Opinion
April 6, 2000.
Order, Supreme Court, New York County (James Yates, J.), entered on or about October 16, 1998, which, insofar as appealed from, denied petitioners' application pursuant to CPLR article 86 to recover attorneys' fees for services rendered in an underlying administrative proceeding that preceded an article 78 adjudication in petitioners' favor, unanimously affirmed, without costs.
Judith Goldiner Scott A. Rosenberg, for petitioners/plaintiffs-appellants.
Marion R. Buchbinder, for respondents/defendants-respondents.
SULLIVAN, P.J., NARDELLI, ELLERIN, WALLACH, ANDRIAS, JJ.
Upon the City respondent's denial of foster care benefits, petitioners requested a fair hearing before the State respondent, which affirmed the City's denial. This appeal involves petitioners' right to recover for their attorneys' services rendered in the administrative proceedings that preceded the institution of their ensuing successful CPLR article 78 proceeding (Matter of Greer v. Bane, 158 Misc.2d 486). No issues on appeal are raised concerning petitioners' right to recover their attorneys' fees for services rendered in either the article 78 proceeding itself or in the administrative proceedings on remand that were the result of the article 78 proceeding.
In accordance with the views expressed in the dissenting opinion in Matter of Perez v. New York State Dept. of Labor ( 259 A.D.2d 161 [3d Dept]), we hold that petitioners are not entitled to recover their attorneys' fees for the services that were rendered in the administrative proceedings that preceded the institution of their article 78 proceeding. While article 86 was enacted to create a mechanism authorizing recovery of attorneys' fees and other reasonable expenses similar to the provisions of Federal law contained in 28 U.S.C. § 2412(d) (CPLR 8600 ), overall the two statutory schemes, Federal and State, are quite different. In particular, the Federal scheme includes 5 U.S.C. § 504, which directs an agency to pay fees and other expenses, including attorneys' fees, to the prevailing party in an "adversary adjudication". That provision has no counterpart in CPLR article 86. Indeed, the legislative history of CPLR 8600 shows that as originally enacted (L 1989, c. 770), it did refer to 5 U.S.C. § 504, but that the reference was a mistake, and that the statute was accordingly promptly amended (L 1990, c. 73) so as to delete that reference and substitute therefor the present reference to28 U.S.C. § 2412(d) , which is similar in language to CPLR 8601 (see, Historical and Statutory Notes, McKinney's Cons Laws of N.Y., Book 7B, CPLR 8600, 1999-2000 PLR, Interim Pocket Part, at 72; 1990 New York State Legislative Annual, Memorandum of Senator McHugh, at 36, Governor's Approval Memorandum, at 37).
Accordingly, the portion of CPLR 8602(b) that defines "fees and other expenses" as including fees for work "incurred in connection with an administrative proceeding" should be construed to mean only such administrative proceedings as are conducted subsequent to and as a result of any "action" within the meaning of CPLR 8602(a), such as the remand to the State respondent for a second fair hearing that was directed in this "action". This construction gives effect to both subsections a and b of CPLR 8602 and renders them internally compatible (see, Matter of Aaron J., 80 N.Y.2d 402, 407).
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.