Kimmel v. State

• Decision Date: 18 June 2010
• Citation: 76 A.D.3d 188,906 N.Y.S.2d 403
• Parties: Betty L. KIMMEL, Plaintiff-Appellant, v. STATE of New York and New York State Division of State Police, Defendants-Respondents. Emmelyn Logan-Baldwin, Appellant.
• Court: New York Supreme Court — Appellate Division

906 N.Y.S.2d 403 76 A.D.3d 188 Betty L. KIMMEL, Plaintiff-Appellant, v. STATE of New York and New York State Division of State Police, Defendants-Respondents. Emmelyn Logan-Baldwin, Appellant. Supreme Court, Appellate Division, Fourth Department, New York. June 18, 2010.

Harriet L. Zunno, Hilton, for Plaintiff-Appellant.

Williams & Williams, Rochester (Mitchell T. Williams of Counsel), for Appellant.

Jaeckle, Fleischmann & Mugel, LLP, Buffalo (Mitchell J. Banas, Jr., of Counsel), for Defendants-Respondents.

PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, GREEN, AND GORSKI, JJ.

PERADOTTO, J.

The primary question presented by this appeal is whether a prevailing plaintiff in a sex discrimination action against the State may recover attorneys' fees and expenses pursuant to the New York State Equal Access to Justice Act ( [EAJA] CPLR art. 86). We agree with plaintiff and her former attorney, appellant Emmelyn Logan-Baldwin, that they are entitled to seek attorneys' fees and expenses under the plain language of the EAJA.

Facts and Procedural History

Plaintiff, a former State Trooper, commenced this action in 1995 alleging that she was subjected to discrimination on thebasis of sex and to acts of sexual harassment and retaliation; she also alleged that she was exposed to a hostile work environment for approximately 15 years. Plaintiffasserted violations of, inter alia, the Human Rights Law (Executive Law art. 15) and sought compensatory damages, declaratory and injunctive relief, and reinstatement as a State Trooper. Plaintiff was awarded damages upon a jury verdict in her favor, and this Court affirmed that judgment on a prior appeal ( Kimmel v. State of New York, 49 A.D.3d 1210, 853 N.Y.S.2d 779, lv. dismissed 11 N.Y.3d 729, 864 N.Y.S.2d 381, 894 N.E.2d 644). Thereafter, plaintiff and Logan-Baldwin each moved for, inter alia, an award of attorneys' fees and expenses pursuant to the EAJA. In opposition to the motions, defendants contended, inter alia, that the EAJA does not apply to this action and that the fees sought by plaintiff and Logan-Baldwin were unreasonable.

Logan-Baldwin's attorney issued a subpoena duces tecum directing the attorneys for defendants, Jaeckle, Fleischmann & Mugel, LLP (JFM), to produce

"[a]ll documents, including but not limited to invoices, statements and New York State Standard Vouchers submitted by you to the State of New York for legal and paralegal services rendered by any member or employee of your firm and expenses and disbursements incurred in connection with your representation of any of the following parties to the above action,"

which included defendants and former defendants.

Plaintiff's attorney likewise issued a subpoena duces tecum directing JFM to produce

"[a]ll documents, including but not limited to invoices, statements and New York State Standard Voucher[s] submitted by you to the State of New York for legal and other non-attorney personnel services rendered by you and any member and/or employee of the firm of [JFM] and expenses and disbursements incurred in connection with your representation of the following parties,"

which also included defendants and a former defendant.

Defendants moved to quash the subpoenas pursuant to CPLR 2304 contending, inter alia, that their fee records were irrelevant to the court's determination of the reasonableness of the legal fees incurred by plaintiff.

Plaintiff and Logan-Baldwin appeal from the order denying their respective motions for, inter alia, attorneys' fees and expensespursuant to the EAJA. Supreme Court concluded that "the EAJA does not apply to a situation where a plaintiff has recovered compensatory damages for tortious acts of the State and its employees." The court also in effect granted defendants' motions to quash the subpoenas. We conclude that the order should be reversed insofar as appealed from inasmuch as the court erred in determining that the EAJA is inapplicable to this action and in granting in their entirety defendants' motions to quash the subpoenas.

The Motions of Plaintiff and Logan-Baldwin

New York enacted the EAJA in 1989 in order "to create a mechanism authorizing the recovery of counsel fees and other reasonable expenses in certain actions against the state of New York" (CPLR 8600). The purpose of the EAJA is "to assist economically disadvantaged litigants in obtaining legal assistance in the prosecution of actions seeking to obtain redress from wrongful actions of the state" ( Matter of Scott v. Coleman, 20 A.D.3d 631, 631, 798 N.Y.S.2d 547, lv. dismissed 5 N.Y.3d 880, 808 N.Y.S.2d 143, 842 N.E.2d 29). To that end, the EAJA provides that eligible parties who prevail in a civil action against the State are entitled to legal fees and other expenses incurred in the prosecutionof that action ( see CPLR 8601 [b] ). Eligible parties include those individuals "whose net worth, not including the value of a homestead used and occupied as a principal residence, did not exceed [$50,000] at the time the civil action was filed" (CPLR 8602 [d][i] ).

1. The Plain Meaning of the EAJA

In determining the applicability of the EAJA to this action, it is axiomatic that we must "turn first to the plain language of the statute[ ] as the best evidence of legislative intent" ( Matter of Malta Town Ctr. I, Ltd. v. Town of Malta Bd. of Assessment Review, 3 N.Y.3d 563, 568, 789 N.Y.S.2d 80, 822 N.E.2d 331; see Majewski v. Broadalbin-Perth Cent. School Dist., 91 N.Y.2d 577, 583, 673 N.Y.S.2d 966, 696 N.E.2d 978). CPLR 8601(a) states that,

"except as otherwise specifically provided by statute, a court shall award to a prevailing party, other than the state, fees and other expenses incurred by such party in any civil action brought against the state, unless the court finds that the position of the state was substantially justified or that special circumstances make an award unjust."

The EAJA defines " '[a]ction' " as "any civil action or proceedingbrought to seek judicial review of an action of the state as defined in subdivision (g) of [CPLR 8602], including an appellate proceeding, but does not include an action brought in the court of claims" (CPLR 8602[a] ). CPLR 8602(g) defines " '[s]tate' " as "the state or any of its agencies or any of its officials acting in his or her official capacity."

We conclude that, under a plain reading of the statute, the EAJA applies to this action. The EAJA unambiguously applies to " any civil action brought against the state" (CPLR 8601[a] [emphasis added]; see Matter of Greer v. Wing, 95 N.Y.2d 676, 680, 723 N.Y.S.2d 123, 746 N.E.2d 178), "except as otherwise specifically provided by statute" (CPLR 8601[a] ). As defendants acknowledge, the Human Rights Law does not specifically provide for counsel fees ( see Executive Law art. 15) and, accordingly, this action does not fall within that statutory exception ( cf. Matter of Beechwood Restorative Care Ctr. v. Signor, 5 N.Y.3d 435, 443, 808 N.Y.S.2d 568, 842 N.E.2d 466). The only other statutory exception is for "action[s] brought in the court of claims" (CPLR 8602[a] ). The instant action was commenced in Supreme Court pursuant to Executive Law § 297(9) and thus does not fall within that exception.

Contrary to the contention of defendants and the conclusion of the court, there is nothing in the text of the EAJA that limits recovery of attorneys' fees to CPLR article 78 proceedings or to declaratory judgment actions. Indeed, if the Legislature had intended the EAJA to apply exclusively to those types of proceedings, then the language excluding actions commenced in the Court of Claims would be unnecessary inasmuch as such proceedings do not generally fall within that court's limited jurisdiction ( see Court of Claims Act § 9; Matter of Capruso v. New York State Police, 300 A.D.2d 27, 28, 751 N.Y.S.2d 179 [the State is "not a 'body or officer' against whom a CPLR article 78 proceeding may be brought"]; Ferrick v. State of New York, 198 A.D.2d 822, 823, 605 N.Y.S.2d 716 [same]; Wikarski v. State of New York, 91 A.D.2d 1174, 459 N.Y.S.2d 143 [Court of Claims generally does not have authority to render a declaratory judgment] ). It is well established that "legislation is to be interpreted so as to give effect to every provision ... [, and a] construction that would render a provision superfluous is to be avoided"( Majewski, 91 N.Y.2d at 587, 673 N.Y.S.2d 966, 696 N.E.2d 978).

Moreover, the EAJA was modeled on its federal counterpart that, notably, is not limited to proceedings brought to review administrative determinations. Rather, the federal Equal Access to Justice Act provides that,

"[e]xcept as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses ... incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States" (28 USC 2412[d][1][A] ).

We agree with plaintiff and Logan-Baldwin that the court improperly characterized this action as a "tort action." "A discrimination claim under the Human Rights Law is an action created by statute, which did not exist at common law, and therefore cannot give rise to tort liability" ( Monsanto v. Electronic Data Sys. Corp., 141 A.D.2d 514, 515, 529 N.Y.S.2d 512; see also Mills v. County of Monroe, 89 A.D.2d 776, 453 N.Y.S.2d 486, affd. 59 N.Y.2d 307, 464 N.Y.S.2d 709, 451 N.E.2d 456, cert. denied 464 U.S. 1018, 104 S.Ct. 551, 78 L.Ed.2d 725; Polvino v. Island Group Admin., 264 A.D.2d 720, 694 N.Y.S.2d 728). In any event, "tort actions" are not specifically excluded from the scope of the EAJA ( see CPLR 8602[a]; see generally Matter of Alfonso v. Fernandez, 167 Misc.2d 793, 798, 635 N.Y.S.2d 932 [CPLR 8601 "applies to actions in any civil litigation ... includ(ing) actions brought to enforce one's civil rights, or to remedy a violation thereof, against the State"] ).

Generally, where the language of a statute is clear and...