IN RE: Joseph STARNA (2026)

DECISION & ORDER

In a proceeding pursuant to CPLR article 78 to review a determination of the City of New York Reasonable Accommodation Appeals Panel dated August 22, 2022, which upheld a determination of the New York City Fire Department dated January 3, 2022, denying the petitioner's request for a reasonable accommodation from a vaccine mandate based on his religion, the New York City Fire Department and the City of New York appeal from (1) a decision of the Supreme Court, Kings County (Miriam P. Sunshine, Ct. Atty. Ref.), dated May 23, 2024, and (2) a money judgment of the same court dated July 30, 2024.  The money judgment, upon the decision, is in favor of the petitioner and against the New York City Fire Department and the City of New York in the principal sum of $28,940.47, representing an award of attorneys' fees and costs and disbursements.

ORDERED that the appeal from the decision is dismissed, as no appeal lies from a decision (see Schicchi v. J.A. Green Constr.  Corp., 100 A.D.2d 509);  and it is further,

ORDERED that the money judgment is reversed, on the law, and that branch of the petition which was for an award of attorneys' fees and costs and disbursements is denied;  and it is further,

ORDERED that one bill of costs is awarded to the New York City Fire Department and the City of New York.

In September 2022, the petitioner commenced this proceeding pursuant to CPLR article 78, seeking, inter alia, to be reinstated to his position as a firefighter with the New York City Fire Department (hereinafter the FDNY) and an award of attorneys' fees and costs and disbursements.  In an order dated June 21, 2023, the Supreme Court, among other things, granted that branch of the petition which was for reinstatement and directed a hearing on the issue of attorneys' fees and costs.  Following the hearing, in a decision dated May 23, 2024, the court determined that the petitioner was entitled to an award of attorneys' fees in the sum of $28,080, plus costs and disbursements.  A money judgment dated July 30, 2024, was entered in favor of the petitioner and against the FDNY and the City of New York in the principal sum of $28,940.47, representing an award of attorneys' fees and costs and disbursements.  The FDNY and the City appeal.

“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 [internal quotation marks omitted];  see Matter of Schimenti v. City of New York, 245 AD3d 722, 725;  Matter of Ferrera v New York City Dept. of Educ., 230 AD3d 772, 774).  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 Schimenti v. City of New York, 245 AD3d at 725;  Matter of Hughes v. New York City Fire Dept., 244 AD3d 978, 980;  Matter of Smith v. New York City Fire Dept., 239 AD3d at 872–873;  Matter of Ferrera v New York City Dept. of Educ., 230 AD3d at 774).

The remaining contentions of the FDNY and the City need not be considered in light of our determination.

CONNOLLY, J.P., CHAMBERS, FORD and MCCORMACK, JJ., concur.