Pursuant to New York State’s Equal Access to Justice Act (EAJA), Article 86 of the Civil Practice Law and Rules, litigants who commence a civil action against the state or a state administrative agency may be awarded attorney fees by the court unless the court finds that the state’s position was “substantially justified” or that “special circumstances make an award unjust.”1 Frequently, Article 78 petitioners who have successfully challenged an administrative determination will request an award of attorney fees.

An October 2012 decision from the Appellate Division, First Department, created a split between the Appellate Division departments concerning the government’s burden in proving whether its position was “substantially justified.” In Matter of Cintron v. Calogero,2 the First Department rejected arguments that an agency was required to make a heightened “strong showing” that its position was “substantially justified.” The First Department explicitly rejected the position of the Second Department, which as recently as 2011 had required state agencies to make a “strong showing” that their positions were “substantially justified.”3

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