April 2013 – Third Department Awards Attorney’s Fees

Substantially Prevail

The Appellate Division, Third Department, has again clarified the requirements of the law with respect to when an applicant has “substantially prevailed”, and is therefore entitled to an award of attorney’s fees.

In Legal Aid Society v NYS Department of Corrections and Community Supervision, for more than a year, Legal Aid pursued a request and subsequent appeal regarding certain records from the NYS Department of Corrections and Community Supervision.  Only after commencing an Article 78 proceeding did the Department provide a certification that it conducted a diligent search for the records and found none.

The court found that Legal Aid had been subject to the very kind of unreasonable delay that the attorney’s fees provision of FOIL sought to deter, citing New York Civil Liberties Union v City of Saratoga Springs.

The court held that although full compliance with the statute was finally achieved in the form of a certification that the requested records could not be found after a diligent search, as opposed to the production of responsive documents, this did not preclude a petitioner from being found to have substantially prevailed, for the petitioner received a response only after being forced, in essence, to initiate a judicial proceeding. 

The court awarded attorney’s fees and costs to Legal Aid.