Clark v. Lyon

Appellate Division of the Supreme Court of New York

Clark v. Lyon

147 A.D.2d 838, 537 N.Y.S.2d 934, 1989 N.Y. App. Div. LEXIS 1579

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 16, 1989

StatusPublished

Cited by2 cases

This text of 147 A.D.2d 838 (Clark v. Lyon) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Clark v. Lyon, 147 A.D.2d 838, 537 N.Y.S.2d 934, 1989 N.Y. App. Div. LEXIS 1579 (N.Y. Ct. App. 1989).

Pincite

Opinion

Casey, J.

Appeal from an order of the Supreme Court (Rose, J.), entered June 13, 1988 in Tioga County, which, in a proceeding pursuant to CPLR article 78, denied petitioner’s application for an award of costs and counsel fees.

Public Officers Law § 103 (b) provides that "[pjublic bodies shall make or cause to be made all reasonable efforts to ensure that meetings are held in facilities that permit barrier-free physical access to the physically handicapped, as defined in [Public Buildings Law § 50 (5)]”. As a means of enforcement, Public Officers Law § 107 (1) authorizes any aggrieved person to commence a CPLR article 78 proceeding and/or an action for declaratory judgment and injunctive relief. Public Officers Law § 107 (2) provides that "[i]n any proceeding brought pursuant to this section, costs and reasonable attorney fees may be awarded by the court, in its discretion, to the successful party”.

Petitioner instituted an article 78 proceeding pursuant to Public Officers Law § 107 (1), seeking an order enjoining respondent Tioga County Legislature from holding its public meetings and hearings at any location that does not provide barrier-free access to physically handicapped persons, and Supreme Court granted the relief. Upon petitioner’s application for counsel fees pursuant to Public Officers Law § 107 (2), Supreme Court concluded that "respondents have made, and continue to make, reasonable efforts to provide access to handicapped persons, and * * * these efforts were commenced and underway prior to the prosecution of this special proceeding”. Accordingly, the application was denied and petitioner appeals.

Upon our review of the record, we find no abuse of the discretion vested in Supreme Court by Public Officers Law § 107 (2). Nor do we see any basis for substituting our discretion for that of Supreme Court. Accordingly, the order should be affirmed.

Order affirmed, without costs. Kane, J. P., Casey, Weiss, Levine and Mercure, JJ., concur.

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Casey, J.

Appeal from an order of the Supreme Court (Rose, J.), entered June 13, 1988 in Tioga County, which, in a proceeding pursuant to CPLR article 78, denied petitioner’s application for an award of costs and counsel fees.

Public Officers Law § 103 (b) provides that "[pjublic bodies shall make or cause to be made all reasonable efforts to ensure that meetings are held in facilities that permit barrier-free physical access to the physically handicapped, as defined in [Public Buildings Law § 50 (5)]”. As a means of enforcement, Public Officers Law § 107 (1) authorizes any aggrieved person to commence a CPLR article 78 proceeding and/or an action for declaratory judgment and injunctive relief. Public Officers Law § 107 (2) provides that "[i]n any proceeding brought pursuant to this section, costs and reasonable attorney fees may be awarded by the court, in its discretion, to the successful party”.

Petitioner instituted an article 78 proceeding pursuant to Public Officers Law § 107 (1), seeking an order enjoining respondent Tioga County Legislature from holding its public meetings and hearings at any location that does not provide barrier-free access to physically handicapped persons, and Supreme Court granted the relief. Upon petitioner’s application for counsel fees pursuant to Public Officers Law § 107 (2), Supreme Court concluded that "respondents have made, and continue to make, reasonable efforts to provide access to handicapped persons, and * * * these efforts were commenced and underway prior to the prosecution of this special proceeding”. Accordingly, the application was denied and petitioner appeals.

Upon our review of the record, we find no abuse of the discretion vested in Supreme Court by Public Officers Law § 107 (2). Nor do we see any basis for substituting our discretion for that of Supreme Court. Accordingly, the order should be affirmed.

Order affirmed, without costs. Kane, J. P., Casey, Weiss, Levine and Mercure, JJ., concur.

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Bluebook (online)

147 A.D.2d 838, 537 N.Y.S.2d 934, 1989 N.Y. App. Div. LEXIS 1579, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clark-v-lyon-nyappdiv-1989.

Opinion

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