Ferraro v. Perales

166 A.D.2d 443, 561 N.Y.S.2d 145, 1990 N.Y. App. Div. LEXIS 11747

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 1, 1990
• Status: Published

Opinion

In a proceeding pursuant to CPLR article 78 to compel compliance with a decision dated January 28, 1988, made after a hearing, the Commissioner of the New York State Department of Social Services appeals from so much of a judgment of the Supreme Court, Suffolk County (Lama, J.), entered May 1, 1989, as granted the petitioner’s request for attorney’s fees pursuant to 42 USC § 1988, and the petitioner has filed a notice of cross appeal from the judgment.

Ordered that the cross appeal is dismissed, without costs or disbursements, as abandoned; and it is further,

Ordered that the judgment is reversed insofar as appealed from, on the law, without costs or disbursements, and the application for attorney’s fees is denied.

Contrary to the petitioner’s contention, we find that the Supreme Court improperly granted his request for attorney’s fees pursuant to 42 USC § 1988. The petitioner’s cause of action, essentially to compel prompt compliance with a decision after a hearing, was not a bona fide civil rights cause of action pursuant to 42 USC § 1983 (see, Matter of Rashid v Perales, 156 AD2d 692; see also, Matter of Ehrman v Perales, 162 AD2d 598; Matter of Middleton v Perales, 160 AD2d 800). Kooper, J. P., Harwood, Balletta and Rosenblatt, JJ., concur.