MATTER OF GREER v. Wing

• Decision Date: 15 February 2001
• Citation: 746 N.E.2d 178,723 N.Y.S.2d 123,95 N.Y.2d 676
• Parties: In the Matter of TERESA GREER et al., Appellants, v. BRIAN J. WING, as Acting Commissioner of the New York State Department of Social Services, et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

95 N.Y.2d 676

746 N.E.2d 178

723 N.Y.S.2d 123

In the Matter of TERESA GREER et al., Appellants, v. BRIAN J. WING, as Acting Commissioner of the New York State Department of Social Services, et al., Respondents.

Court of Appeals of the State of New York.

Argued January 10, 2001.

Decided February 15, 2001.

Legal Aid Society, New York City (Judith Goldiner, Helaine Barnett, Steven Banks and Scott A. Rosenberg of counsel), and Sive, Paget & Reisel, P. C. (Kate Sinding of counsel), for appellants.

Eliot Spitzer, Attorney General, New York City (Marion R. Buchbinder and Robert A. Forte of counsel), for Brian J. Wing, respondent. Judges SMITH, LEVINE, CIPARICK, WESLEY and ROSENBLATT concur; Judge GRAFFEO taking no part.

OPINION OF THE COURT

Chief Judge KAYE.

Petitioners—Teresa and Cynthia Greer, and Sandra Greer Smith—are sisters who care for the four minor children of another sister, Rhonda Greer. After Rhonda Greer abandoned three of the children, they were removed from her home in late 1985 by the New York City Human Resources Administration's Child Welfare Administration (now the Administration for Children's Services, or ACS) and, in 1986, were placed with Teresa and Cynthia Greer. In 1991, Rhonda gave birth to, and abandoned, a fourth child, who was then placed with Sandra Greer Smith. Commencing in 1986, petitioners Teresa and Cynthia Greer repeatedly, but unsuccessfully, requested foster care benefits from ACS. In 1991, all three petitioners requested fair hearings from the New York State Department of Social Services to challenge ACS's denial of benefits, and the requests were consolidated. In a decision after fair hearing, the State confirmed the denial of benefits on the ground that petitioners took in their sister's children as an alternative to foster care, rendering them ineligible for benefits.

After petitioners commenced a CPLR article 78 proceeding challenging the denial of benefits, Supreme Court vacated the fair hearing decision and ordered a new hearing (Matter of Greer v Bane, 158 Misc 2d 486). The court ordered retroactive foster care payments unless ACS could show that petitioners were not fit foster parents, and that the children—prior to petitioners' custody of them—were not endangered in their mother's care. On remand, the State issued a decision awarding petitioners retroactive foster care payments.¹ Petitioners then moved, pursuant to CPLR article 86—the Equal Access to Justice Act—for an award of attorneys' fees. Supreme Court rejected the request for legal fees related to the initial administrative proceeding, and limited the award to work performed on the article 78 litigation and subsequent administrative hearing. The Appellate Division affirmed, as do we. In 1989, New York enacted the State Equal Access to Justice Act (EAJA) "to create a mechanism authorizing the recovery of counsel fees and other reasonable expenses in certain actions against the state of New York" (CPLR 8600). As adopted in 1989, the EAJA provided that the law was intended to be "similar to the provisions of federal law contained in 5 U.S.C. § 504 and the significant body of case law that has evolved thereunder" (L 1989, ch 770, § 1). Section 504 permits a prevailing party in an adversary adjudication to obtain an award of fees and expenses from the administrative agency conducting the adjudication (5 USC § 504 [a] [1]).

One year after adopting the EAJA, the New York Legislature amended CPLR 8600 by deleting reference to 5 USC § 504 and substituting reference to 28 USC § 2412 (L 1990, ch 73, § 1). Section 2412 provides for fees to a prevailing party

"incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust" (28 USC § 2412 [d] [1] [A]).

To this day, CPLR 8600 provides that the New York EAJA is intended to be "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."

Like 28 USC § 2412 (d) (1) (A)—the Federal counterpart—section 8601 (a) of the EAJA states that fees and other expenses may be awarded in favor of a prevailing party "in any civil action brought against the state, unless the court finds that the position of the state was substantially justified." An "action" is, according to the statute, "any civil action or proceeding brought to seek judicial review of an action of the state" (CPLR 8602 [a]). Fees and expenses are delimited as "the reasonable expenses of expert witnesses, the reasonable cost of any study, analysis, consultation with experts, and like expenses, and reasonable attorney fees, including fees for work performed by law students or paralegals under the supervision of an attorney incurred in connection with an administrative proceeding and judicial action" (CPLR 8602 [b]).

Petitioners contend that the language of section 8602 (b) clearly and unambiguously allows for an award of attorneys' fees for work performed in connection with an administrative proceeding that predates a civil action. Specifically, petitioners urge that section 8601 (a) allows an award when a civil action is brought, and once that threshold has been met section 8602 (b) defines the scope of fees and expenses that may be awarded, which includes administrative proceedings predating article 78 review.

We read the statute differently. Section 8601 (a) limits the award of fees and expenses to those incurred "in any civil action brought against the state" (emphasis added). As noted, an action is specifically defined as "any civil action or proceeding brought to seek judicial review of an action of the state" (CPLR 8602 [a]). Thus, an award of attorneys' fees and other allowable expenses to a prevailing party first requires a civil action, and does not encompass administrative proceedings that precede a civil action.²

Any doubt as to the scope of the statute is dispelled upon proper examination of its history. In 1989, immediately after the bill's passage by the Legislature but before requisite gubernatorial approval, the Governor sought clarification regarding the reference to 5 USC § 504. The bill's Assembly sponsor, Robin Schimminger, wrote that the more appropriate reference would be to 28 USC § 2412 (d):

"the term `administrative proceeding' contained in the definition of permissible fees (CPLR 8602 (b)) was intended to include only those administrative 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 USC 2412 (d)" (Letter of Assemblymember Robin Schimminger, Bill Jacket, L 1989, ch 770, at 8-9 [emphasis in original]).

Senatorial sponsor John M. McHugh confirmed that Assemblymember Schimminger's letter "accurately reflect[ed] the agreements which were reached with regard to the applicability and effect of the legislation" (Letter of Senator John M. McHugh, Bill Jacket, L 1989, ch 770, at 7). Despite reference to 5 USC § 504 in the bill, the Governor's Approval Memorandum made clear that

"the

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