Kimmel v. State

• Decision Date: 28 March 2014
• Citation: 115 A.D.3d 1323,983 N.Y.S.2d 177,2014 N.Y. Slip Op. 02174
• Court: New York Supreme Court — Appellate Division
• Parties: Betty L. KIMMEL, Plaintiff–Respondent, v. STATE of New York and New York State Division of State Police, Defendants–Appellants. Emmelyn Logan–Baldwin, Interested Party–Respondent.

115 A.D.3d 1323
983 N.Y.S.2d 177
2014 N.Y. Slip Op. 02174

Betty L. KIMMEL, Plaintiff–Respondent,
v.
STATE of New York and New York State Division of State Police, Defendants–Appellants.
Emmelyn Logan–Baldwin, Interested Party–Respondent.

Supreme Court, Appellate Division, Fourth Department, New York.

March 28, 2014.

Jaeckle Fleischmann & Mugel, LLP, Buffalo (Bradley A. Hoppe of Counsel), for Defendants–Appellants.

[983 N.Y.S.2d 178]

Harriet L. Zunno, Hilton, for Plaintiff–Respondent.

Harris Beach PLLC, Pittsford (A. Vincent Buzard of Counsel), for Interested Party–Respondent.

PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, and SCONIERS, JJ.

MEMORANDUM:

Plaintiff commenced the instant action in May 1995, alleging sex discrimination, sexual harassment, and retaliation under the Human Rights Law (Executive Law § 296) and Civil Rights Law §§ 40–c and 40–d. There have been numerous appeals since 1999 in this matter and, most recently, we determined that plaintiff and her former attorney, interested party Emmelyn Logan–Baldwin, were entitled to seek attorneys' fees and expenses under CPLR article 86, i.e., the New York State Equal Access to Justice Act (EAJA) ( Kimmel v. State of New York, 76 A.D.3d 188, 906 N.Y.S.2d 403). Upon remittal to Supreme Court, the parties stipulated to the amount of the attorneys' fees. The parties however, litigated the issue whether plaintiff met her burden of establishing that, at the time the action was commenced, her net worth was less than $50,000 ( seeCPLR 8602[d][i] ). The EAJA authorizes “the recovery of counsel fees and other reasonable expenses in certain actions against the state of New York, similar to the provisions of federal law contained in 28 U.S.C. § 2412[d] [federal EAJA] and the significant body of case law that has evolved thereunder” (CPLR 8600). In contrast to the EAJA, however, we note that the federal EAJA requires a prevailing party seeking counsel fees and expenses to establish a net worth of not more than $2 million ( see28 USC § 2412[d][2][B] ).

In addition to her own affidavit, plaintiff submitted a bankruptcy petition that was filed on July 5, 1995. The petition reflects that plaintiff and her husband retained an attorney for the bankruptcy on May 30, 1995, six days after this action was commenced. Plaintiff also submitted the affidavit of a certified public accountant (CPA), who prepared a “statement of financial condition” of plaintiff and averred “with a reasonable degree of accounting certainty”...