2023 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.