You are here: / / OVERRULING PRECEDENT, THE THIRD DEPARTMENT NOW ACCEPTS THE “CATALYST...
, ,

OVERRULING PRECEDENT, THE THIRD DEPARTMENT NOW ACCEPTS THE “CATALYST THEORY” WHICH, UNDER THE NYS EQUAL ACCESS TO JUSTICE ACT (EAJA), ALLOWS THE RECOVERY OF ATTORNEY’S FEES BY A PARTY WHO INSTIGATES LITIGATION AGAINST THE STATE AND THE STATE VOLUNTARILY GRANTS THE SOUGHT RELIEF WITHOUT FUTHER LITIGATION; THE “CATALYST THEORY” APPLIES ONLY WHERE THE PARTY “PREVAILS IN WHOLE,” NOT WHERE THE PARTY HAS ONLY “SUBSTANTIALLY PREVAILED” (THIRD DEPT).

The Third Department, reversing Supreme Court and overruling precedent, in a full-fledged opinion by Justice Aarons, determined petitioner was not precluded from an award of counsel fees because the agency petitioner sued, the Office of Temporary and Disability Housing (OTDA), voluntarily granted the relief petitioner sought without the need for further litigation. In so doing, the Third Department overruled Matter of Clarke v Annucci, 190 AD3d 1245, Third Dept 2021, which rejected the so-called catalyst theory and precluded recovery under the NYS Equal Access to Justice Act (EAJA) when the sued agency voluntarily grants the sought relief after litigation has been started: The “catalyst theory” is now accepted as valid in the Third Department where, as in this case, the party “prevails in whole,” but not where a party has only “substantially prevailed:”

The text of the state EAJA, the legislative record, our collective judicial experience and common sense all lead us to conclude that the Legislature could have rationally determined that parties who receive complete relief from the State after the commencement of litigation have prevailed “in whole” even if the State folds and gives it to them. * * *

… [W]e hold that a party prevails in whole when the party obtains all of the relief sought in a lawsuit against the State — including when that relief is granted voluntarily by the State after the action is commenced — and is thus a prevailing party under the state EAJA as a matter of law (see CPLR 8602 [f]). To the extent Clarke is to the contrary, it should no longer be followed. * * *

… [A]lthough we no longer read the state EAJA to require every prevailing party to obtain judicially sanctioned relief, we do not otherwise address a party “who prevails . . . in substantial part” (CPLR 8602 [f]). Petitioner’s case does not require us to resolve whether the catalyst theory applies where a party has substantially, but not wholly, prevailed. We continue to impose an additional requirement on a substantially prevailing party to show a win against the State on the merits of one or more “issues” in litigation, and a corresponding win by the State on the merits of one or more “separate issues” (CPLR 8602 [f] …). Therefore, a party claiming to have prevailed in substantial part must still demonstrate that relief was obtained on the merits in an outcome that changes the legal relationship between the party and the State — for example, a judgment on the merits or a settlement agreement. Matter of Markey v Tietz, 2025 NY Slip Op 04689, Third Dept 8-14-25

Practice Point: If a party starts litigation against the state and the state voluntarily grants the sought relief, the party is entitled to attorney’s fees under the NYS Equal Access to Justice Act (EAJA).

 

You might also like
THE DOCTOR ORDERED A CERTAIN DOSAGE OF MEDICATION BE ADMINISTERED FOR “1” MINUTE TO ADDRESS SYMPTOMS OF A STROKE, BUT A NURSE MISTAKENLY PROGRAMMED THE MACHINE TO ADMINISTER THE MEDICATION FOR “11” MINUTES; THE ACTION SOUNDS IN MEDICAL MALPRACTICE, NOT ORDINARY NEGLIGENCE (THIRD DEPT).
HEARING OFFICER DID NOT MAKE AN ADEQUATE INQUIRY TO DETERMINE WHY AN INMATE WITNESS WHO HAD PREVIOUSLY AGREED TO TESTIFY LATER REFUSED, NEW HEARING ORDERED (THIRD DEPT).
Annexation of Petitioners’ Land (Located in the Town) by the City Deemed in the Overall Public Interest
Guidelines With Pre-Authorized Specific Procedure List for Medical Tests and Services Held Valid; Variance Procedure for Tests and Services Not on List Held Valid
PETITIONER, A NONPROFIT ORGANIZATION FOR THE PRESERVATION AND PROTECTION OF THE HEALTH OF THE FINGER LAKES, HAD STANDING TO CONTEST A PERMIT ALLOWING THE DUMPING OF TREATED WASTE IN CAYUGA LAKE; ONE OF PETITIONER’S MEMBER’S DRINKING WATER COMES FROM CAYUGA LAKE (THIRD DEPT).
Surrogate’s Court Abused Its Discretion In Awarding Attorney’s Fees Greater than Those Called for by the Retainer Agreement—Evidence in Support of “Exceptional Circumstances” Justifying the Higher Fees Not Sufficient—Retainer Agreement Construed in Light Most Favorable to the Client
HERE THE FACILITY REVIEW OFFICER VIEWED THE VIDEO EVIDENCE AND EXPRESSED THE CONCLUSION PETITIONER HAD VIOLATED PRISON RULES BEFORE THE DISCIPLINARY HEARING; THAT SAME OFFICER DECIDED PETITIONER’S ADMINISTRATIVE APPEAL; THAT SCENARIO VIOLATED DUE PROCESS; THE MISBEHAVIOR DETERMINATION WAS ANNULLED (THIRD DEPT).
Approval of an MRI Within Seven Years of Closure of Claimant’s Case Effectively Reopened the Case—Transfer to the Special Fund for Closed Cases Was Error

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

THE MAJORITY, LAYING OUT ITS FACTUAL FINDINGS IN GREAT DETAIL, AFFIRMED FAMILY... THE PETITION SEEKING REVIEW OF THE BOARD OF ELECTIONS’ DECISION TO PURCHASE...