

Matter of Rivera v Berlin (2016 NY Slip Op 05348)





Matter of Rivera v Berlin


2016 NY Slip Op 05348


Decided on July 5, 2016


Appellate Division, First Department


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


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on July 5, 2016

Sweeny, J.P., Acosta, Feinman, Kapnick, Kahn, JJ.


1669N 402582/12

[*1] In re Yahaira Rivera, Petitioner-Appellant,
vElizabeth R. Berlin, etc., Respondent-Respondent, Robert Doar, etc., et al., Respondents.


HIV Law Project, Inc., Brooklyn (Armen H. Merjian of counsel), for appellant.
Eric T. Schneiderman, Attorney General, New York (Philip V. Tisne of counsel), for respondent.

Order, Supreme Court, New York County (Donna M. Mills, J.), entered April 8, 2015, which, upon renewal, denied petitioner's motion for an award of attorney's fees pursuant to CPLR article 86, unanimously affirmed, without costs.
In this article 78 proceeding, petitioner, inter alia, sought to compel respondent New York City Human Resources Administration (HRA) to comply with respondent New York State Office of Temporary and Disability Assistance's (OTDA) direction that it redetermine petitioner's eligibility for public assistance benefits and food stamps and/or restore any lost benefits retroactively. Petitioner had successfully challenged HRA's determinations at four fair hearings before OTDA, but was unable to secure HRA's compliance with OTDA's decisions after fair hearing until this lawsuit. While this lawsuit prompted HRA to change its position, it had no such effect on OTDA, which had consistently sided with petitioner. Therefore, she is not entitled to an award of attorney's fees under New York's Equal Access to Justice Act (CPLR art 86) (see Matter of Solla v Berlin, 24 NY3d 1192, 1195 [2015]; see also Hernandez v Thomas 98 NY2d 735 [2002]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JULY 5, 2016
DEPUTY CLERK


