This opinion is uncorrected and subject to revision before

publication in the New York Reports.

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No. 36 

Betty L. Kimmel,

 Respondent,

 v.

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.

DiFIORE, Chief Judge:

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

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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 doctorordered work leave.

Throughout the course of plaintiff's 14-year tenure,

she made repeated complaints. In 1982, plaintiff made a sexual

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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 AD2d 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 AD2d 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

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$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 counsel1 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 AD3d 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 AD3d 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]).

1 Plaintiff's former counsel intervened in this action and

will hereinafter be referred to as intervenor.

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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.

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 NY3d

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

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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 NY3d 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

NY2d 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

2 Although they do not limit the phrase "any civil action,"

other provisions in the EAJA place limitations on fee awards. 

CPLR 8601 (a) provides that fees will not be awarded when the

State's position is "substantially justified" or when "special

circumstances make an award unjust" (CPLR 8601 [a]). Individual

plaintiffs and petitioners must have a net worth of $50,000 or

less at the time the case was commenced, excluding the value of

their principal residences, in order to be eligible for fees (see

CPLR 8602 [d]). The lower courts determined that plaintiff met

all of these strict requirements, and their applicability is not

before us in this appeal.

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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 BroadalbinPerth Cent. School Dist., 91 NY2d 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

3 The dissent argues that the statutory exclusion for "an

action brought in the court of claims" is superfluous in any

event because the Court of Claims Act already bars attorneys'

fees (see dissenting op at 6-7). But the EAJA's Court of Claims

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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 NY2d 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 NY2d 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 NY2d 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

exclusion was necessary and avoided any suggestion that EAJA's

attorney's fees provision conflicted with or abrogated the Court

of Claims bar.

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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

NY2d 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

4 Notably, the State defendants concede elsewhere that

"judicial review" is often given a broad definition. For

example, they cite Black's Law Dictionary's definition, which

includes "[a] court's power to review the actions of other

branches . . . of government" (Black's Law Dictionary 924 [10th

ed 2014]). Our decision in Matter of Pan Am. World Airways v New

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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

York State Human Rights Appeal Bd. (61 NY2d 542, 548 [1984]),

likewise uses the term "judicial review" to mean review by a

court without reference to an agency decision -- indeed, we

pointed out in that case that the Human Rights Law expressly

permits either administrative review through the Human Rights

Division or, as an alternative, "judicial review."

5 As the parties agree, and contrary to the Supreme Court's

holding, claims brought under the Human Rights Law are not tort

claims (Margerum v City of Buffalo, 24 NY3d 721, 730 [2015]

[concluding no notice of claim requirement applies because

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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 F2d 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

"(h)uman rights claims are not tort actions under (General

Municipal Law §) 50-e and are not personal injury, wrongful

death, or damage to personal property claims under (General

Municipal Law §) 50-i"]).

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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 NY3d 247, 251 [2015]; see also

Matter of Scanlan v Buffalo Pub. School Sys., 90 NY2d 662, 676

[1997]; Post v 120 E. End Ave. Corp., 62 NY2d 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'"

6 Additionally, since the federal EAJA's passage, other

federal courts have consistently concluded that it is a remedial

statute (see e.g. Phillips v Shinseki, 581 F3d 1358, 1367 [Fed

Cir 2009], citing Scarborough v Principi, 541 US 401, 406-407

[2004]).

7 Fee-shifting statutes that provide fees to the prevailing

party in derogation of the common-law rule are generally

interpreted narrowly (see e.g. Vucetovic v Epsom Downs, Inc., 10

NY3d 517, 521 [2008]). However, when interpreting a fee-shifting

statute that is remedial in nature, we have held that the statute

may nonetheless be interpreted broadly (see Graham Ct. Owners

Corp. v Taylor, 24 NY3d 742, 750-751 [2015]).

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(Brown, 25 NY3d at 251, quoting People v Sosa, 18 NY3d 436, 440-

441 [2012]). As noted, there are only two clear exclusions from

the term "any civil action" and the State defendants' proposed

limitation for cases seeking monetary damages is not one of them.

III.

 The legislative history from 1989, when the EAJA

became law, demonstrates that the EAJA was "targeted at those

businesses and individuals . . . who often lack the resources

necessary to vindicate their civil and legal rights" (Letter from

New York Lawyers for the Public Interest, Inc., Bill Jacket, L

1989, ch 770 at 46). Although the plain language of the statute

provides the best evidence of legislative intent, "the

legislative history of an enactment may also be relevant and is

not to be ignored, even if words be clear [because the] primary

goal of the court in interpreting a statute is to determine and

implement the Legislature's intent" (Matter of Tompkins County

Support Collection Unit v Chamberlin, 99 NY2d 328, 335 [2003]

[internal quotation marks and citations omitted]).

Here, the legislative history also leads to the

conclusion that "any civil action" means what it says, subject to

the express exclusions in the statute. While article 78

proceedings were undoubtedly a focus of interest in the bill, and

some portions of the legislative history reflect this, the

legislative history also supports our conclusion that the statute

permits an award of attorneys' fees and costs to the plaintiff in

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this case.

Notably, the 1989 bill that subsequently was codified

as CPLR article 86 differed from earlier versions of the statute

-- all vetoed by the governor -- in important ways. Most of the

earlier versions applied only to small businesses and not

individuals; one excluded claims brought by "state employees";

one defined "judicial review" as "an appeal of agency action";

and, as the governor's vetoes of these earlier bills indicated,

all failed to establish a policy of providing New York's poor

with access to the courts (see e.g. Governor's Veto Message, No.

71, 1983 NY Legis Ann at 99). The legislature made very

different choices when it drafted and passed the EAJA as we now

know it: individual plaintiffs and petitioners are covered with

no exclusion for state employees; there is no limiting definition

of "judicial review"; and the clear intent is to advance

individuals' "civil rights" (the very words used in supporting

materials in the bill jacket) as well as other rights. We

conclude that the earlier bills shed light on the critical

differences that make the EAJA that did pass a true vehicle for

improved access to justice for those who would otherwise be

unable to afford a lengthy legal battle with a state actor.

Even the legislative history cited by the dissent

supports this case's eligibility for fees under the EAJA. For

example, in Governor Mario Cuomo's memorandum approving the bill,

the governor commented that the statute authorized a fee award to

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"certain plaintiffs or petitioners who prevail in litigation

reviewing State agency action or inaction when the State's

position in the case is not substantially justified" and that its

purpose was to "improv[e] access to justice for individuals and

businesses who may not have the resources to sustain a long legal

battle" against the State (Governor's Mem approving L 1989, ch

770, 1989 Legis Ann at 336). That, of course, was the situation

here. The State defendants defended the agency's inaction in

failing to address rampant sex discrimination in its ranks on the

ground that the agency's official acts were within its

discretion. At the same time, their dilatory and obstructive

conduct in the litigation seemed designed to wear down plaintiff

and exhaust her resources.

The dissent concludes that "[w]ithin all the

legislative history over the course of the decade in which the

EAJA was contemplated and developed, there is no discussion of a

drastic change in the statute's purpose or applicability from its

earlier incarnations" (dissenting op at 13). This is incorrect. 

The Report of the Association of the Bar of the City of New York

described the change from earlier versions in some detail:

"Bills denominated 'Equal Access to Justice'

Acts have been passed by both houses of the

state legislature during the past several

years, only to be vetoed by the Governor. 

Those bills, however, were not truly Equal

Access to Justice Acts because, although they

assisted small businesses regulated by state

agencies, they failed to confer any benefits

on low income individuals seeking to enforce

civil and legal rights through the courts. 

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As Governor Cuomo's 1983 veto message stated,

'This bill does not establish a policy of

enabling the poor to gain access to the

judicial forum.' The EAJA in its current

form would be the first bill to reach the

Governor's desk that directly promotes equal

access to justice by significantly lowering

economic barriers that currently prevent many

individuals from contesting irrational an[d]

illegal State government action"

(Assn. of the Bar of City of New York, Report on Legislation,

Bill Jacket, L 1989, ch 770 at 57).

 Additionally, other proponents of the EAJA, such as

the State Bar Association, praised the 1989 bill as "designed to

accomplish precisely what its title suggests -- enhanced access

to the courts for those who historically have been unable to make

use of the judicial process simply because they lacked financial

resources" (Letter from New York State Bar Assn., Bill Jacket, L

1989, ch 770 at 48). These proponents further heralded its

passage as timely given the then-recent findings of the Marrero

Committee (see id. at 49), which was constituted "to study the

extent of the unmet need for civil legal services among the poor

in New York State and to recommend ways to improve the

availability of those services" (Victor Marrero, Committee to

Improve the Availability of Legal Services -- Final Report to the

Chief Judge of the State of New York, 19 Hofstra L Rev 755, 756

[Summer 1991]). The Committee's Preliminary Report, which was

issued while the EAJA was under consideration, concluded that

"the critical problem of underrepresentation of the poor . . . 

'jeopardize[d] both the welfare of poor persons and the

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legitimacy of the legal system itself'" (Letter from New York

State Bar Assn., Bill Jacket, L 1989, ch 770 at 49, quoting

Marrero Committee Preliminary Report).

Moreover, as noted in the governor's signing statement,

the 1989 EAJA differed from EAJA bills he had vetoed in the past

because, in addition to opening up the EAJA to individuals to

vindicate their civil and other legal rights, it had "necessary

safeguards" absent from prior versions of the bill (Governor's

Mem approving L 1989, ch 770 at 20). Specifically, the governor

noted the "appropriate limits" on the classes of individuals and

entities that can seek EAJA awards, including the $50,000 net

worth requirement (id.).8 The governor also observed that the

1989 version limited fees and costs to those cases where the

State's position was not "'substantially justified'" and to an

amount that was deemed "'reasonable'" (id. at 20). Thus, our

interpretation does not "open the floodgates" since these various

restrictions keep them firmly shut to all but the neediest and

most deserving plaintiffs and petitioners. 

In discussing these restrictive "necessary safeguards"

placed on EAJA awards, the governor referred to the federal EAJA

and cited the differences between the federal statute and New

8 New York's $50,000 requirement was the most restrictive of

any of the other 29 states that approved state EAJAs around this

time, many of which placed no restrictions on an individual's

wealth (see Susan M. Olson, How Much Access to Justice from State

"Equal Access to Justice Acts"?, 71 Chi-Kent L Rev 547, 561-562

[1995]). 

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York's EAJA. The federal EAJA undeniably applies to all civil

actions, except those where costs and fees are already provided

for by another statute and tort actions. If the governor

understood the EAJA to apply to a subset of civil actions that

was more limited than the federal statute's coverage, he surely

would have noted it in discussing these important restrictions,

given the emphasis placed on safeguards that would lessen the

financial burden on the State. The governor's failure to mention

any such limitation in the 1989 bill provides further support for

the conclusion that there was no such limitation.

Several other proponents and opponents of the bill

observed that the EAJA was modeled after the federal EAJA (Bill

Jacket, L 1989, ch 770 at 11, 23, 25, 27, 39). Yet not one

stated that the EAJA excluded virtually all civil actions -- as

the State argues it does. To the contrary, several of the

submissions in the Bill Jacket describe the EAJA as applicable to

all civil actions brought against the State with the exception of

those commenced in the Court of Claims or tort actions,

consistent with the federal EAJA (see Bill Jacket, L 1989, ch 770

at 49, 53). Similarly, a report from the Association of the Bar

of the City of New York stated that the EAJA applied to

"prevailing parties in civil proceedings, with the exception of

tort actions, against the State" (id. at 55).

Finally, attorneys' fees and costs are now specifically

provided for under the Human Rights Law in cases of housing

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discrimination and in cases of sex discrimination in credit or

employment (L 2015, ch 364, § 1). The 2015 amendment reflects

the legislature's acknowledgment that fee-shifting provisions are

appropriate in the area of Human Rights Law violations. The

amendment also means that attorneys' fees in certain civil

actions and proceedings brought under the Human Rights Law

alleging sex discrimination will no longer be subject to the

EAJA's limiting requirements but to the separate requirements set

forth in the Human Rights Law itself. Contrary to the dissent's

position, the enactment of the 2015 amendment does not mean that

litigants prior to that time had no recourse to EAJA; rather, the

amendment allows for attorneys' fees without the limiting

requirements that EAJA imposes.

IV.

In sum, the plain language, legislative history and

remedial nature of the EAJA together demonstrate that this civil

action is eligible for an award of attorneys' fees. We hold that

for cases commenced before the effective date of the 2015

amendment to the Human Rights Law, 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. The plain

language of the statute, which is supported by the legislative

history, compels the conclusion that "any civil action"

encompasses cases brought under the Human Rights Law. It is not

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for this Court to engraft limitations onto the plain language of

the statute. Indeed, "[t]his Court should be very cautious in

interpreting statutes based on what it views as a better choice

of words when confronted with an explicit choice made by the

Legislature" (Matter of Orens v Novello, 99 NY2d 180, 190

[2002]). We agree with the Appellate Division that we may "not

legislate under the guise of interpretation and, if application

of the EAJA to this action is an unintended result of the plain

language of the statute, then that is a consequence best left to

the Legislature to evaluate and, if necessary, resolve" (76 AD3d

at 196 [internal citations and quotations omitted]).

Accordingly, the judgment appealed from, and order of

the Appellate Division insofar as brought up for review, should

be affirmed, with costs.

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Kimmel v State of New York

No. 36 

WILSON, J. (concurring in the result):

I believe the CPLR 8602 (a) language defining "action"

as "any civil action or proceeding brought to seek judicial

review of an action of the state" is facially ambiguous (although

slightly suggestive of review of administrative decision-making).

However, I agree with the dissent's conclusion that the

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legislative history, coupled with the explicit exclusion of

actions in the Court of Claims, supports the proposition that the

Equal Access to Justice Act was intended to address article 78

proceedings and other actions seeking injunctive or other

equitable relief rather than monetary damages. Nevertheless,

because of the peculiar facts of this case and the admissions

made by the State at oral argument, I agree in the result reached

by the plurality for the following reasons. 

Ms. Kimmel filed her lawsuit in 1995 after suffering

widespread gender discrimination and sexual harassment within the

New York State Police, where she had been employed as a State

Trooper for fourteen years. She sought not merely damages for

herself, but also declaratory and injunctive relief to benefit

all women on the force who suffered such discrimination. As

chronicled in numerous decisions of the lower courts, and

reiterated in the plurality and dissent, the State Police shirked

its disclosure obligations and endlessly stonewalled Ms. Kimmel. 

After twelve years of the State's obstructionist and delaying

tactics, and as a sanction for the gross misconduct of the State

in this litigation, Supreme Court struck the State's answers and

entered judgment in Ms. Kimmel's favor on the claims for money

damages. At that point, she had still been utterly frustrated in

her efforts to obtain discovery from the State to which she was

entitled and which was relevant to all her claims, whether for

damages or injunctive relief. Prior to that point, Ms. Kimmel's

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lawsuit could fairly be characterized as one seeking both money

damages for herself and injunctive relief for herself and others;

subsequent to it, the proceedings have largely been to pursue an

award of attorney's fees, less the cost of the trial on damages

after the court struck the State's answers.

At oral argument, counsel for the State repeatedly

responded that a plaintiff in Supreme Court proceeding not under

article 78 but in a lawsuit brought under the Human Rights Act

against a State agency and "looking for injunctive relief . . .

is seeking judicial review" and "article 86 would apply in such a

situation," even if that situation included a plea for both

injunctive relief and money damages. Thus, the State has

conceded, if only for the purposes of this case, the Equal Access

to Justice Act entitles Ms. Kimmel to recover attorneys' fees for

any portion of her lawsuit related to her claim for injunctive

relief, including her efforts to reform the discriminatory

practices of the State Police to the benefit of other women.

That concession operates in two ways. First, it is an

admission by the State that, at least in this case, a civil Human

Rights Law action filed in Supreme Court can meet the statutory

definition of "judicial review of an action of the state."

Because the record before the court in this case would be the

same regardless of the nature of the prayer for relief, the

State's concession is wholly incompatible with its contention

that "judicial review" is limited to article 78 suits challenging

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- 4 - No. 36

administrative decision-making and can never apply to a suit

under the Human Rights Law.

Second, counsel for the State's concession means that

Ms. Kimmel, who sued a State agency under the Human Rights Law

for both money damages for herself and injunctive relief

benefitting herself and others, is entitled to recover some

amount of attorney's fees. Although the State advocated

apportioning the fees between those allocable to her claim for

money damages and those allocable to her claims for injunctive

and declaratory relief, those portions of the suit are, in this

case, indistinguishable as a result of the State's egregious

discovery abuses and the attendant unusual procedural history.

Thus, the result of the plurality's opinion is the same result I

would reach, albeit for a different reason.

Therefore, I would affirm.

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Kimmel v State of New York

No. 36 

GARCIA, J.(dissenting):

I agree with the plurality that the conduct of the

defendants in this case was egregious. That plaintiff received

truly reprehensible treatment, however, does not entitle her

attorneys to recoup fees under a statute that does not, and has

never been used to, provide for such an award in this type of

case. 

I.

Plaintiff, one of the first women to become a state

trooper in New York, experienced years of discrimination and

harassment during her employment by defendants State of New York

and the New York State Division of State Police. This long

period of mistreatment included vandalism of plaintiff's

property, the posting of offensive cartoons depicting plaintiff

performing sexual acts, and a physical attack by a co-worker that

placed her in the emergency room. After attempts to seek redress

of these wrongs internally, plaintiff filed suit in 1995 alleging

sex discrimination, sexual harassment, retaliation, and hostile

work environment and seeking $15,000,000 in damages as well as

back pay, front pay, benefits, injunctive relief, and

reinstatement. Before the suit was filed, plaintiff obtained two

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- 2 - No. 36

attorneys, one of whom (the intervenor) had extensive experience

in discrimination law cases. Both attorneys signed a contingency

fee contract with plaintiff, agreeing to share one-third of any

award received. 

Plaintiff's complaint attached numerous exhibits that

documented the harassment she experienced. In response to

plaintiff's complaint, the State defendants denied wrongdoing. 

After "obstructionist" and dilatory conduct on the part of the

State, a court later found that defendants "had repeatedly

disobeyed discovery orders of Supreme Court and [the Appellate

Division]" and so struck defendants' answer (286 AD2d 881, 882

[4th Dept 2001]; 261 AD2d 843, 845 [4th Dept 1999]). Judgment

was entered in plaintiff's favor on the issue of liability.1 

In 2005, after a dispute arose, plaintiff fired the

intervenor.2 After the intervenor refused to provide plaintiff

with the case file, plaintiff and her remaining attorney moved to

obtain the file and the intervenor cross-moved for a lien. A

judge ordered the intervenor to turn the case file over to

1 In 2002, the parties entered into a stipulation pursuant

to which defendants agreed to pay more than $76,000 of

plaintiff's attorneys' fees to resolve a sanctions motion.

2 The intervenor's high fee requests led in part to a

breakdown in the attorney-client relationship. Plaintiff

attested that "[f]rom May 2004 to March 2005 [the intervenor's]

bill increased by 50% . . . I cannot pay this bill." She also

stated that the intervenor "would continually file appeals,

motions, etc. without ever conferring" with plaintiff and that

plaintiff believed some of these actions "were unnecessary." 

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plaintiff's remaining attorney and placed a charging lien on any

proceeds recovered in the pending suit. At that point, the

intervenor's bill for her services was approximately $490,000. 

On the eve of trial in 2006, in a letter responding to

a general question about fees posed by the trial judge "[a] few

months ago," plaintiff's remaining attorney raised for the first

time the theory that the case might qualify for a fee award under

the EAJA. In the letter, that attorney inquired about

"defendants' position concerning settlement . . . in light of

this information [that plaintiff may be entitled to fees]" and

stated that any "[s]erious settlement talks really means getting

beyond a 6 figure amount[]." The parties did not reach a

settlement. After a trial on damages in 2006, a jury awarded

plaintiff approximately $800,000 total for lost past earnings,

lost past retirement earnings, lost future retirement benefits,

and past pain and suffering. 

In 2008, plaintiff, her remaining attorney, and the

intervenor moved for attorneys' fees and expenses under the EAJA. 

The intervenor asked for more than $1,000,000 in attorneys' fees,

including "enhanced fees" of $180,663 for what she described as

"'bad faith' and frivolous and dilatory conduct of the State of

New York and the New York State Police in their defense of

plaintiffs' claims."3 Supreme Court denied the motion, finding

3 Legislators and the Governor were particularly concerned

about attorneys seeking enhanced fees when considering passage of

the EAJA (see Letter from Sponsor, Bill Jacket, L 1989, ch 770,

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that the EAJA did not apply to plaintiff's claim for compensatory

damages. A divided Appellate Division reversed, holding that

plaintiff's claim was eligible for attorneys' fees under the

EAJA. This holding was based on the Appellate Division

majority's determination that the plain meaning of the EAJA

compelled a conclusion that it applied to this case; that the

statute's Court of Claims exclusion would be superfluous if the

EAJA was limited to article 78 proceedings and declaratory

judgment actions because those actions cannot be brought in the

Court of Claims anyway; and that the legislative history

supported its interpretation. Two justices dissented, noting

conversely that the statute's plain meaning and legislative

history demonstrated that the EAJA was inapplicable to

plaintiff's suit. 

II. 

The EAJA, which also bears the title "Counsel Fees and

Expenses in Certain Actions Against the State," 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]). Section

8602 provides corresponding definitions for terms in the statute

and defines "action" as "any civil action or proceeding brought

at 8). 

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to seek judicial review of an action of the state as defined by

subdivision [g] of this section, including an appellate

proceeding, but does not include an action brought in the court

of claims" (CPLR 8602 [a]). 

The crux of this dispute concerns the clause "any civil

action or proceeding brought to seek judicial review" and whether

that includes suits for compensatory damages. Essentially, the

plurality reads the statute to say "any civil action or any

proceeding brought to seek judicial review" (see plurality op at

6-7). Yet the definition of "civil action" enacted by the

legislature limits the EAJA's applicability to either civil

actions brought to seek judicial review of an action of the

state, or proceedings brought to seek judicial review of an

action of the state. This limitation accordingly cabins the

applicability of the EAJA to actions seeking to challenge an

action taken by a state agency or one of its officials acting in

his or her official capacity, including article 78 proceedings,

declaratory judgment actions involving state agency rulings, and

actions seeking injunctive relief from state agency rulings. 

This interpretation is consistent with the other

provisions of article 86. The statute provides in section 8601

(a) that "[w]hether the position of the state was substantially

justified shall be determined solely on the basis of the record

before the agency or official whose act, acts, or failure to act

gave rise to the civil action." But there is no such "record

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before the agency or official" in plenary actions seeking

principally compensatory damages like the instant action. 

Consistent with this provision, "position of the state" is

defined as "the act, acts or failure to act from which judicial

review is sought" (see CPLR 8602 [e]). Likewise, section 8602

defines "fees and other expenses" as those "incurred in

connection with an administrative proceeding and judicial

action," further demonstrating that the statute applies only to

suits challenging state administrative action.

The plurality supports its argument for a broad reading

of the EAJA with an assertion that under a narrow interpretation,

the statute's provision carving out "an action brought in the

court of claims" is superfluous (plurality op at 7-9). The

Appellate Division majority also noted that, under the

interpretation outlined above, "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" (76 AD3d at 406). But this provision is

"unnecessary" under either interpretation. The Court of Claims

Act specifically bars attorneys' fees (see Court of Claims Act §

27). Even under the plurality's interpretation of the EAJA,

therefore, the Court of Claims "carve out" is superfluous. 

Accordingly, in light of the language used in the remainder of

the statute, as well as the legislative history supporting a

narrow interpretation, this language must be attributed to a

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- 7 - No. 36

redundancy on the part of the legislature and not as an

indication that the statute should be read broadly. "Redundancy

is hardly unusual in statutes addressing costs," and "the canon

against surplusage is not an absolute rule" (Marx v General

Revenue Corp., 133 S Ct 1166 [2013]).4 The carve out for the

Court of Claims merely reiterates that compensatory damage claims

-- required in nearly every case to be brought in the Court of

Claims -- do not qualify for attorney's fees under the EAJA. 

The fact that Human Rights Law cases may be brought in

Supreme Court does not affect this interpretation. Before we

decided Koerner v State of New York (62 NY2d 442 [1984]), this

case would have originated in the Court of Claims, because money

damages are not otherwise available against the State in Supreme

Court; Koerner created a narrow exception, pursuant to which

Human Rights Law cases may be brought in either Supreme Court or

the Court of Claims. While the legislature is "presumed to have

known of our decision" in Koerner (plurality op at 8), the

general impression at the time, which remains true in all other

contexts outside the HRL, was that the State could not be sued

for monetary damages in Supreme Court. Moreover, the EAJA, as a

fee-shifting statute in derogation of the common law, must be

strictly construed (see Peck v New York State Div. of Hous. &

4 Nor does our interpretation violate the principle of

"expressio unius est exclusio alterius" (plurality op at 9). A

narrow reading of the EAJA gives the limitation on "any civil

action" its intended meaning based on the statute's language.

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- 8 - No. 36

Community Renewal, 188 AD2d 327, 327-328 [1st Dept 1992]).5 The

statute's plain language, with its express limitation on what

constitutes a "civil action" eligible for fees, otherwise

establishes that the statute is not applicable to employment

discrimination actions for compensatory damages.6

III.

Despite the Appellate Division majority's belief that

"there is no need to resort to legislative history to discern the

intent of the Legislature" (76 AD3d at 194), it is appropriate to

consider legislative history even where a statute's plain meaning

is clear (see Riley v County of Broome, 95 NY2d 455, 463-64

[2000]). Such review is particularly appropriate where, as here,

multiple judges have expressed diametrically opposed views of

that "plain meaning." 

The legislative history unambiguously supports an

interpretation of the statute as limited to judicial review of

agency action. The legislature began attempting to pass some

statutory mechanism for providing attorneys' fees to prevailing

5 It is true that "limitations should not be read into . . .

remedial statutes 'unless the limitation[s] proposed [are]

clearly expressed'" (plurality op at 17). The definition of

"action" in section 8602 (a) clearly expresses such a limitation. 

6 The concurrence argues that the State conceded at oral

argument that the EAJA entitles plaintiff to recover fees for

that portion of her lawsuit that related to her claim for

injunctive relief (concurring op at 2-3). Any such concession

"is not binding on this Court" (People v Sincerbeaux, 27 NY3d

683, 689 n 3 [2016]). 

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- 9 - No. 36

parties challenging unjust state agency action beginning in 1982. 

The legislature noted the "tremendous power in [the state's]

ability to impose fines, suspend or revoke licenses or compel or

restrict the activities of regulated entities" and that suits

contesting these actions are extremely costly (Assembly Bill

11940-A [March 1982]). There is no dispute that this version of

the bill only applied to review of state agency action. The bill

was vetoed in large part because of cost concerns and breadth, as

were the similar 1983 and 1984 draft bills. 

The 1986 bill, drafted more narrowly than the previous

bills, continued to address only state agency action, and again

was vetoed, at least in part, because of cost concerns. While

these bills over time became increasingly more narrow to address

concerns over breadth and cost, the overall purpose remained the

same -- reimbursement for costs incurred in challenging state

agency action. Although the plurality finds the legislative

history of the earlier draft bills indicative of support for a

broad interpretation of the EAJA in light of the differences

among the previous bills and the final version (plurality op at

20-22), there is no legislative history suggesting a broadening

of the bill's applicability in terms of the type of "action" for

which fees could be awarded.7 

7 The Report of the Association of the Bar of the City of

New York does not suggest a change in the statute's purpose (see

plurality op at 16), but instead discusses the value that the

final bill adds by "significantly lowering economic barriers that

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- 10 - No. 36

Moreover, the legislative history surrounding the

passage of the 1989 bill "compels a conclusion that the

Legislature intended that the EAJA would be utilized to seek

attorneys' fees and expenses in an action that involved judicial

review of an administrative action of the State," as the dissent

below noted (79 AD3d at 201). In Governor Cuomo's memorandum of

approval of the bill, he commented that the statute "authorize[d]

a court to award attorneys' fees to certain plaintiffs or

petitioners who prevail in litigation reviewing State agency

action or inaction when the State's position in the case is not

substantially justified . . . . It is a worthwhile experiment in

improving access to justice for individuals and businesses who

may not have the resources to sustain a long legal battle against

an agency that is acting without justification" (Governor's

Approval Mem, Bill Jacket, L 1989, ch 770, at 20 [emphasis

added]). Likewise the bill's sponsor noted that the bill was

requested in order to "protect such parties from unfair agency

enforcement actions" in light of the "prohibitive cost of

contesting . . . an action taken against them by a State agency"

(Letter from Sponsor, Bill Jacket, L 1989, ch 770, at 6 [emphasis

added]). The "prime Senate sponsor" of the bill acknowledged

currently prevent many individuals from contesting irrational

an[d] illegal State government action" (Assoc. of the Bar of the

City of New York Report, L 1989, ch 770, R 57). This statement

does not evince awareness of an intent to change the types of

cases eligible for fees under the EAJA and indeed speaks to

reigning in problematic agency action. 

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that it was intended to provide attorneys' fees for litigants

"that were successful in challenging unwarranted state actions"

(Letter from Sponsor, Bill Jacket, L 1989, ch 770, at 5). 

Another letter of support speaks to the bill's purpose in

providing "a mechanism for overcoming the economic barriers that

frequently prevent poor persons from contesting erroneous agency

actions" (Letter from New York State Bar Association, Bill

Jacket, L 1989, ch 770 [emphasis added]). In fact, the letter

relied upon by the Appellate Division majority to support their

interpretation stated that "the legislation would provide an

incentive to State agencies to reach more considered

determinations" (Letter from Sponsor, Bill Jacket, L 1989, ch

770, at 54). These statements would be wholly illogical and

inexplicable if plenary actions seeking to recover compensatory

damages were eligible for fee awards under the statute. 

Striking a similar theme, the Budget Report on Bills

submitted to the Governor in opposition to the EAJA stated that

the bill's purpose was to allow legal fees "when . . .

individuals or entities appeal an unjustifiable ruling of a State

agency, board or commission" and that the bill "provides a means

of redress for individuals, small businesses, and not-for-profit

corporations in situations where a State agency, board or

commission is given an unfavorable ruling without good cause"

(Budget Report on Bills, A. 3313 [1989]). The arguments in

support of the bill recounted in this budget report noted that

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the bill "would encourage individuals, small businesses and notfor-profit corporations to seek redress when they feel the State

has made a ruling that unjustly affects them" (id.). This

language reflects an understanding of the statute as limited to

actions challenging a state agency ruling or determination. 

While plaintiff argues that the budget report is of no use in

determining the statute's goal because it was not before the

Assembly or Senate when the bill was passed, the budget report

was presented to the Governor before he approved the passage of

the bill. This interpretation of the budget report is also

consistent with the letter sent by the bill's sponsor to the

Governor after the budget report was issued, noting that the

"fiscal impact" of the bill would be minimal "if State agencies

are using their regulatory powers responsibly and judiciously"

(Letter from Robin Schimminger to Governor Cuomo re A. 3313-B,

dated September 21, 1989). As noted above, the Governor in

vetoing prior iterations of this legislation was particularly

concerned with costs and would certainly have been misled by this

budget analysis.

The legislative history demonstrates both the

legislature's and Governor's continued concern with the bill's

cost. This concern is borne out by the statute's final product;

in particular, section 8604 requires annual reporting describing

the "number, nature and amount of each award in the previous

fiscal year." The bill's expected annual cost was less than

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$500,000 annually, and its major purpose was to help those "whose

rights have been violated but whose potential damage awards may

not have been enough to induce lawyers to fight City Hall"

(Wittlinger v Wing, 99 NY2d 425, 431 [2003]). It is difficult to

align this concern with plaintiff's $15 million demand for

compensatory damages. Indeed two lawyers, without any apparent

expectation of fee recovery from the state, signed contingency

fee agreements with plaintiff. 

Within all the legislative history over the course of

the decade in which the EAJA was contemplated and developed,

there is no discussion of a drastic change in the statute's

purpose or applicability from its earlier incarnations. All

involved in the 1989 bill's passage assumed it was of limited

applicability to judicial review of agency actions and not one

statement in the record contradicts that conclusion. 

Plaintiff also argues that the federal EAJA supports

her interpretation because CPLR 8600 states that the EAJA was

intended "to create a mechanism comparable to that in the federal

Equal Access to Justice Act." This argument fails for several

reasons. First, despite the plurality's suggestion that the

federal EAJA contains a similar definition of civil action, the

federal EAJA in fact uses different language (plurality op at 10-

11). Under the federal statute, the phrase "any civil action" is

plainly not limited to those seeking judicial review, as the

statute identifies "any civil action" as "including," among other

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things, "proceedings for judicial review of agency action" (28

USC § 2412 [d] [1] [A]), necessarily signaling that the phrase

"any civil action" is a broad and inclusive term. This inclusive

language reflects the broader applicability of that statute, in

comparison with the state version, which limits an award of fees

only to "any civil action or proceeding brought to seek judicial

review" (CPLR 8602 [a]). We have recognized that "although the

State EAJA purports to be modeled after the Federal act, the

Legislature departed from the Federal model in certain

significant respects" and, thus, the use of different language in

the state EAJA "evinces an intent" to have a stricter or more

narrow statute than the federal counterpart (Matter of New York

State Clinical Lab. Assn. v Kaladjian, 85 NY2d 346, 353 [1995]). 

Here, the legislature's choice to depart from the language of the

federal statute reflects a conscious decision to limit the

application of the state EAJA.8 Moreover, the federal EAJA would

not apply to plaintiff's claim here, as Title VII includes an

attorneys' fees provision (42 USC § 2000e-5 [k]). 

8 The fact that this language was not in the federal EAJA

when it was first enacted demonstrates how broader language is

necessary to expand the scope of the EAJA. Moreover, the federal

EAJA is broader than our state version in another manner -- it

allows for recovery by a prevailing party whether the action is

brought "by or against the United States or any agency" (28 USC §

2412 [a] [1]), while our EAJA is limited to only actions "brought

against the state" (CPLR 8601 [a]). The plurality's decision to

read the State EAJA as "entirely consistent with its federal

counterpart" (plurality op at 11) is not supported by the

language of the statute or our precedent. 

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The legislature's recent amendment to the Human Rights

Law, awarding attorneys' fees to prevailing parties in certain

discrimination suits, echoes this federal scheme and further

undermines plaintiff's interpretation. The change reflects a

legislative belief that, prior to the amendment, fees were not

recoverable in gender-based discrimination actions. In fact, the

sponsors' memorandum for the amendment is devoid of reference to

the EAJA and refers to the fact that "because [the HRL] does not

provide for an award of attorneys fees, many plaintiffs are

unable to pursue the vindication of their rights" (Sponsors' Mem,

L 2015, ch 364). The legislature's understanding at the time of

the HRL amendments that individuals in similar situations to

plaintiff were not able to recover attorneys' fees for Human

Rights Law claims further supports a narrow interpretation of the

statute's limitations. Instead, the plurality's opinion opens the

door to awards of attorneys' fees in numerous other actions,

exclusively against the State, for compensatory damages not

contemplated by the holding herein and not subject to fees under

the revised provisions of the Human Rights Law. 

IV.

The meaning of article 86 has been plain to courts in

this State for the past 28 years. New York courts have applied

article 86 only in the context of article 78 proceedings,

declaratory judgment actions, and actions for injunctive relief. 

In more than 70 published cases contemplating article 86, courts

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have considered it exclusively in the context of actions seeking

judicial review of agency administrative actions. For example,

Supreme Court, Erie County granted attorneys' fees to a

petitioner in an article 78 proceeding seeking to annul a

determination of an administrative law judge of the State Office

of Children and Family Service sustaining a maltreatment report

against petitioner (Wright v New York State Office of Children &

Family Servs., 2003 WL 21665633 [Sup Ct Erie County 2003]). 

Likewise, the Second Department addressed whether attorneys' fees

were owed to a petitioner in an article 78 proceeding challenging

the termination of petitioner's personal care benefits by the

Westchester County Department of Social Services (Barnett v New

York State Dept. of Soc. Servs., 212 AD2d 696 [2d Dept 2012]). 

Similarly, in annual reports issued pursuant to section 8604 from

2004 through 2014, all included awards were granted in cases that

fit this description. For example, in fiscal year 2014, each of

the reported suits awarding attorneys' fees pursuant to the EAJA

involved a challenge to state agency action (see Letter from

Thomas DiNapoli to Governor Cuomo re Article 86 Report [Nov. 13,

2014]). These cases demonstrate the type of litigation to which

the statute is intended to apply, in which a plaintiff with

limited resources and a limited potential monetary recovery would

need assistance "fighting City Hall." During the same period, in

more than 10 annual reports made of fee awards under the EAJA,

there is no record of a single case in which plaintiff attempted

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to obtain attorneys' fees under article 86 in a suit seeking

predominantly compensatory damages -- until now.

V.

The facts of this case are compelling, both as to the

injuries suffered by the plaintiff and the conduct engaged in by

the defendant.9 But in response the plurality establishes a rule

that will have repercussions well beyond awarding fees to this

particular plaintiff's attorneys. The plurality does this in

contradiction to the plain meaning of the statute, the

unequivocal legislative history, and the interpretation given to

the statute by courts and litigants for the past 28 years. Their

motives in doing so are understandable, but the rule created is

nevertheless unsupportable. 

Accordingly, I dissent. 

* * * * * * * * * * * * * * * * *

Judgment appealed from, and order of the Appellate Division

insofar as bought up for review, affirmed, with costs. Opinion

by Chief Judge DiFiore. Judges Rivera and Acosta concur. Judge

Wilson concurs in the result in a separate concurring opinion.

Judge Garcia dissents in an opinion in which Judge Stein concurs.

Judge Fahey took no part.

Decided May 9, 2017 

 

9 Alternative remedies exist to punish and prevent the

dilatory conduct engaged in by the State, including sanctions. 

In fact, as discussed, State defendants in this case were

sanctioned multiple times and settled one such motion by agreeing

to pay more than $76,000 in attorneys' fees. 

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