Madeline M. Rivera, Petitioner v. SATISH TRIPATHI TODD BROWN (2026)

This is a David and Goliath story wherein a young 22 year-old law student sued her law school, the State University of New York at Buffalo, after the law school dismissed her for failure to keep a minimum grade point average. The student prevailed, and this Court held that the law school's actions were arbitrary and capricious, and also violated the student's constitutional rights to due process (Madeline M. Rivera v. State University of New York at Buffalo, 87 Misc 3d 267 [Supreme Court, Erie County 2025]).

Madeline Rivera now seeks to apply the New York Equal Access to Justice Act, seeking to have the State pay for her approximately $54,000 in legal fees. The State opposes the motion. This case also presents a novel issue of law and a conflict between two Departments in the State Court system concerning legal fees.

The New York Equal Access to Justice Act (CPLR Art. 86), modeled after federal law (28 USC 2412 [d]), is intended to create a mechanism authorizing the recovery of counsel fees and other reasonable expenses in certain actions against the State of New York (see generally Matter of James Criss v. New York State Department of Health, 192 AD3d 1545 [4th Dept. 2021]). There are four requirements in order to trigger application of the law:

1) Petitioner must be an eligible party by not having a net worth in excess of $50,000;

2) Petitioner must be a "prevailing party;"

3) Respondent's position must not be "substantially justified;"

4) There must not be any "special circumstances" that would make an award "unjust"

(CPLR 8601, 8602).

The State contends that two of the four requirements have not been met, relying on the Court of Appeals case of Matter of New York State Clinical Laboratory Assoc., Inc. v. Gregory Kaladjian (85 NY2d 346 [1995]; see also Malave v. Venettozzi, NY Slip Opinion 33955(U) [Supreme Court, Albany County 2019]). More specifically, the State contends that the law school's actions were "substantially justified," and that the petitioner was not a "prevailing party."

First, both counsel rely on a federal case to define "substantially justified," Pierce v. Underwood (487 US 552 [1988]). There, the Supreme Court defined "substantially justified" as "justified to a degree that could satisfy a reasonable person," or having a "reasonable basis both in law and fact" (See also Malave, supra). The state contends it was justified in changing and restricting the grading policy before applying it to petitioner. However, it was not the school's changing the policy that this Court found to be unjustified. It was changing the policy retroactively after petitioner had applied; been accepted; and commenced classes that was unjustified and therefore adjudged arbitrary and capricious. As petitioner argues, the state has "misapprehended" the issue. This Court concluded that the offending action "lacked any foundation in fact" because while the school had the absolute right to change the minimum-required GPA —it simply did not have the right to apply the revised restrictive policy to petitioner after she had been admitted and then matriculated under the prior less-restrictive policy. In other words, the arbitrary and capricious actions by the school were not that it changed the grading rubric, but the application and timing of when the school applied the new rubric. Accordingly, pursuant to the federal definition of "substantially justified," the law school's retroactive application of the revised grading rubric could not conceivably be justified to a degree that could satisfy a reasonable person. Thus, it was not "substantially justified."

Next, the state contends that Petitioner was not a "prevailing party." The New York EAJA actually defines "prevailing party" as a petitioner "against the state who prevails in whole or substantial part" (CPLR 8602 [f]; accord, Matter of New York State Clinical Laboratory, supra). At bar, the state cites no evidence or basis to support the allegation that petitioner is not the prevailing party. This Court actually held that the respondent law school acted in an arbitrary and capricious manner when it retroactively applied the revised grading rubric, and that the respondent law school violated petitioner's due process rights both when it expelled her without a hearing, and then when it denied her reinstatement without a hearing. It is inconceivable to fathom any conclusion other than that the petitioner prevailed unconditionally, thus she is unarguably a "prevailing party." Moreover, it cannot go unnoticed that this is a school of law that has been found to violate the law in its actions with regard to one of its students. The irony is astonishing.

Next, the State opposes the award of counsel fees on the ground that $54,000 is excessive, in light of the circumstances. It provides no objective evidence, and the law is uncontroverted that absent an abuse of discretion, a trial court's award of counsel fees shall not be disturbed (Matter of Joshua Lippes v. State University of New York at Buffalo, 213 AD3d 1316 [4th Dept. 2023]; A & M Global Mgmt. v. Northtown Urology Assoc., PC et al., 115 AD3d 1283 [4th Dept. 2014]; Matter of the Estate of Katherine M. Dessauer et al. v. Thomas Dessauer, et al., 96 AD3d 1560 [4th Dept. 2012]).

The methodology for determining reasonable counsel fees is aptly described in the seminal case of Matter of Nathan Rahmey v. Blum et al. (95 AD2d 294 [2d Dept. 1983]). First, courts apply an objective test: the number of hours reasonably expended multiplied by a reasonable hourly rate to derive what courts call the "lodestar fee." Second, courts may adjust the lodestar fee based upon the following subjective factors: the novelty and difficulty of the questions presented; the skill requisite to perform the legal services properly; the preclusion of other employment by the attorney due to acceptance of the case; the nature and professional relationship with the client; the results obtained; the customary fee for such services; and the attorney's experience, skill and reputation (See Matter of Rahmey, supra; Lippes, supra).

In both A & M (supra) and Dessauer (supra), the Appellate Division adjusted the requested counsel fees for particular subjective reasons: in the former case the Fourth Department ruled that the lower court mistakenly awarded counsel fees pursuant to a lease in which the awardee was a non-party to the lease (See also Giarrusso v. City of Albany, 174 AD2d 840 [3d Dept. 1991]; Malave, supra). In the latter case, the Fourth Department ruled that Surrogate's Court abused its discretion by not considering the aforementioned factors listed in Rhamey (supra).

At bar, the State has merely asserted in a conclusory fashion that the number of hours expended by counsel is excessive, but provides no support or justification for the alleged rationale. On the other hand, petitioner's attorney provides eight pages of detailed billing records and explanatory justification for the fee, which appears customary in terms of the rate, and reasonable in terms of the work expended. Thus the lodestar calculation is appropriate. Reviewing the skill required; the experience level of the attorney; the other legal work foregone because of attention to the matter at bar; and the extraordinary results achieved, it is apparent that petitioner's counsel undertook a herculean task, litigating against two powerful state-wide institutions — the New York State Attorney General's Office, and the flagship campus of the State University of New York —the largest employer in Western New York, and to which thousands of local and state-wide residents have a connection, whether through employment; having undertaken a course of study; earning an undergraduate or graduate degree; or simply cheering for the University athletic teams. SUNY Buffalo has a gargantuan if not leviathan presence in Western New York, and its contribution to the commerce and identity of the region arguably rivals the Buffalo Bills. And against these two outsized giants, counsel prevailed unconditionally. This achievement cannot be minimized. The requested counsel fee is therefore not inappropriate.

Nevertheless, as counsel acknowledged at oral argument (January 30, 2025), petitioner herself drafted the initial affirmation, although undoubtedly counsel performed review and editing functions. Thus not all of the work was performed by $300/hour experienced attorneys. There was some assistance, in particular by petitioner herself. Accordingly, the Court will adjust the final balance by a downward modification of 10%, on top of the application already applying a 10% downward modification to the lodestar figure, thus taking an overall 20% downward adjustment to legal fees.

Finally, there is a significant issue litigated by counsel concerning whether this Court should grant petitioner's application for attorney fees for applying for and litigating attorney fees, i.e. billing for billing, also referred to in court decisions as "fees on fees." The State contends this is essentially a double-dip.

This issue has been decided by neither the state's highest court, the Court of Appeals, nor by the Appellate Division, Fourth Department, controlling the matter at bar. However, there are conflicting opinions between the Appellate Division, Second Department and the Appellate Division, Third Department.

The Second Department has expressly ruled that "an award of fees on fees —fees for services performed to recover a fee award" are not permissible. "Here, given the absence of unmistakenly clear intent regarding the recovery of fees on fees [in the applicable statute], a right to recover those fees should not be implied (Matter of Aron Law, PLLC v. NYC Fire Department, 239 AD3d 972 [2d Dept. 2025]). In a subsequent ruling on the same case, the Second Department reversed the trial court on unrelated grounds but sent the case back to the lower court to determine reasonable attorney fees (id. 242 AD3d 1084 [2d Dept. 2025). Interestingly, the Second Department contradicted itself on the "fees on fees" issue in dicta in its seminal case from 1983, Rhamey (supra), where it wrote: "Hours reasonably spent by counsel in preparing the fee application and in litigating a fee award are also compensable" ([citations omitted] Id).

On the other hand, the Appellate Division, Third Department has repeatedly taken an opposing view from the current Second Department. In Esther C. v. Ambach (142 AD2d 94 [3d Dept. 1988], the Court found error in the trial Court's paltry award for legal services rendered on the fee application, including the subsequent motion. Wrote the Court: "Where a plaintiff has obtained excellent results, his [or her]attorney should recover a fully compensatory fee. Normally, this will encompass all his [or her] reasonable expenses on litigation [citation omitted]." The Third Department then remitted the case back to the trial court for determination of reasonable attorney fees.

In Matter of Autumn View Health Care Facility, LLC v. Zucker (225 AD3d 969 [3d Dept. 2024]), the Third Department referenced "fees on fees," calling it "a practice which is not prohibited [in the context of a civil rights litigation] [citation omitted]). In a federal case referenced by the Third Department in Autumn View (supra), the Second Circuit reasoned: "A culpable defendant should not be allowed to cause the erosion of fees awarded to the plaintiff for time spent in obtaining the favorable judgment by requiring additional time to be spent thereafter without compensation [citation omitted]. To hold otherwise would permit a deep pocket losing party to dissipate the incentive provided by an award through recalcitrance and automatic appeals [citation omitted]" (Hines v. City of Albany, 862 F. 3d 215 [2d Circuit 2017]).

Finally, in Giarusso v. City of Albany (174 AD2d 840 [3d Dept. 1991]), the Third Department held that the lower Court abused its discretion in denying plaintiff's application for counsel fees —including the hours reasonably spent on the fee application (Accord, Matzell v. Annucci, NY Supreme Court, Albany County 2021, Index # 3111-18, applying the same statute at bar, the Equal Access to Justice Act, holding that hours reasonably spent on a fee application are "indeed compensable" [citations omitted], and see also Malave, supra, also applying the EAJA).

Therefore, applying the Third Department law to the matter at bar, with the two Supreme Court, Albany County cases in support, this Court will not exclude fees on fees in petitioner's fee application. The Appellate Division Second Department reasoning is contradictory between its own cases, and is further unsupported by any rationale. Until the Fourth Department or Court of Appeals addresses the issue, there appears to be no better rationale than that provided by the Third Department that attorneys should be compensated for their work, and "to hold otherwise would permit a deep pocket losing party to dissipate the incentive provided by an award . . . .(Hines, supra).

In conclusion, the Equal Access to Justice Act is found to be applicable to the facts at bar unconditionally. This is a case where the State has overstepped its bounds in more ways than one. In the pursuit of her inalienable rights, Madeline Rivera has taken on not one, but two institutional giants in the State of New York. She has prevailed. The Equal Access to Justice Act was created expressly for these types of circumstances. Justice therefore demands that the statute applies to Madeline Rivera. Accordingly, petitioner Madeline Rivera is entitled to full and fair compensation by the award of reasonable attorney fees as provided. Judgment is hereby granted for Petitioner.

Petitioner's counsel is directed to submit a proposed Order on notice within seven days from Entry of this Order.

Date July 14, 2026

Hon. Peter Allen Weinmann, AJSC

Peter Allen Weinmann, J.