In Matter of A* Law v New York City Fire Dept., the Appellate Division, Second Department, addressed a dispute concerning attorney’s fees under New York’s Freedom of Information Law (FOIL). The petitioner, A* Law, had previously prevailed in compelling the New York City Fire Department (FDNY) to release certain records requested under FOIL. As a result, the Supreme Court awarded the firm $114,883 in attorneys’ fees and litigation costs.
On appeal, the AD2 agreed that the firm was entitled to an award of attorneys’ fees, noting that the lawyers had substantially prevailed in the FOIL proceeding and that the FDNY failed to offer a reasonable basis for withholding the records. The court also upheld the reasonableness of the firm’s hourly rates.
However, the Second Department found that the award improperly included fees incurred in litigating the fee application itself—commonly referred to as “fees on fees.” Under New York law, such fees are not recoverable unless authorized by a clear statutory or contractual provision. The court concluded that FOIL’s fee-shifting statute did not reflect an “unmistakably clear” legislative intent to permit recovery of fees on fees and thus should not be interpreted to include them.
Accordingly, the appellate court reversed the judgment and remitted the matter to the Kings County Supreme Court for a new hearing limited to determining the reasonable attorneys’ fees arising directly from the FOIL proceeding—excluding any fees related to litigating the fee award. The FDNY’s remaining contentions were deemed without merit.
This decision clarified that while prevailing FOIL litigants may recover attorneys’ fees, such recovery does not extend to the costs of securing those fees unless expressly permitted by the parties' agreement or governing law.
Looks like part of their claim got extinguished there ....
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DECISION