Motor Network, Ltd. v. Martinez

In a proceeding pursuant to CPLR article 78 to review a determination of the respondent Raymond E Martinez, Commissioner of the New York State Department of Motor Vehicles, dated July 1, 2002, which denied the petitioner’s application for *912renewal and re-issuance of a special registration license plate, which was determined by judgment dated April 12, 2004, the petitioner appeals from an order of the Supreme Court, Nassau County (Roberto, J.), entered December 9, 2004, which denied its application for an award of an attorney’s fee and for costs pursuant to CPLR article 86.

Ordered that the order is affirmed, with costs.

Contrary to the petitioner’s contention, the Supreme Court providently exercised its discretion in finding that the respondent’s position was substantially justified (see CPLR 8601 [a]; Matter of Newman v Wing, 12 AD3d 515 [2004]). “ ‘[T]he mere fact that the government has lost the underlying case on the merits does not require that an attorney’s fee be awarded’ ” (Matter of Newman v Wing, supra at 516, quoting Matter of McCrimmon v Dowling, 247 AD2d 620, 621 [1998]). Absent an abuse of discretion, a determination by the Supreme Court that the respondent’s position was substantially justified is entitled to deference (see Matter of New York State Clinical Lab. Assn. v Kaladjian, 85 NY2d 346, 356 [1995]). Accordingly, we affirm. Miller, J.P., Ritter, Goldstein and Lunn, JJ., concur.