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ALTHOUGH THE VAPING ASSOCIATION PREVAILED IN ITS ACTION FOR A PRELIMINARY INJUNCTION STAYING THE ENFORCEMENT OF THE DEPARTMENT OF HEALTH’S REGULATIONS BANNING FLAVORED VAPING LIQUIDS, THE DEPARTMENT’S ACTION WAS “SUBSTANTIALLY JUSTIFIED;” THEREFORE THE VAPING ASSOCIATION WAS NOT ENTITLED TO ATTORNEY’S FEES PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the respondent Public Health and Planning Council (within the NYS Department of Health) (the council) should not have been ordered to pay attorney’s fees to petitioner Vapor Technology Association (the vaping association) pursuant to the State Equal Access to Justice Act. The respondent council had adopted emergency regulations prohibiting flavored vaping liquids targeting young people. The petitioner vaping association brought a combined Article 78 and declaratory judgment action challenging the emergency regulations as exceeding the council’s regulatory authority. The Third Department granted the vaping association’s request for a temporary restraining order and Supreme Court granted a preliminary injunction. The matter was rendered moot when the legislature banned the sale of the flavored electronic cigarette products. Because the vaping association had prevailed prior to the legislature’s prohibition, it sought and was awarded attorney’s fees:

CPLR 8601 (a) “mandates an award of fees and other expenses to a prevailing party in any civil action brought against the state, unless the position of the state was determined to be substantially justified or that special circumstances render an award unjust” … . * * *

Petitioners capably disputed respondents’ arguments and obtained a temporary restraining order and a preliminary injunction barring enforcement of the emergency regulations, but a grant of temporary injunctive relief is not “an adjudication on the merits,” and we need not decide who would have prevailed had this matter proceeded to a final judgment … .. Upon our review, we are satisfied that respondents articulated a reasonable factual and legal basis for their arguments that the Council and the Commissioner acted within their rule-making authority by adopting the emergency regulations … . Thus, Supreme Court abused its discretion in finding that those arguments were not “substantially justified” within the meaning of CPLR 8601 (a), and petitioners were not entitled to an award of counsel fees and expenses as a result … .Matter of Vapor Tech. Assn. v Cuomo, 2022 NY Slip Op 02171, Third Dept 3-31-22

Practice Point: Even though a party which prevails against a state agency is generally entitled to attorney’s fees pursuant to the State Equal Access to Justice Act, if the agency’s actions are deemed “substantially justified” attorney’s fees will not be awarded. Here the Department of Health’s adoption of emergency regulations banning the sale of flavored vaping liquids (targeting young people as a market) was deemed “substantially justified” by the appellate court. The award of attorney’s fees by Supreme Court was reversed.

 

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