Bill Text: NY S05637 | 2017-2018 | General Assembly | Introduced

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Bill Title: Requires a court to award reasonable attorneys' fees and costs incurred for meritless actions and abusive lawsuits when it has granted a motion to dismiss for failure to state a cause of action.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2017-05-03 - RECOMMIT, ENACTING CLAUSE STRICKEN [S05637 Detail]

Download: New_York-2017-S05637-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________
                                          5637
                               2017-2018 Regular Sessions
                    IN SENATE
                                     April 24, 2017
                                       ___________
        Introduced by Sen. ALCANTARA -- read twice and ordered printed, and when
          printed to be committed to the Committee on Judiciary
        AN  ACT to amend the civil practice law and rules, in relation to attor-
          neys' fees and costs for meritless actions and abusive lawsuits
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
     1    Section 1. The civil practice law and rules is amended by adding a new
     2  section 8101-a to read as follows:
     3    §  8101-a. Attorneys' fees and costs for meritless actions and abusive
     4  actions.  1. Where a court grants a motion to  dismiss  for  failure  to
     5  state  a  cause  of  action  upon which relief may be granted, the court
     6  shall award the party or parties against whom the dismissed claims  were
     7  asserted reasonable attorneys' fees and costs incurred in the proceeding
     8  as a consequence of the dismissed claims.
     9    2.  Notwithstanding  any  other  provision  of this section, the court
    10  shall not require a party to pay attorneys' fees and  costs  under  this
    11  section in excess of fifteen thousand dollars in any single lawsuit.
    12    3. This section shall not apply to:
    13    a.  actions  by  the state, other government entities, or public offi-
    14  cials acting in their official capacity or under color of law;
    15    b. any claim that is dismissed by the granting of a motion to  dismiss
    16  that  was  filed  more  than  sixty days after the moving party received
    17  service of the latest complaint, counter-complaint or cross-complaint in
    18  which that dismissed claim was made;
    19    c. any claim that the party against whom the  motion  to  dismiss  was
    20  granted  in good faith amended to state a claim upon which relief may be
    21  granted;
    22    d. actions by pro se litigants, except where the court also finds that
    23  the pro se party acted unreasonably in bringing, or refusing  to  volun-
    24  tarily withdraw, the dismissed claim;
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD09746-01-7
        S. 5637                             2
     1    e.  any  claim  which  is  a  good  faith, non-frivolous claim for the
     2  express purpose of extending, modifying, or  reversing  existing  prece-
     3  dent,  law or regulation, or for the express purpose of establishing the
     4  meaning, lawfulness or constitutionality of a law, regulation or consti-
     5  tutional  right  where  the  issue  is  a  matter of first impression or
     6  subject to conflicting interpretations. This subdivision shall not apply
     7  when the party that asserted the dismissed  claim  specifically  pleaded
     8  that the dismissed claim was made for one of the express purposes listed
     9  above and cited the contrary precedent or interpretation the party seeks
    10  to  distinguish  or  overcome,  or  whether the issue to be decided is a
    11  matter of first impression or conflicting interpretations  as  described
    12  in this subdivision; or
    13    f.  any  claim  for  which  relief could be granted under a law, regu-
    14  lation, a court precedent that was in effect and applicable to the claim
    15  at the time the claim was filed; where that law, regulation,  or  prece-
    16  dent  was cited in the pleading in which the dismissed claim was made or
    17  in the response to the motion to dismiss; and where  court  granted  the
    18  motion  to  dismiss  the  claim due to the subsequent repeal, amendment,
    19  overruling, or distinguishing of that law, regulation, or  court  prece-
    20  dent.
    21    4.  An  award  pursuant  to  this section shall be made only after all
    22  appeals of the issue of the granting of the motion to dismiss have  been
    23  exhausted  and  if  the  final  outcome is the granting of the motion to
    24  dismiss.
    25    5. Nothing in this section shall be construed to limit  the  award  of
    26  attorneys' fees, costs, or sanctions authorized by other law.
    27    §  2.  Subdivision (a) of section 8303-a of the civil practice law and
    28  rules, as amended by chapter 620 of the laws of 1997, is amended to read
    29  as follows:
    30    (a) If in an action to recover damages for personal injury, injury  to
    31  property  or  wrongful death, or an action brought by the individual who
    32  committed a crime against the victim of the crime, and  such  action  or
    33  claim  is  commenced  or  continued  by  a  plaintiff or a counterclaim,
    34  defense or cross claim is commenced or continued by a defendant  and  is
    35  found, at any time during the proceedings or upon judgment, to be frivo-
    36  lous  by  the  court,  the  court  shall  award to [the successful] each
    37  prevailing party costs and  reasonable  attorney's  fees  not  exceeding
    38  [ten]  twenty-five thousand dollars for each frivolous claim, defense or
    39  cross claim.
    40    § 3. This act shall take effect immediately.