Juarez v. N.Y.S. Office of Victim Servs.
| Decision Date | 31 January 2019 |
| Docket Number | 526699 |
| Citation | 92 N.Y.S.3d 738,169 A.D.3d 52 |
| Parties | In the Matter of Wenceslao JUAREZ et al., Appellants, v. NEW YORK STATE OFFICE OF VICTIM SERVICES et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
169 A.D.3d 52
92 N.Y.S.3d 738
In the Matter of Wenceslao JUAREZ et al., Appellants,
v.
NEW YORK STATE OFFICE OF VICTIM SERVICES et al., Respondents.
526699
Supreme Court, Appellate Division, Third Department, New York.
Calendar Date: December 13, 2018
Decided and Entered: January 31, 2019
Boies Schiller Flexner LLP, Albany (Mark Singer of counsel), for appellants.
Letitia James, Attorney General, Albany (Owen Demuth of counsel), for respondents.
Before: Garry, P.J., Egan Jr., Devine, Aarons and Pritzker, JJ.
OPINION AND ORDER
Garry P.J.
Appeal from a judgment of the Supreme Court (Platkin, J.), entered December 20, 2017 in Albany County, which, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, among other things, partially granted respondents' motion for summary judgment dismissing the petition/complaint.
Petitioners Wenceslao Juarez, Serafin Rodriquez, Michelle Soriano and Daniel Velez are crime victims who were represented
by petitioner Gordon, Jackson & Simon, Esqs. (hereinafter the law firm) in applications to respondent Office of Victim Services (hereinafter OVS) for compensation awards pursuant to Executive Law article 22. Specifically, in May 2016, the law firm represented Soriano in a claim for losses of emergency personal property (hereinafter EPP). OVS made an EPP award and denied Soriano's request for counsel fees. Soriano applied for reconsideration of the counsel fee denial, and OVS affirmed its prior decision.1 In March 2016, the law firm represented Velez in a claim for EPP losses. OVS made an EPP award, but declined to award counsel fees. The law firm also represented Juarez and Rodriquez in claims for EPP losses and counsel fees.
In December 2016, the individual petitioners and the law firm commenced this hybrid action and proceeding to challenge amended regulations adopted by OVS in January 2016. In pertinent part, these regulations limit awards of counsel fees to those incurred in the representation of clients in applications for administrative reconsideration or judicial review (see 9 NYCRR 525.9 [a], [c] ).2 Respondents filed a pre-answer motion to dismiss the petition/complaint. In June 2017, Supreme Court granted the motion in part, finding, as pertinent here, that the law firm lacked standing as it was not a crime victim within the scope of protection of Executive Law article 22. The court further found that Soriano and Velez had standing to challenge the amended counsel fee regulations, but that Juarez and Rodriquez did not, as their applications were not determined pursuant to the amendments. The court dismissed claims in the petition/complaint to that extent. No appeal was taken from these determinations.
Thereafter, respondents filed an answer and moved for summary judgment dismissing the petition/complaint in its entirety. In December 2017, Supreme Court partially granted respondents' motion. As relevant here, the court found that OVS did not exceed the scope of its rule-making authority by limiting counsel fee awards to those incurred during requests for administrative reconsideration and judicial review, that it
was not arbitrary or irrational to exclude reimbursement for counsel fees incurred in the initial preparation of claims and that no petitioner had standing to challenge certain other provisions in the amended regulations. The court issued a judgment declaring that, to the extent of these determinations, the amended counsel fee regulations were an appropriate and
lawful exercise of OVS's statutory authority, and granted summary judgment dismissing the claims in the petition/complaint that challenged the denial of counsel fees pursuant to the amended regulations. Petitioners appeal.
The Legislature's purpose in enacting Executive Law article 22 was to recognize and address the need to provide crime victims with financial assistance "as a matter of grace" ( Executive Law § 620 ). The legislation empowers OVS to award compensation to victims for "[o]ut-of-pocket loss," which is defined to mean "unreimbursed and unreimbursable expenses or indebtedness reasonably incurred for medical care or other services necessary as a result of the injury upon which [a victim's] claim is based," including "the cost of reasonable attorneys' fees for representation before [OVS] and/or before the [A]ppellate [D]ivision upon judicial review not to exceed [$1,000]" ( Executive Law § 626[1] ; see Executive Law § 629[1] ).
Executive Law § 623(3) authorizes OVS to adopt regulations for the approval of counsel fee requests. Pursuant to that authority, OVS adopted regulations that formerly provided that crime victims making claims for compensation had the right to be represented by counsel "at all stages of a claim" ( 9 NYCRR 525.9 former [a] ). The regulations previously further provided that "[w]henever an award is made to a claimant who is represented by an attorney, [OVS] shall approve a reasonable fee commensurate with the services rendered, up to $1,000" ( 9 NYCRR 525.9 former [c] [emphasis added]; see Executive Law § 626[1] ). The January 2016 amendments challenged here no longer provide that victims have a right to representation by counsel, stating instead that "victim[s] may choose to be represented ... at any stages of a claim" ( 9 NYCRR 525.9 [a] [emphasis added] ). They further provide that awards for counsel fees "may be considered" only for fees incurred in successful administrative reconsideration reviews and judicial review ( 9 NYCRR 525.9 [a]; see 9 NYCRR 525.3 [h]; 525.9[c] ). The amendments eliminated the requirement that reasonable counsel fees "shall" be paid when an award is
made to a claimant represented by counsel, as well as a provision that had previously allowed OVS to disallow counsel fee claims upon its determination "that a claim was submitted without legal or factual basis and/or the claim or action is without merit and frivolous" ( 9 NYCRR 525.9 former [c] ). The new regulation instead provides that "[OVS] may approve a reasonable fee commensurate with the services rendered, up to $1,000" ( 9 NYCRR 525.9 [c] [emphasis added]; see 9 NYCRR 525.9 [a] ).
In a regulatory impact statement, OVS asserted that it made the amendments because the former regulations "far exceed[ed] the scope of [ Executive Law § 626(1) ]," permitting claimants to "assert that attorneys' fees include any assistance during the course of a claim – from assisting victims and/or claimants in completing and submitting the OVS claim applications themselves, to making phone calls to check on the status of a claim on a claimant's behalf. Reading the plain language of the law, these are not reasonable expenses and not what the Legislature intended." OVS also noted that it distributes more than $35 million to fund 228 Victim Assistance Programs (hereinafter VAPs) located throughout the state for the purpose of providing assistance to crime victims in making claims for compensation.
Turning first to Supreme Court's determination that OVS did not exceed its statutory authority, an administrative agency possesses "those powers expressly conferred by its authorizing statute, as well as those required by necessary implication"
( Matter of City of New York v. State of N.Y. Commn. on Cable Tel., 47 N.Y.2d 89, 92, 416 N.Y.S.2d 786, 390 N.E.2d 293 [1979] ; accord Matter of Acevedo v. New York State Dept. of Motor Vehs., 29 N.Y.3d 202, 221, 54 N.Y.S.3d 614, 77 N.E.3d 331 [2017] ). Where, as here, the Legislature has directed an agency to enact regulations that further the statutory scheme, "[the] agency can adopt regulations that go beyond the text of that legislation, provided they are not inconsistent with the statutory language or its underlying purposes" ( Matter of General Elec. Capital Corp. v. New York State Div. of Tax Appeals, Tax Appeals Trib., 2 N.Y.3d 249, 254, 778 N.Y.S.2d 412, 810 N.E.2d 864 [2004] ; accord Matter of County of Westchester v. Board of Trustees of State Univ. of N.Y., 32 A.D.3d 653, 655, 820 N.Y.S.2d 358 [2006], mod 9 N.Y.3d 833, 840 N.Y.S.2d 746, 872 N.E.2d 858 [2007] ). We need not defer to OVS's statutory interpretation, as the question whether the amendments in the counsel fee regulations are consistent with
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Juarez v. N.Y.S. Office of Victim Servs.
...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 admini......
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