Opinion
February 14, 1995
Appeal from the Supreme Court, Nassau County (Molloy, J.).
Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.
The petitioners argue that as a result of the commencement of this CPLR article 78 proceeding, the State, acting through its agency the Nassau County Department of Social Services (hereinafter the agency), was forced to change its position. Therefore, the petitioners are prevailing parties and entitled to attorney's fees under either CPLR article 86 or 42 U.S.C. § 1988. We disagree and therefore affirm the Supreme Court's order denying the application for an award of such fees.
The petitioners' papers establish that the agency was attempting to find suitable housing for the petitioners prior to the commencement of this CPLR article 78 proceeding. Thus, the respondents did not change their position as a result of this proceeding and the petitioners were not prevailing parties (see, Matter of Thomasel v. Perales, 78 N.Y.2d 561; Hewitt v. Helms, 482 U.S. 755; Martin v. Heckler, 773 F.2d 1145; see also, Matter of Collington v. Perales, 206 A.D.2d 364).
We have examined the petitioners' remaining contentions and find them to be without merit. Miller, J.P., O'Brien, Santucci and Florio, JJ., concur.