Kimmel v. State

• Citation: 57 N.Y.S.3d 678,29 N.Y.3d 386,80 N.E.3d 370
• Parties: Betty L. KIMMEL, Respondent, v. STATE of New York et al., Appellants. Emmelyn Logan–Baldwin, Interested Party–Respondent.
• Decision Date: 09 May 2017
• Court: New York Court of Appeals Court of Appeals

29 N.Y.3d 386
80 N.E.3d 370
57 N.Y.S.3d 678

Betty L. KIMMEL, Respondent,
v.
STATE of New York et al., Appellants.

Emmelyn Logan–Baldwin, Interested Party–Respondent.

Court of Appeals of New York.

May 9, 2017.

57 N.Y.S.3d 680

Jaeckle Fleischmann & Mugel, LLP, Buffalo (Mitchell J. Banas, Jr. and Bradley A. Hoppe of counsel), for appellants.

Harris Beach PLLC, Pittsford (A. Vincent Buzard of counsel), and Harriet L. Zunno, Hilton, for Betty L. Kimmel, respondent.

Harris Beach PLLC, Pittsford (A. Vincent Buzard, Svetlana K. Ivy and Allison A. Bosworth of counsel), for Emmelyn Logan–Baldwin, respondent.

Empire Justice Center, Albany (Saima A. Akhtar and Susan C. Antos of counsel) and Legal Services of Central New York, Syracuse (Samuel Young of counsel), for Empire Justice Center and another, amici curiae.

OPINION OF THE COURT

Chief Judge DiFIORE.

29 N.Y.3d 390

Under the Equal Access to Justice Act (CPLR art. 86; hereinafter EAJA), in certain circumstances a court may award reasonable attorneys' fees and costs to a prevailing plaintiff or petitioner in a suit against the State. In this appeal we are asked to decide whether the EAJA permits the award of attorneys' fees and costs to a prevailing plaintiff in an action against the State under the Human Rights Law for sex discrimination in employment by a state agency. We conclude that it does.

I.

From 1980 through 1994, plaintiff Betty Kimmel worked as a New York State Trooper. During plaintiff's tenure, she was assigned to several different police stations, often as the first woman to serve as a State Trooper at that station. In 1995, plaintiff filed a complaint alleging that she was subjected to discrimination, sexual harassment, and retaliation based on her sex and was exposed to a hostile work environment. She sought back pay, front pay, benefits, compensatory damages, reasonable attorneys' fees, and an injunction restraining defendants from continuing their discriminatory practices. Defendants included the State of New York and the New York State Division of State Police (collectively, the State defendants), along with individual defendants not relevant to this appeal.

According to the complaint, and supporting exhibits, coworkers posted lewd cartoons portraying plaintiff naked and engaged in various sexual acts, suggested that plaintiff perform sexual acts on them and other coworkers and engaged in other harassing and hostile conduct, including a physical assault on plaintiff, which required emergency room treatment and doctor-ordered work leave.

Throughout the course of plaintiff's 14–year tenure, she made repeated complaints. In 1982, plaintiff made a sexual harassment claim under article 9 of the New York State Police Administrative Manual, but the harassment continued. When she was assaulted by a coworker in 1993, plaintiff requested a formal hearing, but was dissuaded from moving forward when her request to have a private attorney present was denied and her union representative suggested that she would not receive a fair hearing. Despite plaintiff's efforts, neither her supervisors

29 N.Y.3d 391

nor her Troop Commanders put a stop to her coworkers' offensive behavior. Plaintiff repeatedly sought legal assistance, but had difficulty finding an attorney to take her case.

In 1995, plaintiff commenced this litigation. The State defendants denied that the agency had engaged in any wrongdoing whatsoever, and asserted as a defense that "[a]ll actions taken by the defendants were official acts taken in the exercise of their discretion." Over the next 10 years, the State defendants repeatedly engaged in what the Appellate Division characterized as "obstructionist and delaying tactics"

57 N.Y.S.3d 681

( 261 A.D.2d 843, 845, 690 N.Y.S.2d 383 [4th Dept.1999] ), including their failure to comply with basic discovery requests. Eventually, based on their continued defiance of court orders, the Appellate Division struck the State defendants' answers (see 286 A.D.2d 881, 883, 730 N.Y.S.2d 896 [4th Dept.2001] ).

When the case went to trial over a decade after the complaint was filed, plaintiff prevailed and received a jury award of over $700,000. The jury award included past lost earnings of $160,000; past lost retirement earnings of $60,000; future lost retirement earnings of $491,000; and past pain and suffering of $87,000. Plaintiff's current and former counsel then sought attorneys' fees and costs under the EAJA.

Supreme Court held that attorneys' fees and costs could not be awarded in this action because the EAJA did not apply "where a plaintiff has recovered compensatory damages for tortious acts of the State and its employees."

The Appellate Division reversed in a split decision, holding that a plain reading of the EAJA and its definition of the term "action" compelled the conclusion that the EAJA applies to this case (76 A.D.3d 188, 191–194, 906 N.Y.S.2d 403 [4th Dept.2010] ). Although the Appellate Division noted that resort to the legislative history was unnecessary, it nonetheless observed that the legislative history supported its position. The Court concluded that if the legislature had not intended the EAJA to cover this type of case, then the legislature, and not the Court, was the appropriate body to resolve the issue (see 76 A.D.3d at 196, 906 N.Y.S.2d 403 ).

The dissent would have concluded that "the ‘spirit and purpose of the legislation,’ as gleaned from the statutory context and the legislative history," demonstrated that the EAJA should be applied only to review of administrative actions ( id. at 199, 906 N.Y.S.2d 403 [citation omitted] ).

29 N.Y.3d 392

Supreme Court subsequently entered a final judgment awarding plaintiff and her former counsel attorneys' fees and expenses. Defendants now appeal as of right pursuant to CPLR 5601(d), bringing the prior nonfinal Appellate Division order up for our review.

II.

We look "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 [2004] ). New York's EAJA is located in article 86 of the CPLR. CPLR 8601(a) provides in relevant part:

"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" (emphasis added).

CPLR 8602 defines the term "Action" as "any civil action or proceeding brought to seek judicial review of an action of the state as defined in subdivision (g) of this section, including an appellate proceeding, but does not include an action brought in the court of claims" ( CPLR 8602[a] ). Subdivision (g) defines "State" as "the state or any of its agencies or any of its officials acting in his or her official capacity" ( CPLR 8602 [g] ).

Thus, there are only two express limitations on the expansive term "any civil action." First, in CPLR 8601(a), the phrase "except as otherwise specifically provided by statute" makes clear that the EAJA applies "only where another statute does not specifically provide for counsel

57 N.Y.S.3d 682

fees" ( 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 [2005] ). It is undisputed that the Human Rights Law did not provide attorneys' fees at the time this suit was brought and was not amended to provide such fees until 2015 (see Executive Law § 297, as amended by L. 2015, ch. 364).¹ Second, in CPLR 8602(a),393 the definition of "action" excludes actions commenced in the Court of Claims. This case was brought in Supreme Court pursuant to Executive Law § 297(9), not in the Court of Claims. Accordingly, neither limitation on "any civil action" applies here.

We have repeatedly held that "the word ‘any ’ means ‘all’ or ‘every’ and imports no limitation " ( Zion v. Kurtz, 50 N.Y.2d 92, 104, 428 N.Y.S.2d 199, 405 N.E.2d 681 [1980] [emphasis added] ). Ignoring both that precedent and the "or" in the statutory definition ("any civil action or proceeding brought to seek judicial review" [emphasis added] ), the State defendants argue that the term "judicial review" in the definition of "action" places another express limitation on "any civil action," thereby excluding cases, like this one, that seek compensatory damages. According to the State defendants, the term judicial review modifies both "any civil action" and "proceeding" and, therefore, restricts EAJA awards to prevailing parties in CPLR article 78 proceedings, as well as a limited subset of civil actions seeking review of a state agency's administrative...