Opinion
March 17, 1995
Appeal from the Supreme Court, Oneida County, Grow, J.
Present — Green, J.P., Pine, Callahan, Doerr and Davis, JJ.
Order unanimously reversed on the law without costs and motion denied. Memorandum: The Parole Board denied petitioner release on parole based on the severity of his offenses and that denial was upheld on administrative appeal. In a CPLR article 78 proceeding, Supreme Court determined that the Parole Board had given insufficient reasons for its decision and ordered a new hearing. Thereafter, petitioner moved successfully for counsel fees pursuant to CPLR article 86.
Respondent contends on appeal that the court abused its discretion in granting counsel fees to petitioner because, even though a rehearing was ordered, respondent was "substantially justified" in taking the position that the reasons given for denying parole were adequate (CPLR 8601 [a]; see, Matter of New York State Clinical Lab. Assn. v. Kaladjian, 85 N.Y.2d 346; Matter of Scibilia v. Regan, 199 A.D.2d 736, 737). We agree (see, Matter of Walker v. Russi, 176 A.D.2d 1185, lv dismissed 79 N.Y.2d 897; People ex rel. Thomas v. Superintendent, 124 A.D.2d 848, lv denied 69 N.Y.2d 611).