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PETITIONER, WHO WAS ADMITTED TO THE PRISON NURSERY PROGRAM AFTER STARTING AN ARTICLE 78 PROCEEDING CONTESTING THE WITHDRAWAL OF ADMISSION, WAS NOT A PREVAILING PARTY WITHIN THE MEANING OF THE EQUAL ACCESS TO JUSTICE ACT, SHE WAS NOT, THEREFORE, ENTITLED TO ATTORNEY’S FEES 2ND DEPT.

The Second Department determined petitioner, an inmate who sought admission to the prison nursery program for her and her child, was not entitled to attorney’s fees under the Equal Access to Justice Act (EAJA). Petitioner’s admission to the program had been withdrawn by the prison superintendent (Kaplan) so petitioner brought an Article 78 proceeding with an order to show cause. The judge signed the order to show cause and allowed petitioner’s admission to the program pending a hearing. Before the hearing, the superintendent reversed her prior ruling and allowed petitioner to stay in the program. The Second Department held that petitioner was not a “prevailing party” within the meaning of the EAJA, and, even if she had been a prevailing party, the superintendent’s actions were justified:

We conclude that the Supreme Court properly determined that the petitioner was not a “prevailing party” under CPLR 8601(a) and 8602(f), albeit for a different reason. Contrary to the petitioner’s contention, the stipulation entered into between the parties …, which was so-ordered by the court, did not reflect a material change in the legal relationship between the parties because the petitioner’s claims had already been rendered moot by Kaplan’s voluntary decision on December 30, 2014, to vacate her earlier decision removing the petitioner from the Nursery Program … . Furthermore, the petitioner did not achieve prevailing party status by obtaining a temporary restraining order and a preliminary injunction from the court directing the respondents to admit the [*2]petitioner to the Nursery Program pending the outcome of the proceeding … . Matter of Gonzalez v New York State Dept. of Corr. & Community Supervision, 2017 NY Slip Op 05724, 2nd Dept 7-19-17

CIVIL PROCEDURE (EQUAL ACCESS TO JUSTICE ACT, INMATES, PETITIONER, WHO WAS ADMITTED TO THE PRISON NURSERY PROGRAM AFTER STARTING AN ARTICLE 78 PROCEEDING CONTESTING THE DENIAL OF PERMISSION, WAS NOT A PREVAILING PARTY WITHIN THE MEANING OF THE EQUAL ACCESS TO JUSTICE ACT, SHE WAS NOT, THEREFORE, ENTITLED TO ATTORNEY’S FEES 2ND DEPT)/ATTORNEYS  (EQUAL ACCESS TO JUSTICE ACT, INMATES, PETITIONER, WHO WAS ADMITTED TO THE PRISON NURSERY PROGRAM AFTER STARTING AN ARTICLE 78 PROCEEDING CONTESTING THE DENIAL OF PERMISSION, WAS NOT A PREVAILING PARTY WITHIN THE MEANING OF THE EQUAL ACCESS TO JUSTICE ACT, SHE WAS NOT, THEREFORE, ENTITLED TO ATTORNEY’S FEES 2ND DEPT)/EQUAL ACCESS TO JUSTICE ACT (ATTORNEY’S FEES, INMATES, PETITIONER, WHO WAS ADMITTED TO THE PRISON NURSERY PROGRAM AFTER STARTING AN ARTICLE 78 PROCEEDING CONTESTING THE DENIAL OF PERMISSION, WAS NOT A PREVAILING PARTY WITHIN THE MEANING OF THE EQUAL ACCESS TO JUSTICE ACT, SHE WAS NOT, THEREFORE, ENTITLED TO ATTORNEY’S FEES 2ND DEPT)/INMATES (EQUAL ACCESS TO JUSTICE ACT, ATTORNEY’S FEES, PETITIONER, WHO WAS ADMITTED TO THE PRISON NURSERY PROGRAM AFTER STARTING AN ARTICLE 78 PROCEEDING CONTESTING THE DENIAL OF PERMISSION, WAS NOT A PREVAILING PARTY WITHIN THE MEANING OF THE EQUAL ACCESS TO JUSTICE ACT, SHE WAS NOT, THEREFORE, ENTITLED TO ATTORNEY’S FEES 2ND DEPT)

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