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BECAUSE PETITIONER HAD SUBSTANTIALLY PREVAILED ON THE FOIL CAUSE OF ACTION, PETITIONER WAS ENTITLED TO ATTORNEY’S FEES AND LITIGATION COSTS, DESPITE THE FACT THAT MUCH OF THE LEGAL REPRESENTATION WAS BY PRO BONO COUNSEL (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the petitioner was entitled to attorney’s fees and litigation costs because petitioner had substantially prevailed on its FOIL causes of action. The fact that much of the legal representation was pro bono was not a bar to recovery:

… [T]he petitioner substantially prevailed on its FOIL cause of action, and the Town had no reasonable basis for denying access to the responsive documents. Accordingly, the petitioner was entitled to an award of reasonable attorneys’ fees and litigation costs incurred on the FOIL cause of action … . The fact that much of the petitioner’s representation was undertaken by pro bono counsel did not affect the petitioner’s entitlement to reasonable attorneys’ fees and litigation costs under the statute … . Matter of Ateres Bais Yaakov Academy of Rockland v Town of Clarkstown, 2023 NY Slip Op 03692, Second Dept 7-5-23

Practice Point: A party who “substantially prevails” on a FOIL cause action is entitled to attorney’s fees and litigation costs, even when much of the legal work was done by pro bono counsel.

 

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