In the Matter of Bruce Peach, Respondent, v. Raul Russi, as Chairman of the New York State Division of Parole, Appellant

In the Matter of Bruce Peach, Respondent, v Raul Russi, as Chairman of the New York State Division of Parole, Appellant. [625 NYS2d 975] [MAJORITY] —Order unanimously reversed on the law without costs and motion denied. Memorandum: The Parole Board denied petitioner release on parole based on the severity of his offenses and that denial was upheld on administrative appeal. In a CPLR article 78 proceeding, Supreme Court determined that the Parole Board had given insufficient reasons for its decision and ordered a new hearing. Thereafter, petitioner moved successfully for counsel fees pursuant to CPLR article 86. Respondent contends on appeal that the court abused its discretion in granting counsel fees to petitioner because, even though a rehearing was ordered, respondent was "substantially justified” in taking the position that the reasons given for denying parole were adequate (CPLR 8601 [a]; see, Matter of New York State Clinical Lab. Assn. v Kaladjian, 85 NY2d 346; Matter of Scibilia v Regan, 199 AD2d 736, 737). We agree (see, Matter of Walker v Russi, 176 AD2d 1185, lv dismissed 79 NY2d 897; People ex rel. Thomas v Superintendent, 124 AD2d 848, lv denied 69 NY2d 611). (Appeal from Order of Supreme Court, Oneida County, Grow, J.—Counsel Fees.) Present— Green, J. P., Pine, Callahan, Doerr and Davis, JJ.