Juarez v. N.Y.S. Office of Victim Servs.
| Decision Date | 18 February 2021 |
| Docket Number | No. 5,5 |
| Citation | 143 N.Y.S.3d 310,36 N.Y.3d 485,167 N.E.3d 478 |
| Parties | In the Matter of Wenceslao JUAREZ, et al., Respondents, v. NEW YORK STATE OFFICE OF VICTIM SERVICES, et al., Appellants. |
| Court | New York Court of Appeals Court of Appeals |
Regulations of the Office of Victim Services (OVS), as amended in January 2016, limit attorneys' fee awards for crime victim claimants to the costs incurred on applications for administrative reconsideration or appeal and on judicial review ( 9 NYCRR §§ 525.3, 525.9 ). The question presented on this appeal is whether these regulations conflict with the authorizing statute, Executive Law article 22, or are otherwise irrational. We hold that the regulations are fully consistent with the governing statutory language and purpose, within OVS's authority, and rational.
Executive Law article 22 effectuates "the legislature's intent that aid, care and support be provided by the state, as a matter of grace, for ... victims of crime" and their dependents ( Executive Law § 620 ). OVS administers the provisions of article 22 and is authorized to "hear and determine all claims for awards filed with the office ... and to reinvestigate or reopen cases as necessary" (id. § 623[5]). The parties agree that the statute empowers OVS to reimburse victims for "out-of-pocket loss," which is defined as "unreimbursed and unreimbursable expenses or indebtedness reasonably incurred for medical care or other services necessary as a result of the injury upon which such claim is based" and "shall also include ... the cost of reasonable attorneys' fees for representation before the office and/or before the [A]ppellate [D]ivision upon judicial review not to exceed [$1,000]" (id. § 626[1] [emphasis added]). OVS is required to "adopt, promulgate, amend and rescind suitable rules and regulations to carry out the provisions and purposes of" the statute, "including ... rules for the approval of attorneys' fees for representation before the office and/or before the appellate division upon judicial review ..., and rules for the authorization of qualified persons to assist claimants in the preparation of claims for presentation to the office" (id. § 623[3]).
As relevant here, OVS regulations formerly provided that claimants had a "right to be represented ... at all stages of a claim" (9 NYCRR former § 525.9 [a]) and, "[w]henever an award [was] made to a claimant who [was] represented by an attorney, [OVS was required to] approve a reasonable fee commensurate with the services rendered, up to $1,000," unless the request for attorneys' fees was premised on a claim "submitted without legal or factual basis" (9 NYCRR former § 525.9 [c]). OVS acknowledges that this meant that attorneys' fees, if reasonable, were available at all stages of a claim. However, effective January 13, 2016, OVS amended 9 NYCRR § 525.9 to provide that "[a]ny claimant ... may choose to be represented before [OVS], at any stages of a claim, by an attorney-at-law ... and/or before the Appellate Division upon judicial review of the office's final determination," but "only those fees incurred by a claimant during: (1) the administrative review for reconsideration of such decision ...; and/or (2) the judicial review of the final decision of [OVS] ... may be considered for reimbursement" ( 9 NYCRR § 525.9 [a]). The new regulations expressly define "[r]easonable attorney's fees for representation before the office and/or before the appellate division upon judicial review" to mean only reasonable fees incurred during the explicitly enumerated stages of the claim process ( 9 NYCRR § 525.3 [h]). The amendments did not alter the preexisting regulation setting forth "factors to be considered in determining the reasonableness of a fee," which include "the time and labor required [of the attorney], the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly," and "whether any part of the cost of the legal service provided to the claimant has been paid or is payable by a third party" ( 9 NYCRR § 525.9 [d][1], [6]).
OVS issued a regulatory impact statement indicating that the "purpose of th[e] rule change [wa]s to limit attorneys' fees pursuant to article 22 of the Executive Law." OVS stated that the amendments were "designed to conform the regulations to the enacting statute," explaining that the prior regulations permitted claimants to recover attorneys' fees that "far exceed[ed]" the "reasonable expenses" specified under Executive Law § 626(1). OVS indicates that Victim Assistance Programs (VAPs) are federally funded with a state match, and it emphasized in its regulatory impact statement that it "fund[ed] 228 [VAPs] across New York State, distributing in excess of $35 million to these programs to assist and advocate on behalf of victims and claimants." The required services provided by the VAPs include, among other things, "assist[ing] victims and/or claimants in completing and submitting OVS applications and assist[ing] claimants through the claim process." OVS determined that the legislature did not intend that attorneys' fees incurred in relation to assistance within the scope of services provided by VAPs would be considered reasonable under the statute.
The individual petitioners herein are crime victims who were represented by petitioner Gordon, Jackson & Simon in their applications for awards from OVS. As relevant here, petitioners Michelle Soriano and Daniel Velez filed their applications in 2016, after the effective date of OVS's amended regulations; Soriano was awarded $125 and Velez was awarded $365. Soriano also filed a separate emergency application for moving expenses, which included 23 supporting attachments. That application was granted and Soriano was awarded approximately $1,400 in moving and storage expenses. However, OVS denied the requests of both Soriano and Velez for attorneys' fees, and for reconsideration of those requests, on the ground that the fees sought did not relate to assistance obtained in connection with administrative or judicial review. Soriano and Velez did not make separate applications for attorneys' fees in applying for reconsideration.
Thereafter, petitioners commenced this combined CPLR article 78 proceeding and declaratory judgment action in December 2016, arguing in pertinent part that the amended regulations and the denials of Soriano's and Velez's attorneys' fee requests were arbitrary and capricious. In that regard, petitioners asserted that the 2016 amendments were contrary to the plain language of the Executive Law and the legislature's intent that attorneys' fees be awarded "for representation before the office," without restriction.
Supreme Court, as relevant here, granted OVS's subsequent motion for summary judgment and declared that the amendments "constitute an appropriate and lawful exercise of OVS's authority under [a]rticle 22 of the Executive Law to adopt rules governing the approval of reasonable attorneys' fees for representation before [OVS]." The court held that OVS's statutory authority to adopt regulations "governing the approval of attorneys' fees for representation before the agency, together with the agency's duty to award only reasonable reimbursement to crime victims, provide a sufficient statutory predicate for excluding attorneys' fees incurred in the preparation and submission of claims as ... ‘not reasonable expenses.’ " Finally, Supreme Court concluded that neither the amended regulations, themselves, nor their application to Soriano's and Velez's fee requests, resulting in the denial thereof, were arbitrary and capricious.
Upon petitioners' appeal, the Appellate Division modified and, in relevant part, annulled the amendments to 9 NYCRR 525.9 ( 169 A.D.3d 52, 92 N.Y.S.3d 738 [3d Dept. 2019] ). The Court held that "[t]he provisions in the amended regulations that limit counsel fee awards for crime victims to administrative appeals and judicial review are inconsistent with the language and purposes of Executive Law article 22 and in excess of the authority of OVS" ( id. at 60, 92 N.Y.S.3d 738 ). Noting that " Executive Law § 626(1) requires OVS to reimburse crime victims for out-of-pocket loss, which ‘shall ... include ... the cost of reasonable attorneys' fees for representation before [OVS] and/or before the [A]ppellate [D]ivision upon judicial review,’ " the Court determined that there is "no authorization in the statute's plain language for OVS to conclude that counsel fees are never ‘reasonable’ during the early stages of a claim and, thus, to categorically exclude awards of counsel fees for such representation in every instance" ( 169 A.D.3d at 57, 92 N.Y.S.3d 738 ). The Court also concluded that the amended regulations conflict with another OVS regulation— 9 NYCRR § 525.9(d) —which "requires OVS to determine the reasonableness of a counsel fee award based upon specified factors," explaining that "[t]hese factors necessarily contemplate a case-by-case examination of the circumstances of each claim" ( 169 A.D.3d at 58, 92 N.Y.S.3d 738 ), and rejected, as contrary to the record, OVS's assertion, based on the agency's experience, that the initial submission of a claim is a simple process ( id. at 58–59, 92 N.Y.S.3d 738 ).
Neither party disputes the determination of the Appellate Division that Executive Law article 22 "requires OVS to reimburse crime victims for out-of-pocket loss, which ‘shall ... include ... the cost of reasonable attorneys' fees for representation before [ OVS] and/or before the [A]ppellate [D]ivision upon judicial review’ " (169 A.D.3d at 57, 92 N.Y.S.3d 738, quoting Executive Law § 626[1] ). Their disagreement on this appeal concerns OVS's interpretation of the term "reasonable" as reflected in the amended regulations. We conclude that, as OVS argues, the directive in Executive Law § 623(3) that OVS adopt "rules for the approval of attorneys' fees for representation before the office and/or...
To continue reading
Request your trial