The Court of Appeals’ October Session Concludes: Arguments of Interest for October 20, 2016

The Court of Appeals’ October Session concludes on October 20, 2016. Only three cases are on the argument schedule (the Court’s case summaries can be found here).  One is particularly interesting:

No. 185           Kimmel v State of New York

May a prevailing plaintiff in a suit against the State and its agencies under the Human Rights Law recover attorneys’ fees under the Equal Access to Justice Act (EAJA), CPLR Article 86? That is the question of first impression that the Court of Appeals must decide in Kimmel.  In Kimmel, a former State Trooper brought a gender discrimination, sexual harassment, and retaliation action under the Human Rights Law against the State and the Division of State Police. After 12 years of litigation and a trial, the jury awarded Kimmel $798,000 in compensatory damages.  Kimmel and her former attorney then moved for an award of attorneys’ fees under the EAJA, which provides that “a court shall award to a prevailing party … 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]).

Supreme Court denied the motion for fees, holding that the EAJA does not provide for an award of fees for the tortious acts of the State and its employees, but is limited to where the party seeks judicial review of a State administrative action. The Appellate Division, Fourth Department reversed, with two Justices dissenting.  The majority held that the plain language of the EAJA applied to all civil actions against the State, including Kimmel’s Human Rights Law action.  The majority held that no basis existed to distinguish a Human Rights Law discrimination or retaliation action from CPLR Article 78 proceedings or declaratory judgment actions against the State where the EAJA provides for an award of attorneys’ fees.  The dissenters asserted that the legislative history underlying the EAJA reveals that the attorneys’ fees award was intended to be available for review of State administrative action, not for other types of civil actions against the State.

A copy of the Appellate Division, Fourth Department’s decision below can be found here.