The denial of petitioner's request for attorneys' fees pursuant to CPLR article 86 and/or 42 U.S.C. § 1988 was proper since petitioner was not a prevailing party, his proceeding to compel respondents' compliance with a Determination After Fair Hearing by the State Department of Social Services restoring his public assistance, medical assistance and food stamp benefits having been properly dismissed as moot (see, Buckhannon Bd. Care Home, Inc. v. W. Virginia Dept. of Health Human Resources, 532 U.S. 598; see also, Matter of Priester v. Dowling, 231 A.D.2d 638;Matter of Riley v. Dowling, 221 A.D.2d 446), and the State's position and conduct with respect to affording petitioner the relief sought in his petition was "substantially justified" (see, Matter of New York State Clinical Lab. Assn. v. Kaladjian, 85 N.Y.2d 346, 356-358; and see, Matter of Priester, supra; Matter of Riley, supra). The "catalyst theory," upon which petitioner relies, is no longer a viable basis for an award of attorney's fees (see, Buckhannon Bd. Care Home, Inc., supra; Matter of Auguste v. Hammons, 285 A.D.2d 417, 727 N.Y.S.2d 880).
The appealable portion of the second order presented for our review, denying renewal, should be affirmed inasmuch as petitioner's motion seeking renewal was not "based upon new facts not offered on the prior motion that would change the prior determination" (CPLR 2221[e][2]; see, Konrad v. 136 E. 64th St. Corp., 254 A.D.2d 110, lv denied 92 N.Y.2d 1042).
We have considered petitioner's remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.