Matter of Patalano v Nassau County (2011 NY Slip Op 50416(U))

Matter of Patalano v Nassau County

2011 NY Slip Op 50416(U) [30 Misc 3d 1240(A)]

Decided on March 8, 2011

Supreme Court, Nassau County

DeStefano, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

The following papers and the attachments and exhibits thereto have been read on this motion:

In this proceeding pursuant to CPLR Article 78 to in effect, annul a determination of the Nassau County Sheriff's Department denying the petitioner 18 days of sick leave, and for further relief, the Respondents move, pursuant to CPLR 2221, for leave to reargue that part of the petition which was summarily determined by the court, in an order dated December 23, 2010, which granted the Petitioner's request for attorneys' fees.

It is noted that the Petitioner has not challenged the procedural/technical basis for seeking reargument in the context of an Article 78 proceeding or otherwise under the circumstances here. In fact, the court notes that Second Department case law permits applications pursuant to CPLR 2221 in the context of Article 78 proceedings (see Matter of Williams v Board of Education of City School District of City of New York, 24 AD3d 458 [2d Dept 2005]; Matter of Liebe v [*2]Nassau County Civil Service Commission, 291 AD2d 451 [2d Dept 2002]).

It is hereby ordered that the Respondents' motion for leave to reargue that portion of the petition which sought attorneys' fees is granted. Upon reargument, it is further ordered that the portion of the petition which sought attorneys' fees is denied and the petition is dismissed to that extent only. In all other respects, the decision and order dated December 23, 2010 shall remain in effect.

Regarding the court's decision concerning attorneys' fees, the court notes that in its December 23, 2010 decision and order it misapprehended the applicable law. Specifically, it was erroneous for the court to award attorneys' fees pursuant to CPLR 8601. That statute, which authorizes an award of attorneys' fees to a prevailing party in civil actions against the state, has no application to municipal corporations such as Nassau County or to departments thereof, such as the Nassau County Sheriff's Department (see, CPLR 8602 [Definition of "State"]; Green v Wing, 95 NY2d 676 [2001]; Hernandez v Hernandez, as Commission of New York City Department of Social Services, 98 NY2d 735 [2002]; Shapira v Morgenthau, 306 AD2d 80 [1st Dept 2003]).

Inasmuch as no basis for an award of attorneys' fees was presented in the petition, the portion of the petition seeking attorneys' fees should have been, and is now, denied.