TYK v. EQUIFAX CREDIT INFORMATION SERVICES INC (2003)

Order unanimously affirmed with $10 costs.

Plaintiff, having sued defendant to recover damages under the Fair Credit Reporting Act (15 USC § 1681 et seq.) (the “FCRA”) and having recovered a judgment against defendant, seeks to recover attorney's fees.   We note that the judgment awarding damages to plaintiff did not award attorney's fees and plaintiff never appealed from that judgment.   After defendant filed its notice of appeal from the judgment, plaintiff moved to dismiss the appeal on the ground that it was untimely.   The motion was granted by this court and defendant's motion for leave to appeal was denied by this court.   A similar motion was made to the Appellate Division and was likewise denied.   In opposition to said latter two motions, plaintiff never alleged that they were frivolous or were being made to harass plaintiff or to delay the resolution of the litigation.

In order to be entitled to an award of attorney's fees pursuant to 15 USC § 1681n (c), more must be shown than simply prevailing in litigation.   It must be shown that the party who did not prevail acted in bad faith or for purposes of harassment (15 USC § l681n [c];  Edge v. Professional Claims Bureau, Inc., 64 F Supp 2d 115, 119, affd. 234 F.3d 1261 [2d Cir.2000] ).   Plaintiff has failed to demonstrate his right to recover the fees in that he failed to show that defendant's actions were in bad faith, for the purpose of harassment or to delay the resolution of the underlying litigation.   Further, plaintiff's opposition to defendant's appeal and motions relating thereto cannot be deemed an action to enforce liability pursuant to 15 USC § 1681n (a)(3).