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Friedman Decision Attorney Fees, Atlantic Yards, 9/20/13

Friedman Decision Attorney Fees, Atlantic Yards, 9/20/13

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Published by AYReport
Friedman Decision Attorney Fees, Atlantic Yards, 9/20/13
Friedman Decision Attorney Fees, Atlantic Yards, 9/20/13

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Published by: AYReport on Sep 26, 2013
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10/11/2013

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SCANNEDON
91?512013
SUPREME COURT
OF
THE
STATE
OF
NEW
YORK
-
NEW
YORK
COUNTYPRESENT: MARCY
S.
RIEDMANPART
57/60
-against- MOTION DATEEMPIRE STATE DEVELOPMENT CORP ET AL. MOTION SEQ. NO.
008
The following papers, numbered
1
to were read on this motion to/for attorney's fees.
...
No
(SI.
No
(SI.
I
o
(SI.
Notice
of
Motion/ Order to Show Cause
-
Affidavits
-
ExhibitsAnswering Affidavits
-
ExhibitsReplying Affidavits
Cross-Motion:
c?
Yes No
Upon the foregoing papers,
it
is ordered that this motion
It
is
ordered that this motion is decided
in
accordance with the accompanying decisiodorderdated September
20,
20
13.
Dated: SeDtember
20, 2013
FILED
I.
Check one:
................................
FcAsE ISPOSED
2.
Check as appropriate:
.....
Motion is:
0
RANTED
0
ENIED
0
RANTED
IN
PART
0
THER
o
NON-FiNAL DiSPOSiTiON
3.
Check if appropriate:
....................
0
ETTLE ORDER SUBMIT ORDER
0
O
NOT POST
0
IDUCIARY APPOINTMENT
0
EFERENCE
 
SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF NEW YORK
-
PART 57/60PRESENT: HON. MARCY
S.
FRIEDMAN, J.S.C.
-#!
b,i633&~~4
DEVELOP DON'T DESTROY (BROOKLYN),
.pA&!"-5..t,
OD8
INC., et al.
Petitioners,
Index No.: 114631/2009Motion Seq.
008
DECISION/ORDER
-
against
-
EMPIRE STATE DEVELOPMENTCOWORATION, FOREST CITY RATNERCOMPANIES, LLC,
Respondents.
FILED
X
SEP
25
2013
COUNTY
CLERK'S
OFFICE
Petitioners Develop Don't Destroy (Brooklyn), Inc. (DDDB) and Prospect
W
YORK
Neighborhood Development Council, Inc. (PHNDC) move, under the New York State EqualAccess to Justice Act (EAJA) (CPLR 8601), for payment by respondent Empire StateDevelopment Corporation (ESDC) of attorney's fees and expenses incurred by petitioners inprosecuting these Article
78
proceedings.
'
The DDDB petitioners seek $169,626.00 in fees (notincluding the fees associated with the instant motion). The PHNDC petitioners seek $146,000.00in fees and $7,900.00 in expenses.Petitioners commenced these Article 78 proceedings to challenge the ESDC's affirmance,in September 2009, of a Modified General Project.Plan (MGPP) for the Atlantic Yards Project inBrooklyn. They argued that the ESDC failed to comply with the State Environmental QualityReview Act (SEQRA) by affirming the MGPP without requiring
a
Supplemental EnvironmentalPetitioners
brought
separate
Article
78
proceedings
which
were
heard
together.
1
 
Impact Statement
(SEIS).
Petitioners’ claims in this proceeding are discussed at Iength in threeprior decisions to which the court refers.
(See
26 Misc 3d 1236 [A] [2010], 2010 NY Misc Lexis
5
18 [denying petition], 30 Misc 3d 616 [2010] [granting reargument and remanding for furtherfindings]; 33 Misc 3d 330 [201 I] [granting petition and requiring SEIS],
affd
94
AD3d
508 [lst
Dept 20121.)Petitioners claim that they are prevailing parties in this proceeding, and are thereforeentitled to attorney’s fees and expenses under the EAJA. (Baker Aff. In Support
7
2; Butzel Aff.In Support
7
IO.)
Respondent argues that petitioners are not entitled to attorney fees under theEAJA because the proceeding was not a “civil action brought against the state.” In addition,respondent argues that petitioners are not prevailing parties within the meaning of the EAJA, andthat the ESDC’s position in the Article 78 proceeding was “substantially justified.” (Resp.’sMemo. Of Law In Opp. at 1
)
Applicabilitv of the EAJAThe EAJA provides, in pertinent part, that “a court shall award to a prevailing party,other than the state, fees and other expenses incurred by such party in any civil action broughtagainst the state, unless the court finds that the position of the state was substantially justified orthat special circumstances make an award unjust.” (CPLR 8601
[a].)
Under the EAJA, “‘[s]tatemeans the state or any of its agencies or any of its officials acting in his or her official capacity.”(CPLR 8602 [g].)The EAJA “was enacted to ‘improv[e] access to justice for individuals and businesseswho may not have the resources to sustain a long legal battle against an agency that
is
actingwithout justification.”’ (Matter of New York State Clinical Lab. Assn.
v
Kaladiian, 85 NY2d2

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