Sin Hang Lee v. Higgins

—In a proceeding pursuant to CPLR article 78 to review a determination of the Commissioner of New York State Division of Housing and Community Renewal dated September 29, 1989, which reduced the rent on the petitioner landlord’s apartments upon finding a decrease in services, the petitioner appeals from an order of the Supreme Court, Queens County (Di Tucci, J.), dated May 10, 1993, which denied his application for counsel fees and expenses pursuant to CPLR article 86.

Ordered that the order is affirmed, with costs to the respondent Richard L. Higgins, Commissioner of the New York State Department of Housing and Community Renewal.

This is an application by the petitioner, Sin Hang Lee, for an award of counsel fees and other expenses pursuant to CPLR article 86, commonly known as the New York Equal Access to Justice Act. This Act generally permits an award of counsel fees and expenses to the prevailing party in actions or proceedings commenced against the State on or after April 1, 1990 (see, CPLR 8601). Since this action was commenced on November 20, 1989, the petitioner is effectively barred from relief pursuant to this statute. CPLR article 86 is in derogation of the common law and therefore should be strictly *554construed (see, Matter of Peck v New York State Div. of Hous. & Community Renewal, 188 AD2d 327). The petitioner contends that he did not file his appeal until after April 1, 1990, and therefore the date on which he filed his appeal should be controlling for the purposes of CPLR article 86. This argument, however, is without merit since the petitioner could not have sought relief in this Court without first having commenced an action in the Supreme Court.

In any event, we find that the respondent’s position was "substantially justified” (CPLR 8601 [a]; see also, Matter of Scibilia v Regan, 199 AD2d 736). Ritter, J. P., Copertino, Joy and Hart, JJ., concur.