Opinion
February 27, 1995
Appeal from the Supreme Court, Queens County (Kassoff, J.).
Ordered that the order and judgment is affirmed insofar as appealed from, without costs or disbursements.
The petitioner did not become a prevailing party merely because she obtained the relief she sought by way of this proceeding. To be considered a prevailing party, the petitioner must have shown that her suit, regardless of whether she prevailed in a judgment, caused the State or its agency to change their respective positions or to take certain actions (see, Martin v. Heckler, 773 F.2d 1145; Citizens Coalition for Block Grant Compliance v. City of Euclid, 717 F.2d 964; see also, Matter of Thomasel v. Perales, 78 N.Y.2d 561). In this instance, the respondents diligently attempted to provide the relief sought by the petitioner even prior to the initiation of this proceeding.
In any event, we agree with the Supreme Court that an inadvertent failure to timely provide benefits, as occurred here, does not give rise to a claim under 42 U.S.C. § 1983, 1988 (see, Matter of Varsalona v. Perales, 171 A.D.2d 798). Moreover, sufficient special circumstances exist in this case to make an award of attorney's fees inappropriate under CPLR article 86.
We have examined the petitioner's remaining contentions and find them to be without merit. O'Brien, J.P., Lawrence, Krausman and Florio, JJ., concur.