Key Points

  • The Appellate Division, First Department, unanimously reversed a Bronx County Supreme Court order awarding Groovy Vibes LLC attorneys' fees under 42 U.S.C. § 1988 and denied the fee motion.
  • The court held that Supreme Court lacked authority to award Section 1988 fees because the store's Article 78 petition asserted no substantial federal constitutional claim.
  • The petition sought relief solely on state-law grounds and never invoked the U.S. Constitution, 42 U.S.C. § 1983 or any federal right; the store raised federal arguments only after judgment, in support of its fee motion.
  • Applying its recent Local 621 decision, the court held that CPLR 7806 bars an attorney-fee award where no federal claim was pleaded in the petition.
  • The appeal concerned only the fee order; the June 2025 annulment of the OATH determination, summons and penalty was not before the panel.

A New York appeals court on Thursday threw out an attorney-fee award to a hemp store that had overturned a New York City Sheriff's Office summons for selling cannabis without a license. The court ruled that the store could not collect federal civil-rights fees because its lawsuit never raised a federal claim.

A four-justice panel of the Appellate Division, First Department, ruled unanimously for the Sheriff's Office and the city's Office of Administrative Trials and Hearings, known as OATH. The panel, with Justice Kapnick presiding and Justices Rosado, O'Neill Levy and Parker-Raso, reversed an October 2025 order by Justice Naita A. Semaj of State Supreme Court in Bronx County and denied the store's fee motion outright. The unsigned decision does not state how much the lower court had awarded.

The panel held that the store could not collect fees under 42 U.S.C. § 1988 because its petition pleaded no federal claim; the store raised federal arguments only after judgment, in support of its fee motion. The panel relied on a decision it issued recently in Matter of Local 621, S.E.I.U. v. New York City Dept. of Correction.

The dispute began on July 25, 2024, when the Sheriff's Office inspected the hemp store run by Groovy Vibes LLC for unlicensed cannabis sales, according to the decision. The office seized several products that it alleged were cannabis products and issued the store a summons.

At a hearing before OATH, a hearing officer sustained the summons and imposed a monetary penalty. Groovy Vibes then brought a proceeding under Article 78 of the Civil Practice Law and Rules.

By order dated June 3, 2025, State Supreme Court annulled the OATH determination, vacated the summons and set aside the penalty. Among other findings, the court concluded that the hearing officer's finding was not supported by substantial evidence and that "due process was compromised by the absence of any witness available for cross-examination."

The same order denied the store's request for attorneys' fees without prejudice to a properly supported application, which left room for a renewed motion. On June 30, 2025, Groovy Vibes moved for fees under Section 1988(b). The court granted the motion in an order entered on or about Oct. 10, 2025, and the city agencies appealed.

The appellate panel held that the trial court had no power to make the award. "Supreme Court lacked authority to award fees under 42 USC § 1988 because petitioner did not assert any substantial federal constitutional claim," the panel wrote, citing its 2018 decision in Matter of Dechbery v. Cassano.

The panel then turned to its Local 621 decision. That ruling held that Section 1988 fees are unavailable when a petitioner fails to meet what the court, quoting its 2004 decision in Jiggetts v. Dowling, called the "obligation to pursue [any] federal constitutional claims and, at the very least, put those claims before the court."

The store's petition did not meet that test, the court held. "Here, although petitioner challenged the procedural adequacy of the OATH hearing, its CPLR article 78 petition sought relief solely on state-law grounds; it never invoked the United States Constitution, 42 USC § 1983, or any federal right," the panel wrote.

The panel also pointed to when the store first made its federal case. "Petitioner raised federal arguments only after judgment, in support of its fee motion," the decision said.

Without a federal claim, state law controlled. CPLR 7806 foreclosed the award. "Because no federal claim was pleaded in the petition, CPLR 7806 bars an award of attorneys' fees, and the fee order must be reversed," the panel wrote.

The decision addressed only the October 2025 fee order. The panel did not revisit the June 2025 ruling that annulled the penalty and vacated the summons. It also did not say whether the store's complaint about the missing witness, had it been pleaded as a federal due-process claim, would have supported a fee award.

The decision does not summarize the parties' appellate briefs. It describes the store's position through the record: Groovy Vibes won on state-law grounds, then sought fees under the federal statute and advanced its federal arguments in support of that motion.

The Sheriff's Office and OATH were represented by the office of Corporation Counsel Steven Banks. Groovy Vibes was represented by Danielle D. Holmes of Hodgson Russ LLP in Saratoga Springs.

The panel reversed the fee order "on the law, without costs," and denied the fee motion, leaving no fee award in place. The decision, 2026 NY Slip Op 06523, is uncorrected and subject to revision before publication in the Official Reports.