Rourke v. New York State Department of Correctional Services , 638 N.Y.S.2d 190 ( 1996 )

—Yesawich Jr., J.

Appeal from an order of the Supreme Court (Keegan, J.), entered April 6, 1995 in Albany County, which, in a proceeding pursuant to CPLR article 78, inter alia, granted petitioner’s application pursuant to 42 USC § 1988 for an award of counsel fees.

The relevant facts underlying this proceeding are detailed in Matter of Rourke v New York State Dept. of Correctional Servs. (201 AD2d 179), where we held that petitioner, a full-blooded Native American and practitioner of the traditional religion of the Mohawk Nation, had been wrongfully terminated from his employment as a correction officer because of his refusal to cut his hair, in violation of his right under New York’s Constitution to freely exercise his religion. Petitioner’s claim that his Federal constitutional rights were violated was not reached. Thereafter, by separate motions, petitioner moved for an award of reasonable counsel fees pursuant to 42 USC § 1988 and CPLR article 86. Citing Matter of Johnson v Blum (58 NY2d 454, 458, n 2), Supreme Court determined that petitioner qualified for a counsel fee award pursuant to 42 USC § 1988. The court found petitioner’s fee request of $81,658 to be excessive, however, in light of petitioner’s representation by Cornell Law School’s Civil Liberties Clinic, and concluded that $25,000 would be an appropriate sum. Petitioner appeals.

Petitioner maintains, and respondent agrees, that inasmuch as Supreme Court failed to specify how it arrived at the $25,000 figure, the matter must be remitted for a redetermination of the fee award, taking into account all of the appropriate guidelines and factors (see, Matter of Thomas v Coughlin, 194 AD2d 281, 284; Matter of Rahmey v Blum, 95 AD2d 294, 300-305). We so order. Parenthetically, we find the fact that petitioner, was represented by a law school clinic is not an appropriate ground for the automatic reduction of an award of counsel fees pursuant to 42 USC § 1988 (see, Matter of Rahmey v Blum, supra, at 305).

Mikoll, J. P., Mercure, Crew III and White, JJ., concur. Ordered that the order is modified, on the law, with costs to petitioner, by remitting the matter to the Supreme Court for further proceedings not inconsistent with this Court’s decision, and, as so modified, affirmed.