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Consolidated Edison Co. v. Realty Invs. Assocs.

Citation: 12 ELR 20208
No. No. 79-Civ.-618 (WCC), 524 F. Supp. 150/16 ERC 1535/(S.D.N.Y., 07/14/1981)

The district court denies defendants' motion for recovery of attorney fees incurred in defending a lawsuit brought pursuant to §304 of the Clean Air Act. Plaintiff had sought to enjoin defendants from continuing construction of cogeneration equipment because of defendants' alleged failure to obtain a preconstruction permit from the Environmental Protection Agency (EPA). The lawsuit was subsequently dismissed on consent of the parties. The court holds that defendants are not entitled to recovery of attorney fees because plaintiff's lawsuit, although ultimately unsuccessful, was neither frivolous, unreasonable, nor harassing. Initially, the court rules that plaintiff's motive in commencing the lawsuit, whether based on economic motives or environmental concerns, is irrelevant since the question of fees turns on the objective reasonableness of plaintiff's action. Since the action was not commenced without a reasonable foundation, and it was not unreasonable for plaintiff to maintain the lawsuit for almost two years after learning that an EPA employee had advised defendants by letter that were not required to obtain a preconstruction permit, defendants' motion must be denied.

Counsel for Plaintiff
Ernest J. Williams
Consolidated Edison Co. of NY, Inc.
4 Irving Place, New York NY 10003
(212) 460-4600

Counsel for Defendants
Seymour D. Lewis
Rosenman, Colin, Freund, Lewis & Cohen
575 Madison Ave., New York NY 10022
(212) 940-8800