First Department, March 5, 2013

APPEARANCES OF COUNSEL

South Brooklyn Legal Services, Brooklyn (Peter A. Kempner and John C. Gray of counsel), for appellant.

Eric T. Schneiderman, Attorney General, New York City (Sudarsana Srinivasan and Michael S. Belohlavek of counsel), for state respondent. [*2]

Michael A Cardozo, Corporation Counsel, New York City (Diana Lawless and Larry A. Sonnenshein of counsel), for city respondents.

Law Office of Peter Vollmer, Sea Cliff (Peter Vollmer of counsel), for amicus curiae.

Mazzarelli, J.P.

Eleven years ago, in Matter of Auguste v Hammons (285 AD2d 417 [1st Dept 2001]), this Court held that when a person commences an action or proceeding against the State, and the State moots the action by voluntarily granting the relief sought, the State Equal Access to Justice Act (State EAJA) (CPLR 8600 et seq.) does not entitle the person to recover attorneys' fees under the theory that the lawsuit was the "catalyst" for the favorable state action. The holding was wholly based on Buckhannon Board & Care Home, Inc. v West Virginia Dept. of Health & Human Resources (532 US 598 [2001]), which was decided by the{**106 AD3d at 82} United States Supreme Court after Auguste had been argued to this Court. In Buckhannon, the Court was not interpreting the State EAJA, or even its federal counterpart, the Federal Equal Access to Justice Act (Federal EAJA) (28 USC § 2412 [d]). Rather, it was reviewing fee-shifting provisions in two antidiscrimination statutes, and it held that an award of attorneys' fees may not be made under the "catalyst theory," because for a party to be considered a "prevailing party" the recovery must have been judicially sanctioned. This holding upended decisions of virtually all of the federal circuit courts, which had long applied the catalyst theory in awarding attorneys' fees.

Because Auguste was briefed and argued to this Court before Buckhannon was decided, the parties assumed that the catalyst theory applied to the State EAJA. As a result, and as suggested by the lack of discussion of the issue in our short memorandum decision, it appears that this Court was not focused on the qualitative differences between the two statutes. Relying on the fact that the State EAJA was explicitly intended to be "similar" to the Federal EAJA (CPLR 8600), this Court strictly applied the Buckhannon holding. Since Auguste was decided, this Court has only had occasion to cite it once, in Matter of Wittlinger v Wing (289 AD2d 171 [1st Dept 2001], affd 99 NY2d 425 [2003]). However, in Wittlinger, unlike in the instant case, this Court also found that the State's position was substantially justified, so an award of attorneys' fees would have been denied regardless. Notably, in affirming Wittlinger, the Court of Appeals, although presented with the opportunity to declare that, in light of Buckhannon, the State EAJA does not embrace the catalyst theory expressly declined to do so, stating that "we neither endorse nor repudiate" the theory (99 NY2d at 433).

Now we are once again presented with the opportunity to determine whether Buckhannon controls the State EAJA. After careful analysis and consideration, we decline to follow Auguste. There is no evidence to suggest that the New York State Legislature, in enacting the State EAJA, ever intended to eliminate attorneys' fee awards under the catalyst theory. In fact, ample [*3]evidence supports the contrary conclusion. The legislature intended the statute to be applied as the federal law was interpreted at the time the State EAJA was enacted, and, in any event, the application of the Federal EAJA to the State EAJA was not meant to be all encompassing.

In this case, on September 16, 2010, the city respondents issued a notice of decision to petitioner, a disabled person, reducing{**106 AD3d at 83} the amount of the "[r]estricted shelter payment" component of petitioner's public assistance benefits by approximately $200 per month. Petitioner requested a fair hearing before the New York State Office of Temporary and Disability Assistance (OTDA) to challenge this reduction. At the hearing, the Human Resources Administration stipulated to withdraw its notice of decision and to restore any lost benefits. OTDA thereafter issued a decision after fair hearing (DAFH) ordering the city respondents to withdraw the September 16, 2010 notice of decision and restore petitioner's benefits, retroactive to the date of the action reducing the benefits. However, the city respondents failed to comply with the DAFH.

Thus, petitioner commenced this CPLR article 78 proceeding seeking enforcement of the DAFH and attorneys' fees under the State EAJA. Two weeks later, the city respondents complied with the DAFH and retroactively restored petitioner's shelter allowance benefits. Respondents then moved to dismiss the proceeding on mootness grounds.

The article 78 court dismissed the petition as moot. It also denied petitioner's application for attorneys' fees. Noting that she had not obtained an enforceable judgment, the court rejected petitioner's assertion that she was a prevailing party under the catalyst theory. While the court found that petitioner's article 78 proceeding was "undoubtedly" the catalyst for respondents' eventual compliance with the DAFH, that respondents' delay was arbitrary, and that the petition "was the only way left for [petitioner] to get their attention after being ignored for months," it held that this did not make petitioner a prevailing party under New York law in light of Auguste.

CPLR 8600 provides as follows:

"It is the intent of this article, which may hereafter be known and cited as the 'New York State Equal Access to Justice Act', to create a mechanism authorizing the recovery of counsel fees and other reasonable expenses in certain actions against the state of New York, similar to the provisions of federal law contained in 28 U.S.C. § 2412(d) and the significant body of case law that has evolved thereunder" (footnote omitted).

CPLR 8601, the operative section of the statute, provides as follows:

"Fees and other expenses in certain actions against the state{**106 AD3d at 84}

"(a) When awarded. In addition to costs, disbursements and additional allowances awarded pursuant to sections eight thousand two hundred one through eight thousand two hundred four and eight thousand three hundred one through eight thousand three hundred three of this chapter, and except as otherwise specifically [*4]provided by statute, 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. Whether the position of the state was substantially justified shall be determined solely on the basis of the record before the agency or official whose act, acts, or failure to act gave rise to the civil action. Fees shall be determined pursuant to prevailing market rates for the kind and quality of the services furnished, except that fees and expenses may not be awarded to a party for any portion of the litigation in which the party has unreasonably protracted the proceedings.

"(b) Application for fees. 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."

The term "prevailing party" is defined as "a plaintiff or petitioner in the civil action against the state who prevails in whole or in substantial part where such party and the state prevail upon separate issues" (CPLR 8602 [f]). " 'Final judgment' means a judgment that is final and not appealable, and settlement" (CPLR 8602 [c]).

When interpreting any statute, this Court is required, first and foremost, to give effect to the intent of the legislature (see Patrolmen's Benevolent Assn. of City of N.Y. v City of New York, 41 NY2d 205, 208 [1976]). "Generally, inquiry must be made of the spirit and purpose of the legislation, which requires examination{**106 AD3d at 85} of the statutory context of the provision as well as its legislative history" (Matter of Sutka v Conners, 73 NY2d 395, 403 [1989]). The "spirit and purpose" of the State EAJA are clear. The legislature desired to level the playing field for those without the necessary resources to challenge state action through litigation. Indeed, the sponsoring memorandum stated that the purpose behind the bill was "[t]o encourage individuals, small businesses and not-for-profit corporations to challenge State action when it lacks substantial justification by allowing them to recover fees and litigation expenses" (Sponsor's Mem, Bill Jacket, L 1989, ch 770 at 12, 1989 NY Legis Ann at 334-335). The Governor's approval memorandum referred to the legislation as "a worthwhile experiment in improving access to justice for individuals and businesses who may not have the resources to sustain a long [*5]legal battle against an agency that is acting without justification" (Governor's Approval Mem, Bill Jacket, L 1989, ch 770 at 20, 1989 NY Legis Ann at 336). Petitioner points out that organizations that advocated for passage of the legislation, such as the New York State Bar Association, viewed the lack of availability of counsel to represent low-income individuals as a veritable crisis at the time. She further claims that the problem is just as bad, if not worse, in today's difficult economic climate, in which, as the Chief Judge stated in announcing his decision to assemble a "Task Force to Expand Access to Civil Legal Services in New York," "a rapidly growing number of litigants—two million at last count—have no choice but to go to court without the help of a trained professional who knows the law and how to navigate the court system" (Chief Judge Jonathan Lippman, 2010 Law Day Address, Law in the 21st Century: Enduring Traditions, Emerging Challenges [May 3, 2010], available at http://www.nycourts.gov/ctapps/LD10Transcript.pdf at 16).

Of course, the State EAJA was also designed to place limits on the availability of fees. Thus, the only parties eligible to apply for attorneys' fees are individuals with a net worth (excluding the value of a principal residence) of $50,000 or less and owners of businesses with 100 employees or less (CPLR 8602 [d]). Further, fees are not available if the State can establish that its position was substantially justified or that other circumstances militated against a fee award (CPLR 8601 [a]). These "necessary safeguards" are what persuaded the Governor to declare the State EAJA "different" from similar bills that he had vetoed in the past. The limitations, he noted, would "not deter {**106 AD3d at 86}State agencies from pursuing legitimate goals and [would contain] adequate restraints on the amount of fees awarded" (Governor's Approval Mem, Bill Jacket, L 1989, ch 770 at 20, 1989 NY Legis Ann at 336). In this case, we must determine whether the competing goals of expanding access to the courts through the availability of attorneys' fees while maintaining mechanisms to prevent a raid of the State's coffers could not both be accommodated by interpreting the State EAJA as permitting the award of fees under the catalyst theory.

Respondents first argue that the plain language of CPLR 8601 (a) prevents the application of the catalyst theory, because, they assert, that section provides that an award of fees may be awarded to a prevailing party "[i]n addition to" costs and disbursements. Because costs and disbursements are dependent on the entry of a judgment, they maintain, a "prevailing party" must be a party that secured a judgment. This argument is unpersuasive. In defining the term "prevailing party," the legislature did not require the entry of a judgment (CPLR 8602 [f]). The specific definition of the term "prevailing party" trumps the general language in section 8601 (a) that respondents attempt to construe in their favor.

The principal argument offered by respondents, of course, is that the State EAJA was expressly declared to be similar to the Federal EAJA and the federal decisions interpreting the latter. Thus, they assert, regardless of whether federal courts interpreted "prevailing party" to embrace the catalyst theory before May 2001, Buckhannon required New York courts to hold, from that point forward, that the catalyst theory was invalid. Buckhannon involved fee-shifting provisions in the Fair Housing Amendments Act of 1988 and the Americans with Disabilities Act of 1990. The Court, attempting to discern whether the term "prevailing party" employed in those statutes embraced plaintiffs whose lawsuits were the catalyst for favorable voluntary action by the defendant, interpreted its own precedents as establishing that only "enforceable judgments on the merits and court-ordered consent decrees create the 'material alteration of the legal [*6]relationship of the parties' necessary to permit an award of attorney's fees" (532 US at 604). Although Buckhannon did not consider the definition of "prevailing party" in the context of the Federal EAJA, its reasoning has been almost universally extended to that statute (see e.g. Ma v Chertoff, 547 F3d 342, 344 [2d Cir 2008]).

The initial problem with this argument is that CPLR 8600 provides that the State EAJA was intended only to be "similar" {**106 AD3d at 87}to the federal EAJA, not identical. Indeed, in comparing the State EAJA to its federal counterpart, it is obvious that, as the Court of Appeals has noted, "the Legislature departed from the Federal model in certain significant respects" (Matter of New York State Clinical Lab. Assn. v Kaladjian, 85 NY2d 346, 353 [1995]). There are at least three substantive differences in the way the two statutes are written. First, the scope of the state statute is far narrower than that of the federal statute. Again, the former limits eligible parties to individuals with a net worth of $50,000 or less and owners of businesses with 100 employees or less, while the latter embraces individuals with a net worth of $2,000,000 or less and businesses with 500 employees or fewer (compare CPLR 8602 [d] with 28 USC § 2412 [d] [1] [D] [2] [B]). Another significant difference between the two statutes is that only the New York statute defines the term "prevailing party." The federal statute defines that term only for eminent domain proceedings (see 28 USC § 2412 [d] [1] [D] [2] [H]). Finally, the Federal EAJA defines "final judgment" as "a judgment that is final and not appealable, and includes an order of settlement" (28 USC § 2412 [d] [1] [D] [2] [G]), but the State EAJA provides that the same term "means a judgment that is final and not appealable, and settlement" (CPLR 8602 [c]).

These differences seriously undermine respondents' argument that the two statutes should be treated identically for all purposes. To the contrary, each of the three differences supports the argument that the legislature's intention was to follow the Federal EAJA only for limited purposes. Thus, for example, by expressly choosing to narrow the class of plaintiffs and petitioners to whom attorneys' fees are available in comparison to the class identified in the Federal EAJA, it can be presumed that the legislature considered all of the ways in which it could have made the statute more restrictive than the federal law, and incorporated into the new law only those changes that it deemed necessary to satisfy the Governor's desire to place " 'adequate restraints on the amount of fees awarded' " (Kaladjian, 85 NY2d at 354, quoting 1989 NY Legis Ann at 336). It is a critical fact that, at the time CPLR article 86 was enacted in 1989, the "significant body" of case law across the country and in New York that had interpreted the Federal EAJA routinely applied the catalyst theory (see Buckhannon, 532 US at 602 n 3 [citing decisions from Courts of Appeals of 1st, 2d, 3d, 6th, 7th, 8th, 9th, 10th and 11th Circuits that recognized the theory]; see e.g. United Assn. of Journeymen & Apprentices of the Plumbing &{**106 AD3d at 88} Pipefitting Indus. of the U.S. & Can., Local Union No. 112 v United States Dept. of Hous. & Urban Dev., 1986 WL 13880, 1986 US Dist LEXIS 16765 [ND NY 1986]; Correa v Heckler, 587 F Supp 1216 [SD NY 1984]; Williamson v Secretary of U.S. Dept. of Hous. & Urban Dev., 553 F Supp 542 [ED NY 1982]). Where New York State courts had the opportunity to interpret federal fee-shifting statutes, they too recognized the catalyst theory (see e.g. Jones v Koch, 117 AD2d 647 [2d Dept 1986], lv denied 68 NY2d 608 [1986]). If the legislature had deemed it necessary to restrict the statute further by eliminating application of the theory, it would have incorporated that into the [*7]text.

The second significant difference between the two statutes is that only the State EAJA provides a definition for the term "prevailing party." The absence of any statutory definition in the federal statute made it necessary for the Supreme Court in Buckhannon to provide a definition for the term, drawing on its own precedents. However, in the case of the State EAJA, there is no need to search for the meaning of the term, because it is already supplied by the statute. "[W]here the statutory language is clear and unambiguous, the court should construe it so as to give effect to the plain meaning of the words used" (Patrolmen's Benevolent Assn., 41 NY2d at 208). In this instance, the term "prevail" is commonly defined as "to be or become effective or effectual" (Merriam-Webster's Collegiate Dictionary [11th ed 2004]). Had the legislature desired to define the term further so as to clarify that some "judicial imprimatur" was necessary, again, it knew how to do so. There is no question that petitioner's commencement of an article 78 proceeding against the state in this case was "effective" in causing the state to comply with the DAFH.

Significantly, the Court of Appeals has already drawn clear distinctions between the State EAJA and the Federal EAJA with respect to what it means to "prevail." In Kaladjian (85 NY2d at 353-354), the Court set out to determine what the legislature meant in referring to a party that prevails "in substantial part" (CPLR 8602 [f]). The Court noted that

"[a]lthough the legislative history offers no definitive elucidation regarding which of the two possible meanings of the word 'substantial' the Legislature intended, the Legislature's departure from the Federal EAJA in our view evinces an intent to impose a stricter standard for demonstrating prevailing party status under the State EAJA than under its Federal counterpart" (id. at 354).

{**106 AD3d at 89}If the legislature could depart from the Federal EAJA in determining what it means to prevail, then it was perfectly capable of departing in determining whether the catalyst theory was available.

Respondents argue that the Court of Appeals' observation in Kaladjian that the legislature intended to apply a stricter standard in the State EAJA than its federal counterpart supports their position that the legislature would not have favored application of the catalyst theory. This is incorrect. Kaladjian was concerned with the degree of success necessary to warrant an award of attorneys' fees, holding that a plaintiff seeking fees under the State EAJA has to show a greater degree of success than its federal counterpart; it must show that "it succeeded in large or substantial part by identifying the original goals of the litigation and by demonstrating the comparative substantiality of the relief actually obtained" (id. at 355). This, the Court observed, was consistent with the Governor's desire to limit the potential economic impact of the legislation. However, awarding fees to a party that, like petitioner, obtains all of its litigation goals by commencing an action or proceeding does not at all conflict with the notion, advanced in Kaladjian, that fees should only be awarded where there is a close relationship between the outcome sought and the outcome obtained.

Finally, the third significant difference between the State EAJA and the Federal EAJA is [*8]that the latter defines the term "final judgment," the predicate for a fee application in both statutes, as including an "order of settlement," while the New York Legislature provided that "final judgment" can include a mere "settlement." It can be presumed that the legislature's exclusion of the words "order of" was intentional, and meant to broaden the types of settlements eligible to support an application for attorneys' fees. Further, the elimination of words that would otherwise imply the need for a judicial imprimatur negates the holding in Buckhannon that even a voluntary relinquishment of the State's position must be judicially sanctioned.

In addition to the actual language employed in the State EAJA, the legislative history suggests that the legislature, in modeling the legislation on the Federal EAJA, did not intend to do so for all purposes. Rather, it strongly appears that by referencing in CPLR 8600 the "significant body" of case law that had interpreted the Federal Equal Access to Justice Act, the legislature was focused on a narrow range of issues which it{**106 AD3d at 90} intended to be addressed consistently with the manner in which courts had construed the Federal EAJA. This is evident from the sponsoring Assemblyman's October 4, 1989 letter to the Governor's counsel, which stated:

"I wanted to clarify the language and legislative intent of A.3313-B, the Equal Access to Justice Act (EAJA), which I sponsored in the Assembly.

"The more appropriate reference to federal law in CPLR 8600, as added by the EAJA, is to 28 U.S.C. 2412(d) rather than 5 U.S.C. 504. It was the Legislature's intention to incorporate into state law the significant body of case law that has construed 28 U.S.C. 2412(d), including the United States Supreme Court decision in Pierce v. Underwood, 56 U.S.L.W. 1806 (1988).

"In particular, the 'substantially justified' standard discussed in the Pierce majority decision should serve as the controlling interpretation of that phrase in the New York EAJA. In addition, the Supreme Court's discussion of limitations on fee awards should serve as the interpretive standard for the New York EAJA (see 56 U.S.L.W. at 4811-12).

"For example, as the Supreme Court confirmed, multipliers used to enhance fee awards are not appropriate under the EAJA, and we did not contemplate them for the New York EAJA. In addition, factors such as contingent fee arrangements, the novelty of a case, or the result obtained should not be used to increase the amount of the fee awarded. Further, the prevailing market rate for the legal services necessary should serve as the standard for fee awards, not the fees actually charged by the attorneys in a specific case. Thus, [*9]if a person hires a high-priced law firm in a successful EAJA action, the fee award should be based on the market rate cost of the legal services offered, not that particular firm's rate unless there was an unusual type of expertise required that only that one firm could supply. . . .

"The term 'administrative proceeding' contained in the definition of permissible fees (CPLR 8602 [b]), was intended to include only those administrative{**106 AD3d at 91} proceedings that occur as a result of the EAJA litigation, including hearings on remand, not the administrative proceedings that may precede a judicial action. This comports with the federal case law construing 28 U.S.C. 2412(d)" (Sponsor's Mem, Bill Jacket, L 1989, ch 770 at 8-9 [emphases supplied]).

By making specific reference to Pierce v Underwood and other federal case law construing the term "administrative proceeding," the memorandum suggests that the legislature had specific concerns about the potential scope of the State EAJA and that it agreed with the way those issues had been addressed by the Pierce Court and other courts. In light of those very specific concerns, it is not reasonable to assume that the legislature wished each and every conceivable permutation of the State EAJA, including the availability of the catalyst theory, to be construed consistently with the federal courts' construction. Indeed, the Court of Appeals already recognized this, when it found in Kaladjian that the federal courts' interpretation of the term "prevailing party" was inapplicable to the State EAJA.

Because the Federal EAJA only informs the operation of the State EAJA for limited purposes, this Court is required to interpret the statute independently, and not to blindly follow the manner in which the Federal EAJA has been interpreted by Buckhannon and its progeny. Respondents argue that if the state statute were considered in its own light, the catalyst theory would still not apply, because it conflicts with the legislature's intent to limit the State's fee liability. This position of course ignores the legislature's equally strong desire to expand access to justice, which the catalyst theory certainly assists in doing. Nothing in the legislative history suggests that one goal outweighed the other.

The dissent's statement that "all of the considerations now raised by the petitioner and majority were available when we unanimously decided Auguste" pays little heed to the fact, noted above, that Buckhannon was decided after the parties in Auguste had submitted their briefs and argued that appeal to this Court. The dissent's contention that this is of no moment because Buckhannon "form[ed] the basis of our decision in Wittlinger [289 AD2d at 171]" is disingenuous as well, since we relied solely on Auguste in deciding Wittlinger, and did not perform the searching analysis of the State EAJA and Buckhannon's impact on the statute that [*10]we engage in now. In discussing {**106 AD3d at 92}the merits of the catalyst theory, the dissent appears to advocate not only the demise of the theory, but the eradication of the entire fee-shifting statute. The dissent argues for the elimination of the catalyst theory by relying on the Court of Appeals' affirmance of Wittlinger (99 NY2d at 425). However, the Court of Appeals in Wittlinger expressly declined to take a position on the wisdom of the catalyst theory, instead assuming, without deciding, that it did apply and finding that the agency had sufficient justification for the delay in delivering the petitioner's public assistance benefits. Nevertheless, the dissent states that the Court of Appeals "acknowledged" in Wittlinger that "the use of the catalyst theory as a method of determining whether to award attorneys' fees is not the appropriate remedy to punish [agency] delays or encourage prompt state action." The dissent further states that "[a]lthough the delay in this case exceeds that in Wittlinger, the same logic applies, particularly since petitioner has not shown that she suffered any harm from the delay in providing her landlord with the retroactive payments in question."

Initially, it is important to note that respondents do not address on this appeal the issue whether their actions were substantially justified. In any event, nothing in Wittlinger suggests, as the dissent would have it, that the Court of Appeals presumed agency delay to have been substantially justified in all but the most egregious cases, thus militating against any use of a catalyst theory. Nor do we believe, as the dissent states, that the reverse presumption exists. That there are no such presumptions was made clear in Wittlinger, where the Court stated that "[w]hether prolonged inaction will fail the substantial justification test necessarily depends on the circumstances. . . . [I]n each case a reviewing court must determine how long it should have taken the agency to act, considering the reasons offered by the agency for the delay" (99 NY2d at 432).

If the dissent's interpretation of Wittlinger were carried to its logical conclusion, the State EAJA would be eviscerated. That is because the dissent believes that, in a case such as this one, whether a person's grievance is vindicated by judicial fiat or by voluntary state action, the possibility of a fee award creates a perverse incentive to litigate. According to the dissent, "sufficient remedies such as costs and sanctions exist for those cases in which the agency unjustifiably refuses to act pursuant to a settlement or court order." This goes even further than the Supreme Court did in Buckhannon. Certainly it directly{**106 AD3d at 93} contradicts the explicitly stated purpose of the State EAJA, which is to encourage litigation against recalcitrant state agencies. The availability of costs and sanctions to a litigant would not alone entice able counsel to take on the cause.

There is no reason to believe that the catalyst theory threatens the legislature's efforts to ward off an avalanche of fee awards. Certainly the theory does not interfere with the State EAJA's safeguards, such as the limited class of eligible plaintiffs and the safety valve of a demonstration of substantial justification. If anything, preservation of the catalyst theory is critical to achieving the legislative purpose behind the State EAJA. Notably, the dissent does not dispute the legislative history indicating that the legislature did not intend to march in lockstep with the federal courts in interpreting the State EAJA, nor does it discuss the qualitative differences between the state law and its federal counterpart. Nothing, including the Buckhannon [*11]decision, has occurred since the enactment of the State EAJA that compels the conclusion that New York courts should not apply the theory. The dissent's position that nothing in the State EAJA precludes this Court from deciding at this time that the catalyst theory is not available conflicts with its other, and more apt, observation that only the legislature should make such a public policy determination.

As petitioner argues, if respondents' position were upheld, aggrieved but impecunious parties would be hard-pressed to find qualified attorneys to commence cases for them, since they would have no assurance of being compensated. It would be inconsistent with the laudatory goals of the State EAJA to interpret the legislation as depriving plaintiffs of attorneys' fees simply because the State decided to concede its position. Because there is no evidence that the legislature would have desired such a result, we must conclude that the catalyst theory applies to the State EAJA.

Accordingly, the order and judgment (one paper) of the Supreme Court, New York County (Alexander W. Hunter, Jr., J.; see 2011 NY Slip Op 33638[U] [2011]), entered July 18, 2011, which dismissed as moot the petition brought in a hybrid CPLR article 78/declaratory judgment proceeding, and denied petitioner's application for counsel fees pursuant to CPLR article 86, should be reversed, on the law, without costs, the application granted, and the matter remanded for a hearing on the appropriate amount of counsel fees to be awarded to petitioner.

Sweeny, J. (dissenting). The petitioner in this appeal asks us{**106 AD3d at 94} to revisit the issue of the availability of attorneys' fees under the State EAJA and our decision in Matter of Auguste v Hammons (285 AD2d 417 [1st Dept 2001]), and adopt the "catalyst theory" as a basis for awarding fees pursuant to the State EAJA. The majority agrees with petitioner's position. For the reasons stated herein, I must dissent.

Petitioner is a recipient of public assistance from the New York City Human Resources Administration (HRA). On September 16, 2010, the city respondents issued a notice of decision reducing the amount of the "[r]estricted shelter payment" component of petitioner's public assistance benefits by approximately $200 per month. She requested a fair hearing before the New York State Office of Temporary and Disability Assistance (OTDA) to challenge this reduction in benefits. At the hearing, HRA stipulated to withdraw its notice of decision and to restore any lost benefits retroactive to the date of its initial action. On November 29, 2010, OTDA issued a decision after fair hearing (DAFH) ordering the city respondents to comply with the stipulation. The city respondents failed to comply.

On March 28, 2011, petitioner's counsel wrote to OTDA advising that the city respondents were still not in compliance with the DAFH and requested that it direct them to make the required retroactive payments. By letter dated March 20, 2011, OTDA advised petitioner that it received a report from the city respondents that "the local department of family assistance has taken appropriate action to comply with the decision's directives" and that they [*12]considered the matter as "satisfactorily resolved."

Petitioner commenced this CPLR article 78 proceeding on May 6, 2011, seeking enforcement of the DAFH and attorneys' fees pursuant to the provisions of CPLR article 86, known as the Equal Access to Justice Act (EAJA). On May 20, 2011, the city respondents retroactively restored petitioner's shelter allowance benefits. It thereafter moved to dismiss the article 78 proceeding on mootness grounds.

The motion court granted the motion to dismiss. With respect to her application for attorneys' fees, petitioner argued that she was a "prevailing party" under the "catalyst theory"^[FN*] because her petition was not moot when filed, but was only rendered moot by actions taken by respondents as a result of the filing.{**106 AD3d at 95} She argued that she was therefore entitled to fees. The court rejected this argument, relying on our decision in Matter of Auguste v Hammons (285 AD2d 417 [2001]), which expressly rejected the catalyst theory as a basis for recovering attorneys' fees under the State EAJA.

The majority frames the issue in this case as "whether the competing goals of expanding access to the courts through the availability of attorneys' fees while maintaining mechanisms to prevent a raid of the State's coffers could not both be accommodated by interpreting the State EAJA as permitting the award of fees under the catalyst theory." Unfortunately, by declining to follow Auguste and adopting the so-called "catalyst theory" as a basis for awarding such fees, the majority creates the very conditions that will inevitably lead to such raids.

The majority has traced the legislative history of this statute accurately. Where I differ is in the conclusions to be drawn from that history.

Initially, I note that all of the considerations now raised by the petitioner and majority were available when we unanimously decided Auguste. Moreover, we revisited the catalyst theory in Matter of Wittlinger v Wing (289 AD2d 171 [1st Dept 2001], affd 99 NY2d 425 [2003]) and again, relying on Buckhannon Board & Care Home, Inc. v West Virginia Dept. of Health & Human Resources (532 US 598 [2001]), categorically rejected it as a basis for awarding counsel fees. Although Buckhannon had not been decided at the time of our decision in Auguste, it did form the basis of our decision in Wittlinger. Nothing has changed since that time and the majority, although drawing a different conclusion than I from the affirmance of Wittlinger, has advanced no compelling reason to overturn either precedent.

I take no issue with the majority's observation that the State EAJA was intended to be, and as enacted is, similar, but not identical, to the Federal EAJA. That being said, nothing in the State EAJA requires that New York courts interpreting it strictly adhere to the federal judiciary's understanding of the Federal EAJA—on which New York's statute was modeled—as of 1989, when the New York counterpart was enacted. At the time of the State statute's adoption, the catalyst theory was a generally accepted standard in evaluating whether to award counsel fees [*13]under the Federal EAJA. According to the petitioner, this theory is forever part of the state statute, since it was more or less the rule of interpretation of the model statute (i.e., the Federal EAJA) at the time of the adoption of the state{**106 AD3d at 96} statute and was incorporated into the statute by the language explicitly patterning it on the Federal EAJA "and the significant body of case law that has evolved thereunder" (CPLR 8600). Under petitioner's interpretive theory, the meaning of the state statute remains locked in place, even if the model statute evolves in a different direction.

A plain reading of CPLR 8600 does not support petitioner's interpretation. So convoluted a construction of the statute could only be justified if the statute contained explicit language to that effect. No such language appears in the statute. Indeed, the plain language of the statute is as consistent with respect for federal case law as it evolves over time as it is with the "frozen in time" interpretation urged by petitioner. To adopt petitioner's argument would not only prevent New York courts from following federal precedents after 1989 if they chose to do so, but would also prevent them from following their own assessment of the statute's intent in favor of a locked-in view of its meaning.

Significantly, the majority's observation that the State EAJA is "similar to"—rather than "identical to"—the federal statute and related case law gives New York courts the freedom to interpret article 86. In short, New York courts should not be "locked in" to an interpretation of this statute as of the date of its adoption. The differences between the two statutes do not prevent us from following the United States Supreme Court's 2001 rejection of the catalyst theory as a basis for the award of attorneys' fees under the Federal EAJA (see Buckhannon, 532 US at 598).

The majority argues at length that we are not required to accept Buckhannon's rejection of the catalyst theory. True enough. By the same token, I fail to see any reason not to adopt Buckhannon's sound logic.

As noted, the State EAJA brings into play two broad underlying public policies: to facilitate access to the judicial system for the poor and to maintain adequate restraints on the amount of fees awarded. Although the majority concedes that the state statute is intended to be more restrictive on the issue of counsel fees than its federal counterpart (see Matter of New York State Clinical Lab. Assn. v Kaladjian, 85 NY2d 346, 355 [1995]), it proceeds to adopt the implementation of the broad and ill defined standard of the catalyst theory as the basis for awarding such fees. In effect, the adoption of the catalyst theory constitutes a policy decision aimed not at harmonizing the competing{**106 AD3d at 97} interests of the EAJA but at giving precedence to an essentially open-ended method of encouraging actions against municipal agencies and their treasuries. This is not the function of the judiciary. As discussed herein, such policy determinations are the province of the legislature.

The basis of petitioner's request for attorneys' fees in this case squarely falls within the claim that the city respondents delay in complying with the DAFH necessitated the bringing of this action. While I understand and sympathize with the frustration that can result from the often glacial movement of city and state agencies, and do not in any way condone or excuse delays in governmental action, the use of the catalyst theory as a method of determining whether to award attorneys' fees is not the appropriate remedy to punish such delays or encourage prompt state action. This unfortunate fact of government life was specifically acknowledged by the Court of [*14]Appeals in affirming our decision in Wittlinger and deserves quoting at length:

"Agency delays do not automatically give rise to liability for attorneys' fees. While, in theory, the State could have signaled its disapproval of the City DSS's delay by withholding funds from the social services district (see Social Services Law § 20 [3] [e]) or removing or disciplining a local commissioner for dereliction of duty (see Social Services Law § 34 [4]), the Equal Access to Justice Act does not require either action, at least absent the most exceptional of circumstances. In a perfect world, [petitioner] would have gotten his benefits promptly . . . The Appellate Division concluded, in essence, that agency delays are all but unavoidable . . . While this disturbing pattern of failures merits no endorsement, it was not so intolerable as to warrant the award of attorneys' fees as a matter of law" (99 NY2d at 432-433).

Although the delay in this case exceeds that in Wittlinger, the same logic applies, particularly since petitioner has not shown that she suffered any harm from the delay in providing her landlord with the retroactive payments in question.

Nor do I read Wittlinger as creating a presumption that all but the most egregious agency delays fall within the "substantial justification" exception to the award of attorneys' fees. On the other hand, the majority's adoption of the catalyst theory creates{**106 AD3d at 98} a presumption that any delay will form the basis of an enforcement action leading to attorneys' fees.

Further militating against the concept of using the threat of attorneys' fees to punish an agency for dilatory action is the fact that sufficient remedies such as costs and sanctions exist for those cases in which the agency unjustifiably refuses to act pursuant to a settlement or court order. Despite the majority's contention that my position advocates "the eradication of the entire fee-shifting statute," I certainly agree that, in appropriate cases, attorneys' fees may also be properly awarded pursuant to the statute. This, however, is not such a case. There is nothing in the record that indicates the reason for the city respondents delay in complying with the stipulation of settlement. Unlike the Department of Social Services in Wittlinger, the city respondents in this case are silent as to the cause of the delays, and we are in no position to speculate whether their positions were "substantially justified" or were merely the result of inattention, excessive case load or other factors. Likewise, there is nothing to indicate why the commencement of this proceeding was the appropriate remedy under these circumstances. The [*15]state respondent was advised at one point by the petitioner that the city respondents had not complied with the DAFH. It promptly made inquiry and received assurances that the matter was being addressed. Another letter to the State that the city respondents had still not complied may very well have obviated the need for this action. In short, we are simply not in a position to perform the necessary review set forth in Wittlinger.

This of course highlights the crux of the problem created by the adoption of the catalyst theory in awarding attorneys' fees under the EAJA. The prevailing party, as defined by statute, can essentially set its own time frame for compliance by the state agency, since there is no time limitation set by statute or regulation. Once the prevailing party puts its application for fees into motion, any compliance by the municipal agency would be the result of the "catalyst" of such application, even if compliance was already in the works. As the majority acknowledges, Wittlinger stated that "[w]hether prolonged inaction will fail the substantial justification test necessarily depends on the circumstances . . . [I]n each case a reviewing court must determine how long it should have taken the agency to act, considering the reasons offered by the agency for the delay" (99 NY2d at 432). The agency would therefore have to demonstrate{**106 AD3d at 99} to the satisfaction of a reviewing court, in each case, that any delay was justifiable. The potential for abuse is patent. This requirement would place an undue burden on an already thinly stretched judiciary and overburdened agency to determine in each case, without any clear statutory or regulatory guidelines, whether the agency's actions were substantially justified, or whether compliance was solely the result of the action commenced by the petitioner. The result would be clearly at odds with the articulated broad public policy of limiting awards of attorneys' fees under the State EAJA, and would inevitably lead to conflicting decisions. This is merely demonstrative of one of the unintended secondary consequences of the adoption of the catalyst theory by the majority.

18 NYCRR 358-6.4 (c) provides that, upon a complaint of failure to comply with an order, the commission will secure compliance "by whatever means is deemed necessary and appropriate." The regulation does not envision an action commenced by a private petitioner as such a means. Nor does it set forth a penalty for an agency's delayed compliance. By allowing the catalyst theory to form the basis for attorneys' fees, the majority in effect is rewriting the regulation to provide just such a penalty. Indeed, as noted, the Court of Appeals in Wittlinger recognized that the State's options to penalize a tardy municipal agency, such as in this case, are realistically limited, as distasteful as that result may be. The majority's decision today, in effect, mandates a penalty where the agency regulations and State Legislature do not. Rewriting an agency regulation in the guise of statutory construction is not the role of the judiciary.

The majority argues that if the legislature wanted to preclude application of the catalyst theory it would have done so in the text of the statute. But this is a non sequitur and contradicts the majority's own theory of statutory interpretation. As noted above, the catalyst theory was generally accepted by the federal courts at the time of the State EAJA's adoption in 1989. Buckhannon's rejection of the catalyst theory came in 2001. The Supreme Court's rejection of the theory some 12 years after the enactment of the State EAJA could not have been foreseen by the legislature and to argue otherwise reads history backwards. The legislature had no reason in 1989 to believe that the catalyst theory would be rejected. Contrariwise, one could argue with [*16]equal justification that, had the legislature seen fit to enshrine the theory as the basis for attorneys' fees, it could have done so, and would have done so in the 12 years since Buckhannon was decided, and the almost 10 years since Wittlinger was decided.{**106 AD3d at 100}

The majority's argument in this regard, however, has inadvertently revealed the only proper method of resolving the issue before us.

The majority contends that the Court of Appeals impliedly sanctioned the use of the catalyst theory in its decision in Wittlinger. Yet it also acknowledges that the Court affirmatively refused to either endorse or reject it, despite the fact that the issue was squarely before it. Had the Court done so, it would have as the majority does now, made a policy decision elevating one conflicting public policy determination over the other, a decision that, in my view, is the province of, and best left to, the legislature. Paradoxically, the majority agrees with my "more apt . . . observation that only the legislature should make such a public policy determination" while simultaneously proceeding to do exactly what the Court of Appeals has declined to do.

I would therefore affirm the order and judgment of Supreme Court.

DeGrasse, Freedman and Richter, JJ., concur with Mazzarelli, J.P.; Sweeny, J., dissents in a separate opinion.

Order and judgment (one paper), Supreme Court, New York County, entered July 18, 2011, reversed, on the law, without costs, the application granted, and the matter remanded for a hearing on the appropriate amount of counsel fees to be awarded to petitioner.

Motion to file amicus curiae brief granted.