10. In an action or proceeding at law under this section or section
two hundred ninety-eight of this article, the commissioner or the court
may in its discretion award reasonable attorney's fees to any prevailing
or substantially prevailing party; provided, however, that a prevailing
respondent or defendant in order to recover such reasonable attorney's
fees must make a motion requesting such fees and show that the action or
proceeding brought was frivolous; and further provided that in a
proceeding brought in the division of human rights, the commissioner may
only award attorney's fees as part of a final order after a public
hearing held pursuant to subdivision four of this section. In no case
shall attorney's fees be awarded to the division, nor shall the division
be liable to a prevailing or substantially prevailing party for
attorney's fees, except in a case in which the division is a party to
the action or the proceeding in the division's capacity as an employer.
Expert witness fees may be awarded in the same manner as attorney's
fees. In cases of employment discrimination, a respondent shall only be
liable for attorney's fees under this subdivision if the respondent has
been found liable for having committed an unlawful discriminatory
practice. In order to find the action or proceeding to be frivolous, the
court or the commissioner must find in writing one or more of the
following: