N.Y. Agriculture & Markets Law § 308-a: Fees and expenses in certain private nuisance actions

§ 308-a. Fees and expenses in certain private nuisance actions. 1.

Definitions. For purposes of this section:

a. "Action" means any civil action brought by a person in which a

private nuisance is alleged to be due to an agricultural practice on any

land in an agricultural district or subject to agricultural assessments

pursuant to section three hundred three or three hundred six of this

article, respectively.

b. "Fees and other expenses" means the reasonable expenses of expert

witnesses, the reasonable cost of any study, analysis, consultation with

experts, and like expenses, and reasonable attorney fees, including fees

for work performed by law students or paralegals under the supervision

of an attorney, incurred in connection with the defense of any cause of

action for private nuisance which is alleged as part of a civil action

brought by a person.

c. "Final judgment" means a judgment that is final and not appealable,

and settlement.

d. "Prevailing party" means a defendant in a civil action brought by a

person, in which a private nuisance is alleged to be due to an

agricultural practice, where the defendant prevails in whole or in

substantial part on the private nuisance cause of action.

2. Fees and other expenses in certain private nuisance actions. a.

When awarded. In addition to costs, disbursements and additional

allowances awarded pursuant to sections eight thousand two hundred one

through eight thousand two hundred four and eight thousand three hundred

one through eight thousand three hundred three-a of the civil practice

law and rules, and except as otherwise specifically provided by statute,

a court shall award to a prevailing party, other than the plaintiff,

fees and other expenses incurred by such party in connection with the

defense of any cause of action for private nuisance alleged to be due to

an agricultural practice, provided such agricultural practice

constitutes a sound agricultural practice pursuant to an opinion issued

by the commissioner under section three hundred eight of this article,

prior to the start of any trial of the action or settlement of such

action, unless the court finds that the position of the plaintiff was

substantially justified or that special circumstances make an award

unjust. Fees shall be determined pursuant to prevailing market rates for

the kind and quality of the services furnished, except that fees and

expenses may not be awarded to a party for any portion of the litigation

in which the party has unreasonably protracted the proceedings.

b. Application for fees. A party seeking an award of fees and other

expenses shall, within thirty days of final judgment in the action,

submit to the court an application which sets forth (i) the facts

supporting the claim that the party is a prevailing party and is

eligible to receive an award under this section, (ii) the amount sought,

and (iii) an itemized statement from every attorney or expert witness

for which fees or expenses are sought stating the actual time expended

and the rate at which such fees and other expenses are claimed.

3. Interest. If the plaintiff appeals an award made pursuant to this

section and the award is affirmed in whole or in part, interest shall be

paid on the amount of the award. Such interest shall run from the date

of the award through the day before the date of the affirmance.

4. Applicability. a. Nothing contained in this section shall be

construed to alter or modify the provisions of the civil practice law

and rules where applicable to actions other than actions as defined by

this section.

b. Nothing contained in this section shall affect or preclude the

right of any party to recover fees or other expenses authorized by

common law or by any other statute, law or rule.