in actions under the human rights law The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Subdivision 10 of section 297 of the executive law, as 2 amended by chapter 154 of the laws of 2022, is amended to read as 3 follows: 4 10. In an action or proceeding at law under this section or section 5 two hundred ninety-eight of this article, the commissioner or the court 6 [may in its discretion] shall award reasonable attorney's fees to any 7 prevailing or substantially prevailing [party; provided, however, that a 8 prevailing respondent or defendant in order to recover such reasonable 9 attorney's fees must make a motion requesting such fees and show that 10 the action or proceeding brought was frivolous; and further provided 11 that in a proceeding brought in the division of human rights, the 12 commissioner may only award attorney's fees as part of a final order 13 after a public hearing held pursuant to subdivision four of this 14 section] plaintiff or complainant. In no case shall attorney's fees be 15 awarded to the division, nor shall the division be liable to a prevail- 16 ing or substantially prevailing party for attorney's fees, except in a 17 case in which the division is a party to the action or the proceeding in 18 the division's capacity as an employer. Expert witness fees may be 19 awarded in the same manner as attorney's fees. In cases of employment 20 discrimination, a respondent shall only be liable for attorney's fees 21 under this subdivision if the respondent has been found liable for 22 having committed an unlawful discriminatory practice. [In order to find 23 the action or proceeding to be frivolous, the court or the commissioner 24 must find in writing one or more of the following: EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD06021-01-3
S. 5767 2 1 (a) the action or proceeding was commenced, used or continued in bad 2 faith, solely to delay or prolong the resolution of the litigation or to 3 harass or maliciously injure another; or 4 (b) the action or proceeding was commenced or continued in bad faith 5 without any reasonable basis and could not be supported by a good faith 6 argument for an extension, modification or reversal of existing law. If 7 the action or proceeding was promptly discontinued when the party or 8 attorney learned or should have learned that the action or proceeding 9 lacked such a reasonable basis, the court may find that the party or the 10 attorney did not act in bad faith.] 11 § 2. This act shall take effect immediately.