GROOVY VIBES LLC v. NEW YORK CITY SHERIFF OFFICE (2026)

Steven Banks, Corporation Counsel, New York (Jennifer Lerner of counsel), for appellants.

Hodgson Russ LLP, Saratoga Springs (Danielle D. Holmes of counsel), for respondent.

Order, Supreme Court, Bronx County (Naita A. Semaj, J.), entered on or about October 10, 2025, which, in this proceeding brought pursuant to CPLR article 78, granted petitioner's motion for attorneys' fees, unanimously reversed, on the law, without costs, and the motion denied.

On July 25, 2024, respondent New York City Sheriff's Office inspected petitioner's hemp store for unlicensed sale of cannabis, seized several products that it alleged were cannabis products, and issued a summons to petitioner for the alleged unlicensed sale of cannabis.  After a hearing before respondent Office of Administrative Trials and Hearings (OATH), the Hearing Officer sustained the summons and imposed a monetary penalty.  However, by order dated June 3, 2025, Supreme Court annulled the determination, vacated the summons, and set aside the penalty, finding, among other things, that the OATH officer's finding was not supported by substantial evidence and that “due process was compromised by the absence of any witness available for cross-examination.”  The court denied petitioner's request for attorneys' fees without prejudice to a properly supported application.  On June 30, 2025, petitioner moved for attorneys' fees pursuant to 42 USC § 1988(b), and the court granted the motion.

Supreme Court lacked authority to award fees under 42 USC § 1988 because petitioner did not assert any substantial federal constitutional claim (see Matter of Dechbery v. Cassano, 157 AD3d 499, 500 [1st Dept 2018] ).  As we recently held in Matter of Local 621, S.E.I.U. v New York City Dept. of Correction (— AD3d —, —, 2026 N.Y. Slip Op 05731, *3 [1st Dept 2026] ), § 1988 fees are unavailable where a petitioner fails to “satisfy [its] ‘obligation to pursue [any] federal constitutional claims and, at the very least, put those claims before the court” (quoting Jiggetts v. Dowling, 3 AD3d 326, 329 [1st Dept 2004], lv denied 3 NY3d 603 [2004] ).  Here, although petitioner challenged the procedural adequacy of the OATH hearing, its CPLR article 78 petition sought relief solely on state-law grounds;  it never invoked the United States Constitution, 42 USC § 1983, or any federal right.  Petitioner raised federal arguments only after judgment, in support of its fee motion.  Because no federal claim was pleaded in the petition, CPLR 7806 bars an award of attorneys' fees, and the fee order must be reversed.

Accordingly, the order granting attorneys' fees is reversed, and the motion denied.