ALTHOUGH THE TOWN CLERK WAS GIVEN A “VERBAL DIRECTIVE” TO REFUSE TO ACCEPT PETITIONERS’ LEGAL FILINGS FOR A SUMMARY EVICTION, THE REFUSAL WAS “UNJUSTIFIED” WITHIN THE MEANING OF THE CPLR; PETITIONERS’ WERE ENTITLED TO COUNSEL FEES UNDER THE EQUAL ACCESS TO JUSTICE ACT (EAJA) (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Mackey,  determined Supreme Court properly awarded counsel fees to petitioners because the Town Clerk was not justified in refusing to accept petitioners’ legal filings in a summary eviction proceeding. Petitioners’ brought a petition to compel the Clerk to accept the filings which was granted. Petitioners then sued for counsel fees pursuant to the Equal Access to Justice Act (EAJA):

… [T]he EAJA provides that “a court shall award to a prevailing party, other than the state, fees and other expenses incurred by such party in any civil action brought against the state, unless the court finds that the position of the state was substantially justified or that special circumstances make an award unjust” (CPLR 8601 [a] …). The determinative inquiry is whether the challenged actions are “justified to a degree that could satisfy a reasonable person, or hav[e] a reasonable basis both in law and fact” … . A finding as to whether the state’s position was substantially justified is “committed to the sound discretion of the court of first instance and is reviewable as an exercise of judicial discretion” … .

It is uncontested that the Clerk rejected petitioners’ legal filings. … [A] ” … clerk shall not refuse to accept for filing any paper presented for that purpose except where specifically directed to do so by statute or rules promulgated by the chief administrator of the courts, or order of the court” — the record here indicates that the Clerk merely received a verbal directive (CPLR 2102 [c] …). Upon this basis, we agree that the Clerk’s refusal to accept petitioners’ filings was not substantially justified inasmuch as she failed to perform her duty as clerk of the court without proper justification (see CPLR 2102 [c]; 8601 [a]). Accordingly, we discern no abuse of discretion in Supreme Court’s award of counsel fees and expenses to petitioners … . Matter of Moore v Town of Colonie, 2026 NY Slip Op 04353, Third Dept 7-9-26

Practice Point: Here the Town Clerk was compelled to accept petitioners’ legal filings and petitioners were awarded counsel fees based on the Clerk’s “unjustified” refusal to accept the filings.

​