S T A T E   O F   N E W   Y O R K
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                              2015-2016 Regular Sessions
                                   I N  S E N A T E
                                    January 9, 2015
                                      ___________
       Introduced  by  Sen.  LITTLE -- read twice and ordered printed, and when
         printed to be committed to the Committee on Rules
       AN ACT to amend the executive law,  in  relation  to  the  provision  of
         attorney's  fees  in  cases of housing, employment or credit discrimi-
         nation; to amend the executive law, in relation  to  the  awarding  of
         reasonable attorney's fees
         THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section 1. Subdivision 10 of section 297  of  the  executive  law,  as
    2  added  by  section  17  of part D of chapter 405 of the laws of 1999, is
    3  amended to read as follows:
    4    10. With respect to ALL cases of HOUSING  DISCRIMINATION  AND  housing
    5  RELATED  CREDIT  discrimination [only] in an action or proceeding at law
    6  under this section or section two hundred ninety-eight of this  article,
    7  the  commissioner  or  the  court may in its discretion award reasonable
    8  attorney's fees to any prevailing or substantially prevailing party; AND
    9  WITH RESPECT TO A CLAIM OF EMPLOYMENT OR CREDIT DISCRIMINATION WHERE SEX
   10  IS A BASIS OF SUCH DISCRIMINATION, IN AN ACTION  OR  PROCEEDING  AT  LAW
   11  UNDER  THIS SECTION OR SECTION TWO HUNDRED NINETY-EIGHT OF THIS ARTICLE,
   12  THE COMMISSIONER OR THE COURT MAY IN  ITS  DISCRETION  AWARD  REASONABLE
   13  ATTORNEY'S  FEES  ATTRIBUTABLE  TO  SUCH  CLAIM TO ANY PREVAILING PARTY;
   14  provided, however, that a prevailing respondent or defendant in order to
   15  recover such reasonable attorney's fees must make  a  motion  requesting
   16  such  fees and show that the action or proceeding brought was frivolous;
   17  and further provided that in a proceeding brought  in  the  division  of
   18  human rights, the commissioner may only award attorney's fees as part of
   19  a  final  order after a public hearing held pursuant to subdivision four
   20  of this section. In no case shall attorney's  fees  be  awarded  to  the
   21  division,  nor  shall the division be liable to a prevailing or substan-
   22  tially prevailing party for attorney's fees, except in a case  in  which
   23  the  division  is  a  party to the action or the proceeding in the divi-
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD07115-01-5
       S. 3                                2
    1  sion's capacity as an employer.  IN CASES OF EMPLOYMENT  DISCRIMINATION,
    2  A  RESPONDENT SHALL ONLY BE LIABLE FOR ATTORNEY'S FEES UNDER THIS SUBDI-
    3  VISION IF THE RESPONDENT HAS BEEN FOUND LIABLE FOR HAVING  COMMITTED  AN
    4  UNLAWFUL  DISCRIMINATORY  PRACTICE.  In  order  to  find  the  action or
    5  proceeding to be frivolous, the court or the commissioner must  find  in
    6  writing one or more of the following:
    7    (a)  the  action or proceeding was commenced, used or continued in bad
    8  faith, solely to delay or prolong the resolution of the litigation or to
    9  harass or maliciously injure another; or
   10    (b) the action or proceeding was commenced or continued in  bad  faith
   11  without  any reasonable basis and could not be supported by a good faith
   12  argument for an extension, modification or reversal of existing law.  If
   13  the  action  or  proceeding  was promptly discontinued when the party or
   14  attorney learned or should have learned that the  action  or  proceeding
   15  lacked such a reasonable basis, the court may find that the party or the
   16  attorney did not act in bad faith.
   17    S  2.  Paragraph  c of subdivision 7 of section 296-a of the executive
   18  law, as amended by chapter 632 of the laws of 1976, is amended  to  read
   19  as follows:
   20    c.  If  the  superintendent finds that a violation of this section has
   21  occurred, the superintendent shall issue an order which shall do one  or
   22  more of the following:
   23    (1)  impose a fine in an amount not to exceed ten thousand dollars for
   24  each violation, to be paid to the people of the state of New York;
   25    (2) award  compensatory  damages  to  the  person  aggrieved  by  such
   26  violation;
   27    (3)  FOR  A  CLAIM OF SEX DISCRIMINATION ONLY, AWARD REASONABLE ATTOR-
   28  NEY'S FEES ATTRIBUTABLE TO SUCH CLAIM TO ANY PREVAILING PARTY; PROVIDED,
   29  HOWEVER, THAT A PREVAILING RESPONDENT OR DEFENDANT IN ORDER  TO  RECOVER
   30  SUCH  REASONABLE ATTORNEY'S FEES MUST MAKE A MOTION REQUESTING SUCH FEES
   31  AND SHOW THAT THE ACTION OR PROCEEDING BROUGHT WAS FRIVOLOUS. IN NO CASE
   32  SHALL ATTORNEY'S FEES BE  AWARDED  TO  THE  DEPARTMENT,  NOR  SHALL  THE
   33  DEPARTMENT BE LIABLE TO A PREVAILING PARTY FOR ATTORNEY'S FEES. IN ORDER
   34  TO  FIND  THE  ACTION  OR PROCEEDING TO BE FRIVOLOUS, THE SUPERINTENDENT
   35  MUST FIND IN WRITING ONE OR MORE OF THE FOLLOWING:
   36    (A) THE ACTION OR PROCEEDING WAS COMMENCED, USED OR CONTINUED  IN  BAD
   37  FAITH, SOLELY TO DELAY OR PROLONG THE RESOLUTION OF THE LITIGATION OR TO
   38  HARASS OR MALICIOUSLY INJURE ANOTHER; OR
   39    (B)  THE  ACTION OR PROCEEDING WAS COMMENCED OR CONTINUED IN BAD FAITH
   40  WITHOUT ANY REASONABLE BASIS AND COULD NOT BE SUPPORTED BY A GOOD  FAITH
   41  ARGUMENT  FOR AN EXTENSION, MODIFICATION OR REVERSAL OF EXISTING LAW. IF
   42  THE ACTION OR PROCEEDING WAS PROMPTLY DISCONTINUED  WHEN  THE  PARTY  OR
   43  ATTORNEY  LEARNED  OR  SHOULD HAVE LEARNED THAT THE ACTION OR PROCEEDING
   44  LACKED SUCH A REASONABLE BASIS, THE COURT MAY FIND THAT THE PARTY OR THE
   45  ATTORNEY DID NOT ACT IN BAD FAITH.
   46    (4) require the regulated creditor  to  cease  and  desist  from  such
   47  unlawful discriminatory practices;
   48    [(4)] (5) require the regulated creditor to take such further affirma-
   49  tive  action as will effectuate the purposes of this section, including,
   50  but not limited to, granting the credit which was  the  subject  of  the
   51  complaint.
   52    S 3. Severability clause. If any clause, sentence, paragraph, subdivi-
   53  sion, section or part of this act shall be adjudged by a court of compe-
   54  tent  jurisdiction to be invalid, such judgment shall not affect, impair
   55  or invalidate the remainder thereof, but shall be confined in its opera-
   56  tion to the clause, sentence, paragraph, subdivision,  section  or  part
       S. 3                                3
    1  thereof  directly  involved  in  the  controversy in which such judgment
    2  shall have been rendered. It is hereby declared to be the intent of  the
    3  legislature  that  this act would have been enacted even if such invalid
    4  provisions had not been included herein.
    5    S  4.  This  act shall take effect on the ninetieth day after it shall
    6  have become a law, and shall apply to actions commenced on or after such
    7  date.