Opinion
March 20, 1995
Appeal from the Supreme Court, Queens County (Di Tucci, J.).
Ordered that the order is affirmed, with costs to the respondent Richard L. Higgins, Commissioner of the New York State Department of Housing and Community Renewal.
This is an application by the petitioner, Sin Hang Lee, for an award of counsel fees and other expenses pursuant to CPLR article 86, commonly known as the New York Equal Access to Justice Act. This Act generally permits an award of counsel fees and expenses to the prevailing party in actions or proceedings commenced against the State on or after April 1, 1990 (see, CPLR 8601). Since this action was commenced on November 20, 1989, the petitioner is effectively barred from relief pursuant to this statute. CPLR article 86 is in derogation of the common law and therefore should be strictly construed (see, Matter of Peck v. New York State Div. of Hous. Community Renewal, 188 A.D.2d 327). The petitioner contends that he did not file his appeal until after April 1, 1990, and therefore the date on which he filed his appeal should be controlling for the purposes of CPLR article 86. This argument, however, is without merit since the petitioner could not have sought relief in this Court without first having commenced an action in the Supreme Court.
In any event, we find that the respondent's position was "substantially justified" (CPLR 8601 [a]; see also, Matter of Scibilia v. Regan, 199 A.D.2d 736). Ritter, J.P., Copertino, Joy and Hart, JJ., concur.