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REGULATIONS PROMULGATED BY THE OFFICE OF VICTIM SERVICES WHICH LIMITED THE AVAILABILITY OF ATTORNEY’S FEES IN THE EARLY STAGES OF A CLAIM CONFLICT WITH THE CONTROLLING STATUTE (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Garry, determined that certain changes made by the Office of Victim Services (OVS) to regulations affecting the availability of attorney’s fees in early stages of a claim conflicted with the controlling statute:

Executive Law § 626 (1) requires OVS to reimburse crime victims for out-of-pocket loss, which “shall . . . include . . . the cost of reasonable attorneys’ fees for representation before [OVS] and/or before the [A]ppellate [D]ivision upon judicial review” … . Our primary purpose in interpreting this provision “is to discern the will of the Legislature and, as the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof” … . Applying these principles, we find no authorization in the statute’s plain language for OVS to conclude that counsel fees are never”reasonable” during the early stages of a claim and, thus, to categorically exclude awards of counsel fees for such representation in every instance. Neither this statutory language nor the similar language of Executive Law § 623 (3) — that authorizes OVS to promulgate regulations for the approval of counsel fees “for representation before [OVS] and/or before the [A]ppellate [D]ivision” — distinguishes among the stages of a victim’s representation before OVS, nor does the statutory text suggest that OVS may do so. Matter of Juarez v New York State Off. of Victim Servs., 2019 NY Slip Op 00653, Third Dept 1-31-19

 

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