        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

966
CA 14-00369
PRESENT: SMITH, J.P., FAHEY, LINDLEY, VALENTINO, AND DEJOSEPH, JJ.


CERBERUS PROPERTIES, LLC AND SCOTT BULLOCK,
PETITIONERS-PLAINTIFFS-APPELLANTS,

                    V                             MEMORANDUM AND ORDER

GARY KIRKMIRE, IN HIS OFFICIAL CAPACITY AS
DIRECTOR OF INSPECTION AND COMPLIANCE SERVICES
OF CITY OF ROCHESTER AND CITY OF ROCHESTER,
RESPONDENTS-DEFENDANTS-RESPONDENTS.


SANTIAGO BURGER ANNECHINO LLP, ROCHESTER (MICHAEL A. BURGER OF
COUNSEL), FOR PETITIONERS-PLAINTIFFS-APPELLANTS.

T. ANDREW BROWN, CORPORATION COUNSEL, ROCHESTER (SARA L. VALENCIA OF
COUNSEL), FOR RESPONDENTS-DEFENDANTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Monroe County (J.
Scott Odorisi, J.), entered May 2, 2013 in a CPLR article 78
proceeding and declaratory judgment action. The order denied the
motion of petitioners-plaintiffs for attorney’s fees.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the motion is granted,
and the matter is remitted to Supreme Court, Monroe County, to
determine the amount of reasonable attorney’s fees to be awarded
pursuant to 42 USC § 1988.

     Memorandum: Petitioners-plaintiffs (plaintiffs) appeal from an
order denying their motion seeking an award of attorney’s fees
pursuant to 42 USC § 1988. Plaintiffs made the motion after
prevailing in their hybrid CPLR article 78 proceeding/declaratory
judgment action against respondents-defendants (defendants). In that
proceeding/action, Supreme Court (Van Strydonck, J.) determined, inter
alia, that the decision of defendant Gary Kirkmire—the director of
inspection and compliance services for defendant City of Rochester
(City)—“to suspend and remove [plaintiffs] from the approved list of
certified lead inspectors was in violation of lawful procedure.”
Although the court did not award monetary damages to plaintiffs, it
ordered that plaintiffs “be returned to the approved list of clearance
examiners.” Defendants did not appeal from the court’s judgment, and
plaintiffs thereafter moved for an award of attorney’s fees. Owing to
the impending retirement of the Supreme Court Justice who entertained
the underlying action, the motion was transferred to another Supreme
Court Justice (Odorisi, J.), who denied the motion because, in his
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                                                         CA 14-00369

view, the case did “not involve a substantial constitutional federal
question.” We now reverse.

     The governing statute, 42 USC § 1988 (b), provides that, “[i]n
any action or proceeding to enforce a provision of sections 1981,
1981a, 1982, 1983, 1985, and 1986 of this title . . . the court, in
its discretion, may allow the prevailing party . . . a reasonable
attorney’s fee as part of the costs . . .” “Although some courts have
held, as did the court in this case, that the decision whether to
grant an award is entirely discretionary . . . this is incorrect . . .
[T]he prevailing party ordinarily should recover reasonable fees
‘unless special circumstances would render such an award unjust’ ”
(Matter of Johnson v Blum, 58 NY2d 454, 458, quoting Newman v Piggie
Park Enterprises, 390 US 400, 402). Where, as here, “relief is sought
on both State and Federal grounds, but nevertheless awarded on State
grounds only,” attorney’s fees may be awarded if a constitutional
question is involved and such question is “substantial and arises out
of a common nucleus of operative facts as the State claim” (Matter of
Thomasel v Perales, 78 NY2d 561, 568 [internal quotation marks
omitted]; see Matter of Giaquinto v Commissioner of N.Y. State Dept.
of Health, 11 NY3d 179, 191). “The threshold for establishing
substantiality of a Federal claim is minimal: the claim must not be
‘wholly insubstantial,’ ‘obviously frivolous’ or ‘obviously without
merit’ ” (Thomasel, 78 NY2d at 569, quoting Hagans v Lavine, 415 US
528, 537-538).

     Here, we agree with plaintiffs that they are entitled to an award
of attorney’s fees under 42 USC § 1988 (b). Their petition/complaint
clearly alleged a federal constitutional claim under the Due Process
Clause and 42 USC § 1983. Although the court did not reach the
federal constitutional claim because it ruled for plaintiffs on state
grounds, the claim was not “ ‘wholly insubstantial,’ ‘obviously
frivolous’ or ‘obviously without merit’ ” (Thomasel, 78 NY2d at 569),
inasmuch as the court concluded that defendants’ removal of plaintiffs
from the list of approved contractors was made in “violation of lawful
procedure.” Moreover, the federal constitutional claim arose “out of
a common nucleus of operative fact as the State claim,” and defendants
did not assert or establish—nor did the court find—that “special
circumstances” exist that would render an award of attorney’s fees
unjust.

     We note that defendants’ primary contention on appeal is that
plaintiffs did not allege a viable due process claim because
plaintiffs do not have a liberty interest in remaining on the list of
City-approved contractors. Defendants rely on case law holding that
“one must have no ability to practice one’s profession at all in order
to state a claim for deprivation of a liberty interest” (Rodriquez v
Margotta, 71 F Supp 2d 289, 296, affd 225 F3d 646). Plaintiffs never
asserted, however, that defendants’ actions infringed upon their
liberty interests. Instead, plaintiffs alleged, and established, a
deprivation of their property rights inasmuch as plaintiffs were
deprived of the opportunity to earn money by performing inspections in
the City of Rochester, and defendants do not dispute that their
actions deprived plaintiffs of property rights.
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                                                         CA 14-00369

     We thus conclude that the court abused its discretion in denying
plaintiffs’ motion seeking an award of attorney’s fees, and we
therefore reverse the order and remit the matter to Supreme Court for
a determination of the reasonable value of such fees.




Entered:   October 3, 2014                      Frances E. Cafarell
                                                Clerk of the Court
