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January 30, 2018

Collecting attorney fees from the losing party




Collecting attorney fees from the losing party
Dechbery v Cassano, 2018 NY Slip Op 00228, Appellate Division, First Department
The Appellate Division held that Supreme Court properly exercised its discretion in denying Eileen Dechbery attorneys' fees in this proceeding seeking to vindicate her rights pursuant to Civil Service Law §71.*
 
Citing Matter of A.G. Ship Maintenance Corp. v Lezak, 69 NY2d 1, the court said that the general rule is that in Article 78 proceedings, "the prevailing party may not collect [attorneys' fees] from the loser unless an award is authorized by agreement between the parties or by statute or by court rule." However, observed the court, a petitioner in an Article 78 proceeding may be entitled to attorneys' fees under 42 USC §1988 where she asserts a substantial federal constitutional claim.

In this instance the Appellate Division said that Dechbery was not entitled to an award of attorney's fees as she has not successfully asserted a substantial federal constitutional claim in the proceeding. Although she alleges that her due process rights were violated, the mere fact that respondents mailed her notice of termination letter to her prior address does not constitute a violation of her due process rights as she was provided with post-termination due process.

Further, the court observed that Dechbery had failed to establish her entitlement to an award of attorneys' fees under the New York State Equal Access to Justice Act (CPLR Article 86).

* Civil Service Law §71 provides for leaves of absence in the event an employee’s injury or disease is “work connected” and is typically referred to as “workers’ compensation leave. The appointing authority may, as an exercise of discretion, terminate an employee absent on §71 Worker’s Compensation Leave after he or she has been absent on such leave due to the same injury or disease for an accumulative period of one year or longer.

The decision is posted on the Internet at:


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