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Tyk v. Equifax Credit Information Services, Inc.

195 Misc. 2d 566 Court Supreme Court, Appellate Term, Second Department, Decision date 2003-01-23 English

Contents

Majority

p. 566
[758 NYS2d 761]
Shamai Tyk, Appellant, v Equifax Credit Information Services, Inc., Respondent.
Supreme Court, Appellate Term, Second Department,
January 23, 2003
APPEARANCES OF COUNSEL
Aaron Tyk, Brooklyn, for appellant. Ross & Hardies, New York City (Christine Fecko of counsel), and Kilpatrick Stockton LLP, Atlanta, Georgia (Bradley J. Miller of counsel), for respondent.

OPINION OF THE COURT

Memorandum.

Order unanimously affirmed with $10 costs.

p. 567
Plaintiff, having sued defendant to recover damages under the Fair Credit Reporting Act ( 15 USC § 1681 et seq.) and having recovered a judgment against defendant, seeks to recover attorney’s fees. We note that the judgment awarding damages to plaintiff did not award attorney’s fees and plaintiff never appealed from that judgment. After defendant filed its notice of appeal from the judgment, plaintiff moved to dismiss the appeal on the ground that it was untimely. The motion was granted by this court and defendant’s motion for leave to appeal was denied by this court. A similar motion was made to the Appellate Division and was likewise denied. In opposition to said latter two motions, plaintiff never alleged that they were frivolous or were being made to harass plaintiff or to delay the resolution of the litigation.

In order to be entitled to an award of attorney’s fees pursuant to 15 USC § 1681n (c), more must be shown than simply prevailing in litigation. It must be shown that the party who did not prevail acted in bad faith or for purposes of harassment (15 USC § 1681n [c]; Edge v Professional Claims Bur., 64 F Supp 2d 115 , 119 [1999], affd 234 F3d 1261 [2d Cir 2001]). Plaintiff has failed to demonstrate his right to recover the fees in that he failed to show that defendant’s actions were in bad faith, for the purpose of harassment or to delay the resolution of the underlying litigation. Further, plaintiffs opposition to defendant’s appeal and motions relating thereto cannot be deemed an action to enforce liability pursuant to 15 USC § 1681n (a) (3).

Pesce, P.J., Patterson and Golia, JJ., concur.

Statutes and regulations cited