Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kimmel v. State

New York Court of Appeals

May 9, 2017

Betty L. Kimmel, Respondent,
State of New York et al., Appellants. Emmelyn Logan-Baldwin, Interested Party-Respondent.

          Mitchell J. Banas, Jr., for appellants.

          A. Vincent Buzard, for respondents Kimmel and Logan-Baldwin.

          Empire Justice Center et al.; Legal Services of Central New York, amici curiae.


         Under the Equal Access to Justice Act (CPLR article 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.


         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 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 ten years, the State defendants repeatedly engaged in what the Appellate Division characterized as "obstructionist and delaying tactics" (261 A.D.2d 843, 845 [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 [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 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 [1] 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 [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).

         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 [citation omitted]).

         Supreme Court subsequently entered a final judgment awarding plaintiff and intervenor 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.


         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 [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"

(CPLR 8601 [a] [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 fees" (Matter of Beechwood Restorative Care Ctr. v Signor, 5 N.Y.3d 435, 443 [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) [2]. Second, in CPLR 8602 (a), 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 [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 article 78 proceedings, as well as a limited subset of civil actions seeking review of a state agency's administrative actions. We disagree.

         In interpreting the term "action" we are guided by the principle that a statute should be construed to avoid rendering any of its provisions superfluous (see Majewski v Broadalbin-Perth Cent. School Dist., 91 N.Y.2d 577, 587 [1998]). Neither article 78 proceedings nor declaratory judgment actions against the State can be brought in the Court of Claims (see CPLR 3001; 7804; cf. Court of Claims Act § 9 [9-a]), instead they must be brought in Supreme Court. Likewise, the Court of Claims does not have jurisdiction over actions for injunctive relief (see Court of Claims Act § 9; Psaty v Duryea, 306 NY 413, 416 [1954]). Under the State defendants' interpretation, therefore, the statutory exclusion for "an action brought in the court of claims" would have no meaning (CPLR 8602 [a]). [3]

         Additionally, before the EAJA was enacted, we held that Human Rights Law claims seeking monetary relief against the State could be brought in Supreme Court (see Koerner v State of N.Y., Pilgrim Psychiatric Ctr., 62 N.Y.2d 442');">62 N.Y.2d 442, 449 [1984]). When the legislature enacted the EAJA five years later, it is presumed to have known of our decision (see Arbegast v Board of Educ. of S. New Berlin Cent. School, 65 N.Y.2d 161, 169 [1985]); thus, the Court of Claims exclusion was not intended to exclude Human Rights Law claims from eligibility for an EAJA award. Indeed, in Koerner, we observed that discrimination is "all the more invidious... when it is practiced by the State" (62 N.Y.2d at 448), providing the legislature with all the more reason to permit Human Rights Law claims such as this one to be eligible for an award of attorneys' fees under the EAJA.

         Other principles of statutory interpretation guide our reading as well. Where the legislature has addressed a subject and provided specific exceptions to a general rule - as it has done here - the maxim expressio unius est exclusio alterius applies (see McKinney's Cons Laws of NY, Book 1, Statutes § 240, at 412-413 ["where a statute creates provisos or exceptions as to certain matters the inclusion of such provisos or exceptions is generally considered to deny the existence of others not mentioned"]). The State defendants ask us to create yet another exception to the statutory term "any civil action." To do so, however, would give effect to an assumed legislative intent by judicial construction.

         The State defendants offer an additional explanation for how the term "judicial review" impacts the phrase "any civil action or proceeding brought to seek judicial review of an action of the state" (CPLR 8602 [a]). They argue that the term "judicial review" is used to clarify that there can be no fees awarded with respect to agency proceedings that take place before the aggrieved individual, small business, or not-for-profit entity goes into court to appeal - by way of "judicial review" (i.e., court review) - an adverse agency ruling. Indeed, both the State defendants and intervenor agree that the term "judicial review" was used to clarify that EAJA fee awards are not available in connection with administrative agency proceedings that precede court review (see e.g. Matter of Greer v Wing, 95 N.Y.2d 676, 680 [2001]). We agree. By interpreting "judicial review" in this way - to modify solely the term "proceeding" - this portion of the definition of "action" is harmonized with the rest of the definition and the Court of Claims exclusion is not rendered meaningless. [4]

         Our conclusion is also consistent with the EAJA's statutory scheme. CPLR 8600 provides that the "intent" of the EAJA was to create a mechanism comparable to that in the federal Equal Access to Justice Act (federal EAJA), which is set forth in 28 USC § 2412 (d). The federal EAJA provides:

"Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), 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 in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust"

(28 USC § 2412[d] [1] [A] [emphasis added]). The federal EAJA undisputedly applies to "any civil action" brought against the United States except for those sounding in tort. In our statute, the Court of Claims exclusion is the equivalent of the federal exclusion of tort actions, since tort claims against the State can only be brought in the Court of Claims [5]. Likewise, our EAJA's reference to a "proceeding brought to seek judicial review" was meant to mirror similar language in the federal EAJA. The dissent ignores the fact that the phrase in the federal EAJA "including proceedings for judicial review of agency action" was not even in the federal EAJA when it was first enacted, but was added in 1985 to overrule a federal decision, which held that the federal EAJA did not apply to court review of administrative agency rulings (see Gregory C. Sisk, The Essentials of the Equal Access to Justice Act: Court Awards of Attorney's Fees for Unreasonable Government Conduct [Part One], 55 La L Rev 217, 230, 230 n 75 [November 1994], citing to Natl. Wildlife Fedn. v F.E.R.C., 870 F.2d 542, 543 [9th Cir 1989]). Indeed, the addition of this phrase in the federal EAJA was intended to clarify the expansiveness of the statute's coverage by acknowledging that agency rulings reviewed by the courts, as well as all other civil actions with the exception of tort actions, were eligible for awards. Thus, our reading of "proceeding brought to seek judicial review" in the EAJA is entirely consistent with its federal counterpart.

         Further, at the time our EAJA was passed, federal courts in New York had already held that the federal EAJA was a remedial statute (see Barriger v Bowen, 673 F.Supp. 1167, 1169 [ND NY 1987]; Envtl. Defense Fund, Inc. v Watt, 554 F.Supp. 36, 41 [ED NY 1982]) [6]. New York's EAJA is a remedial statute as well. As such, it should be "liberally construed to carry out the reforms intended and to promote justice" (McKinney's Cons Laws of NY, Book 1, Statutes § 321), and "interpreted broadly to accomplish [its] goals" (People v Brown, 25 N.Y.3d 247, 251 [2015]; see also Matter of Scanlan v Buffalo Pub. School Sys., 90 N.Y.2d 662, 676 [1997]; Post v 120 E. End Ave. Corp., 62 N.Y.2d 19, 24 [1984]). [7]

         The purpose of the EAJA is "[t]o encourage individuals, small businesses and not-for-profit corporations to challenge state action when it lacks substantial justification by allowing them to recover fees and litigation expenses" (Assembly Mem, Bill Jacket, L 1989, ch 770 at 10 [emphasis added]). The State defendants' restrictive interpretation of "any civil action" is inconsistent with these goals. Moreover, we have held that limitations should not be read into such remedial statutes "unless the limitation[s] proposed [are] 'clearly expressed'" (Brown, 25 N.Y.3d at 251, quoting People v Sosa, 18 N.Y.3d 436, 440-441 [2012]). As noted, there are only two clear ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.