Peach v. Russi

—Order unanimously reversed on the law without costs and motion denied. Memorandum: The Parole Board denied petitioner release on parole based on the severity of his offenses and that denial was upheld on administrative appeal. In a CPLR article 78 proceeding, Supreme Court determined that the Parole Board had given insufficient reasons for its decision and ordered a new hearing. Thereafter, petitioner moved successfully for counsel fees pursuant to CPLR article 86.

Respondent contends on appeal that the court abused its *1018discretion in granting counsel fees to petitioner because, even though a rehearing was ordered, respondent was "substantially justified” in taking the position that the reasons given for denying parole were adequate (CPLR 8601 [a]; see, Matter of New York State Clinical Lab. Assn. v Kaladjian, 85 NY2d 346; Matter of Scibilia v Regan, 199 AD2d 736, 737). We agree (see, Matter of Walker v Russi, 176 AD2d 1185, lv dismissed 79 NY2d 897; People ex rel. Thomas v Superintendent, 124 AD2d 848, lv denied 69 NY2d 611). (Appeal from Order of Supreme Court, Oneida County, Grow, J.—Counsel Fees.) Present— Green, J. P., Pine, Callahan, Doerr and Davis, JJ.