SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

237 

CA 13-01417 

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

 

BETTY L. KIMMEL, PLAINTIFF-RESPONDENT, 

V MEMORANDUM AND ORDER

STATE OF NEW YORK AND NEW YORK STATE DIVISION 

OF STATE POLICE, DEFENDANTS-APPELLANTS. 

--------------------------------------------- 

EMMELYN LOGAN-BALDWIN, INTERESTED 

PARTY-RESPONDENT. 

 

JAECKLE FLEISCHMANN & MUGEL, LLP, BUFFALO (BRADLEY A. HOPPE OF

COUNSEL), FOR DEFENDANTS-APPELLANTS. 

HARRIET L. ZUNNO, HILTON, FOR PLAINTIFF-RESPONDENT. 

HARRIS BEACH PLLC, PITTSFORD (A. VINCENT BUZARD OF COUNSEL), FOR

INTERESTED PARTY-RESPONDENT. 

 

Appeal from an order of the Supreme Court, Monroe County (Evelyn

Frazee, J.), entered June 5, 2013. The order granted the applications

of plaintiff and former counsel for plaintiff for attorneys’ fees and

expenses. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed with costs, plaintiff and Emmelyn Logan-Baldwin

are awarded attorneys’ fees and disbursements on appeal and the matter

is remitted to Supreme Court, Monroe County, for further proceedings

in accordance with the following 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 AD3d 188). 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 (see CPLR 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
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CA 13-01417 

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

(see 28 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” that plaintiff’s net worth at the time she commenced the

action was a negative figure. We reject defendants’ contention that

federal authority requires plaintiff to provide an integrated balance

sheet with an affidavit from a CPA that the review complies with

generally accepted accounting principles (GAAP) and that, here, the

CPA’s report and affidavit should be rejected because his report does

not comply with the GAAP. Indeed, the Fourth Circuit Court of Appeals

recognized that the federal EAJA does not “give instructions on how to

calculate an applicant’s net worth” (Broaddus v United States Army

Corps of Engrs., 380 F3d 162, 166 [2004]). The Broaddus Court

concluded that the affidavit from plaintiff’s accountant and two

appraisals of the property at issue was “sufficient documentation to

allow the district court to determine [plaintiff’s] net worth” (id. at

168). By contrast, the 10th Circuit Court of Appeals concluded that

plaintiff failed to meet its burden of proving its net worth at less

than $2 million with only an “unverified and unsworn” letter from its

accountant (Shooting Star Ranch, LLC v United States, 230 F3d 1176,

1178 [2000]).

We conclude that, here, plaintiff’s proof is “more than ample to

demonstrate [her] eligibility for an EAJA award” (Broaddus, 380 F3d at

169). The court properly determined that the bankruptcy petition

reflected plaintiff’s net worth at the time she commenced the action

and properly credited plaintiff’s affidavit and the affidavit of her

accountant, all of which provided the court with sufficient

information to determine plaintiff’s assets and liabilities, and thus

her net worth, at the time the action was commenced (cf. Matter of

Cintron v Calogero, 99 AD3d 456, 457-458, lv denied 22 NY3d 855). 

In their respective respondent’s briefs, plaintiff and LoganBaldwin seek sanctions, fees and costs associated with this appeal. 

Defendants failed to respond to the request in their reply brief. We

conclude that sanctions are not warranted inasmuch as defendants’

appeal does not constitute “frivolous conduct” as defined in 22 NYCRR

130-1.1 (c) (see Amherst Magnetic Imaging Assoc., P.C. v Community

Blue, HMO of Blue Cross of W. N.Y., 286 AD2d 896, 898, lv denied 97

NY2d 612). We nevertheless conclude that plaintiff and Logan-Baldwin

are entitled to attorneys’ fees, costs and disbursements incurred in

defending this appeal because the position of the state on appeal was

not “substantially justified” (CPLR 8601 [a]), i.e., it did not have

“a reasonable basis both in law and fact” (Matter of New York State
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CA 13-01417 

Clinical Lab. Assn. v Kaladjian, 85 NY2d 346, 356 [internal quotation

marks omitted]; cf. Cintron, 99 AD3d at 457). Here, the court’s

determination was supported by the record and applicable law, and

defendants’ appeal addressed only alleged technical deficiencies in

plaintiff’s proof that were rejected by the court. Indeed, “[t]he

EAJA is meant to open the doors of the courthouse to parties, not to

keep parties locked in the courthouse disputing fees well after the

resolution of the underlying case. The EAJA’s requirements must be

interpreted accordingly” (Sosebee v Astrue, 494 F3d 583, 588-589). We

therefore remit the matter to Supreme Court to determine the amount of

reasonable attorneys’ fees and disbursements incurred in defending

this appeal (see Deep v Clinton Cent. Sch. Dist., 48 AD3d 1125, 1127). 

Entered: March 28, 2014 Frances E. Cafarell

Clerk of the Court