IN RE: LIGHTHOUSE POINTE PROPERTY ASSOCIATES LLC (2011)

Petitioner appeals from an amended order that denied its application for an award of counsel fees pursuant to the New York State Equal Access to Justice Act ( [EAJA] CPLR art. 86) and its motion pursuant to CPLR 2001 to supplement the application with information concerning petitioner's eligibility as a “party” pursuant to the EAJA.   Petitioner sought an award of counsel fees with respect to litigation following an administrative determination in which respondent New York State Department of Environmental Conservation denied petitioner's applications for acceptance into the Brownfield Cleanup Program set forth in Environmental Conservation Law article 27, title 14.   Petitioner submitted those applications with respect to its proposal to develop contiguous 22–acre and 25.4–acre parcels in the Town of Irondequoit and the City of Rochester, respectively, at a cost that petitioner estimated would range between $150 and $250 million (Matter of Lighthouse Pointe Prop. Assoc. LLC v. New York State Dept. of Envtl. Conservation, 61 A.D.3d 88, 872 N.Y.S.2d 766, revd. 14 N.Y.3d 161, 897 N.Y.S.2d 693, 924 N.E.2d 801).

 The EAJA was designed to “improv[e] access to justice for individuals and businesses who may not have the resources to sustain a long legal battle against an agency that is acting without justification,” and it was intended to be “limited to helping those who need assistance” (Governor's Mem. approving L. 1989, ch. 770, 1989 McKinney's Session Laws of N.Y., at 2436;  see Matter of New York State Clinical Lab. Assn. v. Kaladjian, 85 N.Y.2d 346, 351, 625 N.Y.S.2d 463, 649 N.E.2d 811).   We note that the issue whether petitioner's application is consistent with the policy underlying the EAJA is not before us.

 On the merits, we affirm.   Even assuming, arguendo, that Supreme Court erred in denying petitioner's motion to supplement its application for counsel fees, we conclude that petitioner did not meet its burden of establishing that it is a “ ‘[p]arty’ ” eligible to receive an award pursuant to the EAJA (CPLR 8602[d];  see CPLR 8602[b] ).  In any event, petitioner would not be entitled to such an award inasmuch as respondents' position was “substantially justified” (CPLR 8601[a] ), i.e., it was “ ‘justified to a degree that could satisfy a reasonable person’ ” (New York State Clinical Lab. Assn., 85 N.Y.2d at 356, 625 N.Y.S.2d 463, 649 N.E.2d 811, quoting Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 101 L.Ed.2d 490).

It is hereby ORDERED that the amended order so appealed from is unanimously affirmed without costs.

MEMORANDUM: