IN RE: Warren CEASAR (2026)

DECISION & ORDER

In a proceeding pursuant to CPLR article 78 to review a determination of the Board of Trustees of the New York City Employees’ Retirement System dated November 12, 2020, which denied the petitioner's application for accidental disability retirement benefits, the New York City Employees’ Retirement System and the Board of Trustees of the New York City Employees’ Retirement System appeal, by permission, from an order of the Supreme Court, Kings County (Richard Velasquez, J.), dated July 20, 2022.  The order, insofar as appealed from, granted that branch of the petition which was for an award of attorneys’ fees.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the petition which was for an award of attorneys’ fees is denied.

In March 2021, the petitioner commenced this proceeding pursuant to CPLR article 78 to review a determination of the Board of Trustees of the New York City Employees’ Retirement System dated November 12, 2020, which denied his application for accidental disability retirement benefits, and for an award of attorneys’ fees.  In an order dated July 20, 2022, the Supreme Court, inter alia, granted that branch of the petition which was for an award of attorneys’ fees.

“The general rule is that in CPLR article 78 proceedings, the prevailing party may not collect attorneys’ fees from the loser unless an award is authorized by agreement between the parties or by statute or by court rule” (Matter of Smith v. New York City Fire Dept., 239 AD3d 870, 872 [alteration and internal quotation marks omitted] ).  Here, since the award of attorneys’ fees was not authorized by agreement, statute, or court rule, the Supreme Court improperly awarded attorneys’ fees to the petitioner (see Matter of Herman v NYC Dept. of Hous. Preserv.   & Dev., 147 AD3d 756, 757).

The petitioner's contention that the award of attorneys’ fees was proper because the NYCERS parties engaged in frivolous conduct within the meaning of 22 NYCRR 130–1.1(c) is improperly raised for the first time on appeal (see Wells Fargo Bank v. Islam, 174 AD3d 670, 671).  In any event, to the extent the Supreme Court awarded attorneys’ fees as a sanction for frivolous conduct, such an award was improper, as the NYCERS parties were not afforded a reasonable opportunity to be heard before sanctions were imposed (see 22 NYCRR 130–1.1[d];  Williams v. Potenza, LLC, 240 AD3d 827, 829), and the court failed to set forth the conduct upon which the award was based, the reasons why the court found the conduct to be frivolous, and the reasons why the court found the amount awarded or imposed to be appropriate (see 22 NYCRR 130–1.2;  Matter of Lillian G. [Steven G.-Gary G.], 208 AD3d 871, 874).

BRATHWAITE NELSON, J.P., CHRISTOPHER, VENTURA and GOLIA, JJ., concur.