Saxton v. N.Y. State Dep't of Taxation & Fin.

• Decision Date: 09 July 2015
• Docket Number: 520128
• Parties: In the Matter of Richard T. SAXTON et al., Appellants, v. NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE et al., Respondents.
• Court: New York Supreme Court — Appellate Division

130 A.D.3d 1224

13 N.Y.S.3d 679

2015 N.Y. Slip Op. 06000

In the Matter of Richard T. SAXTON et al., Appellants

v.NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE et al., Respondents.

520128

Supreme Court, Appellate Division, Third Department, New York.

July 9, 2015.

Harris Beach, PLLC, Albany (Karl J. Sleight of counsel), for appellants.

Eric T. Schneiderman, Attorney General, Albany (Andrew D. Bing of counsel), for respondents.

Before: McCARTHY, J.P., EGAN JR., DEVINE and CLARK, JJ.

Opinion

DEVINE, J.

Appeal from a judgment of the Supreme Court (McDonough, J.), entered January 21, 2014 in Albany County, which, in a proceeding pursuant to CPLR article 78, upon remittal, among other things, partially denied petitioners' application for counsel fees.

The facts that gave rise to this proceeding have been well documented in previous decisions by this Court (107 A.D.3d 1104, 1104–1105, 967 N.Y.S.2d 447 [2013] ; People v. Saxton, 93 A.D.3d 1077, 1077–1079, 941 N.Y.S.2d 308 [2012], lv. denied 18 N.Y.3d 998, 945 N.Y.S.2d 652, 968 N.E.2d 1008 [2012] ; People v. Saxton, 75 A.D.3d 755, 755–757, 907 N.Y.S.2d 316 [2010], lv. denied 15 N.Y.3d 924, 913 N.Y.S.2d 650, 939 N.E.2d 816 [2010] ). In connection with criminal matters against petitioner Richard T. Saxton, petitioner Kathleen M. Diina–Feldman filed a Freedom of Information Law (see Public Officers Law art 6 [hereinafter FOIL] ) request for records in the possession of respondent Department of Taxation and Finance (hereinafter Department) (see People v. Saxton, 93 A.D.3d at 1077–1078, 941 N.Y.S.2d 308 ). This proceeding, as is pertinent here, was prompted by petitioners' belief that the Department had wrongfully withheld certain relevant records while denying the existence thereof (107 A.D.3d at 1104–1105, 967 N.Y.S.2d 447 ). Supreme Court dismissed the petition insofar as it sought disclosure of additional records, relying upon a certification by the Department that all responsive records had been turned over.

While the appeal from that judgment was pending, the Department acknowledged that its prior certification had been in error, and it released a number of previously unidentified records. We accordingly remitted to Supreme Court “for reconsideration of whether, in light of the additional disclosures, petitioners [had] substantially prevailed and [we]re thus entitled to counsel fees” (id. at 1105, 967 N.Y.S.2d 447 ). Upon remittal, petitioners requested nearly $135,000 in counsel fees. Supreme Court found that petitioners had substantially prevailed, but awarded only $25,000 in counsel fees. Petitioners now appeal, contending that Supreme Court abused its discretion in making the fee award.

Inasmuch as Supreme Court determined that petitioners had “substantially prevailed” in this proceeding, it was free to award “reasonable attorney's fees” to them (Public Officers Law § 89[4][c] ). We have previously indicated that Supreme Court has discretion in the FOIL context to determine whether counsel fees should be awarded at all, but also in calculating the reasonable amount of any award (see generally Matter of Legal Aid Socy. v. New York State Dept. of Corr. & Community Supervision,

105 A.D.3d 1120, 1122, 962 N.Y.S.2d 773 [2013] ; Matter of New York Civ. Liberties Union v. City of Saratoga Springs, 87 A.D.3d 336, 340, 926 N.Y.S.2d 732 [2011] ; Matter of New York State Defenders Assn. v. New York State Police, 87 A.D.3d 193, 197, 927 N.Y.S.2d 423 [2011] ).

Supreme Court found an award of counsel fees to be appropriate here and, because “a trial court is in the best position to determine those factors integral to fixing counsel fees,” we will not disturb such an award absent an abuse of discretion (Harris Bay Yacht Club v. Harris, 230 A.D.2d 931, 934, 647 N.Y.S.2d 293 [1996] ; accord Matter of Connolly v. Chenot, 293 A.D.2d 854, 855, 741 N.Y.S.2d 137 [2002] ). We cannot assess whether the award of counsel fees in this case represented an abuse of discretion,...