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In a proceeding pursuant to CPLR article 78, inter alia, to review a determination of the State Commissioner of Social Services, dated March 16, 1977 and made after a statutory fair hearing, which, inter alia, affirmed a determination of the local agency to deny petitioner a burial assistance grant in the sum of $650 for her deceased son, petitioner appeals, as limited by her brief, from so much of a judgment of the Supreme Court, Westchester County, entered November 18, 1977, as denied her application for an attorneys fee. Judgment affirmed insofar as appealed from, without costs or disbursements. The sole issue on this appeal is whether it was an abuse of discretion to deny petitioners application for an attorneys fee. The petitioner, represented by Westchester Legal Services, Inc., commenced this proceeding to review a determination by the respondent State commissioner which affirmed a determination of the local agency denying her a burial assistance grant and further directed recoupment of an advance in petitioners public assistance allocation. The petition contains several allegations, including the claim that the denial of burial assistance constituted a denial of petitioners rights under the equal protection clause of the Fourteenth Amendment to the United States Constitution and that the petitioner was therefore entitled to damages pursuant to section 1983 of title 42 of the United States Code. Based upon the civil rights claim, the petition also requested an award of an attorneys fee pursuant to section 1988 of title 42 of the United States Code. Special Term substantially granted the requested relief vis-a-vis the denial of the burial assistance, but denied so much of the petition as requested damages and a counsel fee. Section 1983 of title 42 provides: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." In pertinent part, section 1988 of title 42 provides: "In any action or proceeding to enforce a provision of sections * * * 1983 * * * of this title * * * the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorneys fee as part of the costs." At the outset, we unequivocally hold that section 1988 of title 42 of the United States Code is fully applicable to proceedings pending in the courts of this State, even in the absence of an express New York statutory provision. However, the determination that State courts have an abstract power to grant an attorneys fee does not mean that such an award is appropriate in every case. The present proceeding is one such case where it is appropriate. Without passing on the merits of the underlying proceeding, it is apparent here that there is no bona fide civil rights claim pursuant to section 1983 of title 42 of the United States Code. Rather, this proceeding concerns no more than an administrative construction and application of a State statute (Social Services Law, § 141). Our review of Special Terms decision reveals that its language concerning equal protection of the laws for that class of persons who are poor negotiators is wholly unnecessary to the result and is of dubious constitutional validity. Similarly, the injection of a civil rights claim under section 1988 of title 42 of the United States [66 A.D.2d 844 Page 845]

Professional & Technical
December 26
LawApp Publishers
Innodata Book Distribution Services Inc

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