Petitioner, the former Governor of the State of New York, files the instant application requesting attorney fees in an Article 78 proceeding pursuant to POL § 17 (2)(b). Respondents oppose the application and cross move for a stay, or in the alternative, a dismissal.

On March 1, 2021, the former Governor's (hereinafter "AMC") office sent a request to the Office of the Attorney General (hereinafter "OAG") seeking the election of an independent [*2]law firm to conduct an investigation into allegations of sexual harassment made against AMC.^[FN1] On August 3, 2021, the OAG published its report of the investigation (hereinafter "the report").^[FN2] At a press conference that same day, Attorney General Letitia James stated "our findings are supported by extensive evidence that includes interviews and testimony from 179 witnesses . . . and a review of tens of thousands of documents."^[FN3] On February 17, 2022, a woman referred to as Trooper 1 in the report, filed civil actions against AMC in federal court.^[FN4] As a part of the federal court proceedings, Trooper 1's attorney represented that she planned to introduce relevant portions of the report at trial.^[FN5] On July 7, 2022, AMC served a document subpoena in the Trooper 1 case requesting the items from the OAG investigation that resulted in the report.^[FN6] OAG challenged the subpoena in federal court and argued that the proper vehicle to obtain those documents would be a FOIL request.^[FN7] Accordingly, AMC submitted that FOIL request on July 25, 2023.^[FN8] On August 22, 2023, AMC served a subpoena a separate federal action alleging sexual abuse, and OAG challenged that subpoena in the same manner.^[FN9]

On August 30, 2023, OAG's FOIL request center notified AMC that it would begin producing the documents requested in six months.^[FN10] In response, AMC initiated an administrative appeal arguing that the production time to turn over documents was a constructive denial of the FOIL request.^[FN11] The administrative appeal was denied.^[FN12] On January 18, 2024, AMC filed an Article 78 action challenging the denial of that administrative appeal in New York County.^[FN13] On February 12, 2024, the Office of the State Comptroller (OSC) denied AMC's [*3]request for attorney fees in the Article 78 proceeding.^[FN14] In a letter to AMC, OSC denied the request because an "action brought in a different jurisdiction against a non-party arising under an unrelated state statue is not lawfully part of the 'defense' of a federal action as contemplated by POL § 17."^[FN15] OSC further explained that the fees would be appropriate if made as a part of a motion to compel in federal court, but not an Article 78. An interim Decision and Order on motion was issued in the 2024 Article 78 action granting, inter alia, reasonable attorney fees.^[FN16] On February 27, 2025, the Appellate Division, First Department reversed the finding of the New York County Article 78, vacated the decision of the lower court, and reversed the granting of attorney's fees stating that the action was brought prematurely.

AMC argues that he is entitled to attorney fees for the Article 78 action, pursuant to POL§ 17, as he was required to seek documents in his federal action via a FOIL request. AMC takes the position that, had OAG complied with the subpoenas, and not argued that the proper vehicle to obtain the documents was via FOIL, he would not have had to expend fees on the FOIL request or the subsequent Article 78 action. OSC cross moves for a stay, or in the alternative, dismissal. The underlying federal actions and the pending Article 78 resulting therefrom, are not for this court, leaving only a question of whether AMC is entitled to attorney fees from the Article 78 action pursuant to POL § 17.

OSC requests that this court also stay the instant proceedings pursuant to CPLR § 2201 and 7805, or in the alternative, dismiss the application pursuant to CPLR § 3211 (7) and 7804 (f).

CPLR § 2201 allows this court to stay a proceeding "in a proper case, upon such terms as may be just." A stay is appropriate "where the decision in one action will determine all the questions in the other action, and the judgment on one trial will dispose of the controversy in both actions." Kubricky Constr. Corp. v. Bucon, Inc., 282 AD2d 796, 722 N.Y.S.2d 823 (3d Dept. 2001). A stay is a proper tool to preserve judicial resources and prevent inequitable results when two causes of action are sufficiently similar. National Mgt. Corp. v. Alolfi, 277 AD2d 553, 715 N.Y.S.2d 526 (3d Dept. 2000).

Here, OSC argued that a stay is appropriate because AMC has been granted attorney fees in the Article 78 action. However, the First Department has now reversed the award of attorney fees and thus the argument that fees have been awarded in another action is now inaccurate. Therefore, this Court will not stay the proceeding as the only request for attorney fees in the Article 78 action is before this court.

In the alternative, OSC also argues that this action should be dismissed pursuant to CPLR § 3211 (a)(7) - failure to state a cause of action. "On a motion to dismiss made pursuant to CPLR 3211 a court should construe the pleadings liberally, accept the allegations as true and afford the party opposing the motion the benefit of every possible inference to determine whether the facts alleged fit within a cognizable legal theory." T. Lemme Mechanical, Inc. v. [*4]Schalmont Cent. School Dist., 52 AD3d 1006, 860 N.Y.S.2d 241 (3d Dept. 2008), see also, Wallkill Medical Dev., LLC v. Catskill Orange Orthopedics, P.C., 113 AD3d 601, 15 N.Y.S.3d 406, (2d Dept. 2015). Generally, the court must view the pleading in the light most favorable to the non-moving party. See Sarah OO v. Charles OO, 198 AD3d 1151, 156 N.Y.S.3D 488 (3d Dept. 2021).

AMC argues he is entitled to attorney fees, incurred while pursuing the Article 78 action, pursuant to POL § 17 (2)(b). POL § 17 (2)(b) requires the State to pay reasonable attorney fees, from time to time, once an employee is certified pursuant to POL § 17 (2)(a).^[FN17] Attorney fees in an Article 78 are allowed pursuant to POL § 89(4)(c) at the Court's discretion. A court, pursuant to POL § 89(4)(c), may grant attorney fees if the requesting party has substantially prevailed. Under POL § 17 (a)(b) attorney fees are required to be paid from time to time, even if the party does not prevail, so long as the fees are reasonable. The only discretion the statute allows the Court pursuant to § 17 (2)(b) is in determining if the fees are reasonable, not whether or not they are going to be granted.

The Petitioner seeks relief pursuant to POL § 17 arguing that he was forced to use FOIL to obtain discovery in a federal action for which he was already certified to receive fees pursuant to that section. "There is . . . no statutory authority under section 17 for attorney's fees in connection with the bringing of an article 78 proceeding. . . " See Garcia v. Abrams,98 AD2d 871, 471 N.Y.S.2d 161 (3d Dept. 1984). Despite that, AMC argues that POL § 17 should apply to his Article 78 because, but for the State's failure to comply with his subpoena in federal court and OAG's position that the proper vehicle to seek such documents is via FOIL, he would not have had taken that avenue or had to pursue the Article 78. However, the First Department has ruled that the Article 78 action was brought prematurely. This court cannot now grant attorney fees, under any statutory authority, for and action that the Appellate Division has ruled should not have been brought. It is clear from the decision of the First Department that the Appellate Division vacated the order of New York County because the action was bought prematurely. Granting AMC POL § 17 attorney fees beyond the litigation for which the certified to receive those fees, for an action he filed prematurely, stretches the § 17 fees beyond its limits and this court finds that such a ruling would cause an "unwarranted invasion of the public purse." See Sharapata v. Town of Islip, 56 NY2d 332, 452 N.Y.S.2d 347 (1982).

Wherefore, based on the foregoing, Respondents motion to dismiss is GRANTED.

This constitutes the decision and order of the Court.