NY Agric & Mkts L § 308-A (2021)
2021 New York Laws AGM - Agriculture and Markets Article 25-AA - Agricultural Districts 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.