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IN RE: Oscar CINTRON, Petitioner–Respondent, v. Judith A. CALOGERO, etc., Respondent–Appellant.

Decided: October 04, 2012

ANDRIAS, J.P., SWEENY, CATTERSON, MOSKOWITZ, JJ. Gary R. Connor, New York, (Martin B. Schneider of counsel), for appellant. BAS Legal Advocacy Program, Inc., Bronx (Randolph Petsche of counsel), for respondent.

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered August 3, 2011, which, among other things, granted petitioner's application pursuant to CPLR article 86 for counsel fees and expenses incurred in the underlying CPLR article 78 proceeding against respondent Department of Housing and Community Renewal (DHCR), denied DHCR's cross motion to deny the application, unanimously reversed, on the law, without costs, the cross motion granted, and the application denied.

The application should have been denied, since DHCR's position in the underlying CPLR article 78 proceeding was “substantially justified” (CPLR 8601[a] ), that is, it had a “reasonable basis both in law and fact” (Matter of New York State Clinical Lab. Assn. v. Kaladjian, 85 N.Y.2d 346, 356, 625 N.Y.S.2d 463, 649 N.E.2d 811 [1995] [internal quotation marks omitted] ). Indeed, when the proceeding commenced, appellate precedent existed supporting the agency's position (see e.g. Matter of Highlawn Assoc. v. Division of Hous. & Community Renewal, 309 A.D.2d 750, 765 N.Y.S.2d 272 [2d Dept.2003], overruled by Jenkins v. Fieldbridge Assoc., LLC, 65 A.D.3d 169, 173 and n. 1, 877 N.Y.S.2d 375 [2d Dept.2009], lv. dismissed 13 N.Y.3d 855, 891 N.Y.S.2d 688, 920 N.E.2d 92 [2009] ). Although that precedent was ultimately held invalid by the Court of Appeals (see Matter of Cintron v. Calogero, 15 N.Y.3d 347, 912 N.Y.S.2d 498, 938 N.E.2d 931 [2010], revg. 59 A.D.3d 345, 874 N.Y.S.2d 76 [1st Dept.2009] ), DHCR's position was not rendered unjustified “simply because it lost the case” (Matter of New York State Clinical Lab., 85 N.Y.2d at 357, 625 N.Y.S.2d 463, 649 N.E.2d 811 [internal quotation marks omitted] ). We reject petitioner's contention that DHCR is required to make a heightened “strong showing” to demonstrate that its position was substantially justified (compare Ericksson v. Commr. of Social Sec., 557 F.3d 79, 82 n. [2d Cir.2009], with Matter of Graves v. Doar, 87 A.D.3d 744, 747, 928 N.Y.S.2d 771 [2d Dept.2011], and Matter of Barnett v. New York State Dept. of Social Servs., 212 A.D.2d 696, 697–698, 622 N.Y.S.2d 812 [2d Dept.1995], lv. dismissed 85 N.Y.2d 1032, 631 N.Y.S.2d 290, 655 N.E.2d 403 [1995] ).

Even if DHCR's position was not substantially justified, petitioner is not entitled to counsel fees and expenses under CPLR article 86, as he did not meet his burden of establishing that he is a “party” eligible for such an award (see CPLR 8601[b][1]; Matter of Hickey v. Sinnott, 179 Misc.2d 573, 574, 685 N.Y.S.2d 578 [Sup. Ct. Albany County 1998] ). In particular, petitioner failed to show that his net worth at the time he commenced the CPLR article 78 proceeding did not exceed $50,000 (see CPLR 8602[d][i]; Hickey, 179 Misc.2d at 574, 685 N.Y.S.2d 578). Indeed, in his opening papers in support of his application, petitioner failed even to allege that his net worth was less than or equal to $50,000. Although petitioner made such an allegation in an affidavit improperly submitted for the first time in his reply papers (see generally Lumbermens Mut. Cas. Co. v. Morse Shoe Co., 218 A.D.2d 624, 626, 630 N.Y.S.2d 1003 [1st Dept.1995] ), he failed to set forth any concrete facts to support his claim (see CPLR 8601[b][1] ), such as a statement of his assets and liabilities (see Broaddus v. U.S. Army Corps of Engineers, 380 F.3d 162, 169 [4th Cir.2004]; Hickey, 179 Misc.2d at 575, 685 N.Y.S.2d 578).