Betty L. Kimmel, Respondent,v.State of New York et al., Appellants.--------------------------------Emmelyn Logan-Baldwin, Interested Party-Respondent.BriefN.Y.June 1, 2016To be Argued by: HARRIET L. ZUNNO, ESQ. (Time Requested: 20 Minutes) APL-2014-00108 Appellate Division Docket Nos. CA 09-01445, CA 13-01417 Monroe County Clerk’s Index No. 95-4327 Court of Appeals of the State of New York BETTY KIMMEL, Plaintiff-Respondent, – against – STATE OF NEW YORK and NEW YORK STATE DIVISION OF STATE POLICE, Defendants-Appellants. ____________________________________________ EMMELYN S. LOGAN-BALDWIN, Intervenor-Respondent. BRIEF FOR PLAINTIFF-RESPONDENT HARRIET L. ZUNNO, ESQ. Attorney for Plaintiff-Respondent 35 Heinz Street P.O. Box 624 Hilton, New York 14468 Tel.: (585) 392-6882 Fax: (585) 392-6364 January 21, 2015 i TABLE OF CONTENTS PAGE TABLE OF CASES AND AUTHORITIES…………………………………iii QUESTIONS PRESENTED…………………………………………………vi STATEMENT OF JURISDICTION…………………………………………1 PRELIMINARY STATEMENT……………………………………………..1 NATURE OF THE CASE……………………………………………………3 ARGUMENT………………………………………………………………...7 POINT I ……………………………………………………………………..7 EAJA DOES NOT EXCLUDE ACTIONS BROUGHT UNDER THE NEW YORK STATE HUMAN RIGHTS LAW BY THE PLAIN MEANING OF THE LANGUAGE OF THE EAJA STATUTE Point A:……………………………………………………………….7 Article 86 Does Not Limit The Award Of Counsel Fees And Costs Exclusively In Article 78 Proceedings. Point B:..………...…………………………………………………..13 The Appellants Argue Judicial Review Has A Limited Meaning To Include Only Reviews Under Article 78 Point C:.………...…………………………………………………...14 Case Law Under Article 86 May See That Many Article 78 Proceedings Seek Benefits Under Article 86, But That Is Not A Limiting Restriction On The Use Of Article 86. Point D:.………...…………………………………………….……..16 The Court Of Claims Exclusion Does Not Limit Article 86 To Only Article 78 Proceedings. ii Point E:.………...……………………………………………….….18 Human Rights Law Case Are Not Torts And The Court Of Claims Did Not Have Jurisdiction To Hear Human Rights Law Cases. Point F:.………...……………………………………….………….22 Kimmel Did Not Have Ample Incentive Or Opportunity To Pursue Her Claims Point G:………...……………………………………….………….24 EAJA Does Provide Incentives For State Residents To Seek Redress Of Harms Suffered Because Of Acts Or The Failure To Act By The State Or State Agencies, However, Attorneys Representing The State And Its Agencies Are Well Paid POINT II…….………...…………….…………………………………….25 THE APPELLATE COURT PROPERLY CONCLUDED THAT BECAUSE OF THE PLAIN AND CLEAR LANGUAGE OF THE STATUTE, THE AWARD OF ATTORNEYS’ IS PROPER UNDER ARTICLE 86 AND THAT THERE IS NO NEED TO RESORT TO THE LEGISLATIVE HISTORY TO DISCERN THE INTENT OF THE LEGISLATURE Point A:.…….………...…..……….…………………………….….30 The 1989 Enactment Of EAJA Eliminated Critical Language That Opened EAJA To Any Civil Action. Point B: .………………...………….……………………………….31 While The 1982 Legislative History Quoted By Appellants At Pages 49-53, The Statute Does Not Have Any Restrictive Or Use Limiting Language To Bring A Matter To Address State Action Only By Way Of An Article 78 Proceeding. CONCLUSION….…….………...….……….……………………….……34 iii TABLE OF CASES AND AUTHORITIES CASES PAGE Accord Monsanto v. Electronic Data Sys. Corp., 141 A.D.2d 514, N.Y.S.2d 512 (2d Dep't 1988) …………………………………………………19 Beeachwood Restorative Care Ctr. v. Signor, 5 NY 3d 435 (2005)……………29 Bockes v. Wemple, 115 N.Y. 302 (COA, 1889)……………………………….27 Brodie v. New York City Transit Auth., 1998 U.S. Dist. LEXIS 14129 No. 96 Civ. 6813, 1998 WL 599710……………………………………………20 Capruso v. N.Y. State Police, 300 A.D. 2d 27 (1st Dept 2002)………………..12 City Dept. of Sanitation, No. 91 Civ. 8742 (TPG), 1993 U.S. Dist. LEXIS 12187, 1993 WL 336949, * 2 (S.D.N.Y. Sept. 3, 1993)……………….21 Davis v. New York City Dept. of Mental Health, No. 88 Civ. 8999 (DC), 1994 U.S. Dist. LEXIS 17063, 1994 WL 669494, * 1 (S.D.N.Y. Nov. 29, 1994)……………………………………………………....21 Dimonda v. New York City Police Dep't, 1996 U.S. Dist. LEXIS 5286, No. 94 Civ. 0804, 1996 WL 194325, at *6 (S.D.N.Y. Apr. 22, 1996)………....20 Dortz v. The City of New York, New York City Health and Hosp. Corp., Mt. Sinai Hosp., and Elmhurst Hosp., 904 F. Supp 2d 127 (USDC So Dist NY 1995)……………………………………………………………………….21 Ferrick v State of New York, 198 A.D. 2d 822 4th Dept 1993)……………….12 Hilow v. Rome City School Dist., No. 91 Civ. 567, 1994 U.S. Dist. LEXIS 8953 at *26, 1994 WL 328625, * 8………………………………….....21 In the Matter of Rathscheck, 300 N.Y. 346 (COA, 1950)……………………..27 Koerner v. State of New York, 62 N.Y. 2d 442 (1984)………………………..17 Lane-Weber v. Plainedge Union Free Sch. Dist., 213 A.D. 2d 515 (1995)…………………………………………………………………………..22 iv Larry v. New York City Dep't of Sanitation, 1994 U.S. Dist. LEXIS 4231, No. 92 Civ. 0913, 1994 WL 121816, at *5 (S.D.N.Y. Apr. 7, 1994…………………………………………………………20 Matter of Alfonso v. Fernandez, 167 Misc 2d 793 (1995, Richmond Co.)…….16 Matter of Greer v Wing, 95 NY2d 676, 680 [2001]………………………….28 Matter of Rochester Community Sav. Bank v Board of Assessors of City of Rochester, 248 AD2d 949, 950 [1998], lv denied 92 NY2d 811 [1998]…………………………………………………………………………8 McCluskey v. Cromwell, 11 N.Y. 593…………….………………………….25 Mills v. County of Monroe, 89 A.D.2d 776, 453 N.Y.S.2d 486,(4th Dept.)…21 New Amsterdam Cas. Co. v. Stecker, 3 N.Y. 2d 1, (COA, 1957)……………27 Newell v. The People, (3 Selden, 97)…………………………………………26 Patchogue Scrap Iron and Metal Co., Inc. v. Hollis S. Ingraham, as Commissioner of the Department of Health of the State of New York, 57 Misc 2d 290 (1968 Suffolk Co Sup Ct)………………………12 Pearl v. City of New York, No. 87 Civ. 4932 (CSH), 1991 U.S. Dist. LEXIS 12582, 1991 WL 206315, * 4 (S.D.N.Y. Sept. 27, 1991)……………21 Picciano v. Nassau Co. Civil Service Comm'n, 290 A.D.2d 164, 736 N.Y.S.2d 55 (2d Dep't 2001……………………………………………..19 Polvino v. Island Group Admin., Inc., 264 A.D. 2d 720 (1999)……………...22 Purdy v. The People, 4 Hill, 384………………………………………………26 Schoonmaker v. Hoyt et al., 148 N.Y. 425; 42 N.E. 1059; 1896 N.Y. LEXIS 570, (COA, 1896)………………………………………....27 Scopelliti v. Town of New Castle, 210 A.D. 2d 308 (1994)………………….22 Sussman v. New York City Health & Hosps. Corp., 1997 U.S. Dist. LEXIS 8531, No. 94 Civ. 8461, 1997 WL 334964, at *14 (S.D.N.Y. Jun. 16, 1997)………………………………………………………20 Tompkins v. Hunter, 149 N.Y. 117, 123 (1896)………………………………13 v Treanor v. Metro Transportation Authority and LIRR, 414 F. Supp 2d 297 (USDC So Dist NY 2005)…………………………………………………….19 Walter v. Harris, 20 Wend. 561………………………………………………26 STATUTES & OTHER AUTHORTIES Article 78………………………………………………………...replete throughout Article 86………………………………………………………...replete throughout §8601(a)……………………………………………………………..7, 28, 29 §8602(a) …………………………………………………………….8, 10, 14 §8602(b) …………………………………………………………………...31 §8602(g) ……………………………………………………………….10,12 C.P.L.R.§214(2). …………………………………………………………………19 Black’s Law Dictionary, 16 th Edition 1990 ………………………………………14 Human Rights Law, §290…………………………………….…replete throughout Leiber’s Polit. and Le. Hermeneutics, 87; 2 Ruth. Inst. Ch. 7,§2………………..26 N.Y. Gen. Mun. Law §50-e..……………………………………………………..20 Smith’s Statutes, &c. §478....…………………………………………………….26 Story’s Comm. §392.......…………………………………………………………26 42 USC §1983. ....………………………………………………………………..9 vi QUESTIONS PRESENTED 1. The Appellate Division of the Supreme Court for the Fourth Department decided that the case brought by the plaintiff Betty Kimmel against the State of New York and the New York State Police, under the New York State Human Rights Law was a civil case entitled to the application of CPLR Article 86, commonly referred to as the EAJA, correct? The Appellate Division correctly decided that EAJA was applicable. 2. While the Appellate Division found it was not necessary to consider the legislative history of EAJA to reach its decision, that a review of the legislative history supported the court’s decision reach above. The Appellate Division correctly decided that the legislative history supported its decision in applying EAJA to the Kimmel case. 1 STATEMENT OF JURISDICTION The Plaintiff-Respondent does not disagree with the statement propounded by the Appellant and adopts it as those fully set forth herein. PRELIMINARY STATEMENT This brief is submitted by the Plaintiff-Respondent BETTY KIMMEL in support of the decision made by the Fourth Department Division of the Supreme Court dated June 28, 2010; the decision reversing the lower Court by Justice Evelyn Frazee, Monroe County Supreme Court dated May 18, 2009 which incorrectly held that CPLR Article 86, otherwise known as the New York State Equal Access to Justice Act [EAJA] was not applicable to the Kimmel case, EAJA was limited and applied only to Article 78 proceedings. The Appellate Court correctly decided that the plain language of the statute [EAJA] was clear and unambiguous and was applicable to the Kimmel case that was tried under the state’s Human Rights Law. The rationale was correct when the court’s majority said “The EAJA defines “action” as “any civil action or proceeding brought to seek judicial review of an action of the state as defined in subdivision (g) of CPLR §8602, including an appellate proceeding, but does not include an action brought in the court of claims. (§8602[a]).” The Fourth Department also ruled, that because of the plain reading of the language of the act as being clear and unambiguous at the phrase “any civil action” 2 means just that, any civil action. The only expressly stated restriction prohibited those actions brought in the court of claims. The Court also said, in dicta, that the legislative intent and the legislative history are separate and neither should be confused with the other. The intent of the statute is apparent from the language of the statute, see §8600, and once the language was clear and unambiguous, the legislative history ought not be used to change the intent of the enactment. The Appellate Court further determined that the bill enacted in 1989 had little resemblance to the drafted bills prior to 1989. These others were not germane to the case and issues at hand. The Court further concluded that since the language of the statute was clear and unambiguous, it was not necessary to consult the 1989 legislative history. However, in doing so, the court reached the same conclusion. The appellant’s argue that the use of the phrase “judicial review” in the statute means that EAJA is restricted to review of only Article 78 proceedings. While the older drafted forms of the act may have restricted review of only agency decisions and rulings, the 1989 did not contain that language and had the legislature intended for the statute to be restricted and applied to those proceedings brought under Article 78, the legislature was quite capable of expressly including such a restriction. It did not. 3 While the statute’s intent was to provide a fee-shifting scheme to reward low-income persons who could not pay for attorneys to redress wrongs and harms because of state action, it said individuals whose net worth was $50,000 or less would qualify for seeking an award of fees and costs. [Other provisions of the act would also have to be satisfied]. If the legislature wanted to limit the amount of attorneys’ fees and costs that could be awarded, it very well could have written such restrictions into the act. It did not. The Appellant’s require a twisting and a confusion in understanding the application of the statute by having the legislative history, from the very earliest point in time, 1982, to drive the statute’s construction and use. It disregards the 1989 history and the 1989 language the use of the phrase by the legislature making EAJA apply to any civil action. The Appellants argue any civil action means and is limited to Article 78 proceedings. For this rationale and the arguments made herein, the decision of the Fourth Department Appellate Division should be affirmed in full. NATURE OF THE CASE The appellants incorrectly state the nature of the case. Kimmel was subject to ugly forms of hostile workplace sexual harassment from insecure male troopers from the very first day she started working as a female trooper at the Bath Substation. She was in the first class at the NYSP Academy that permitted women 4 to train and become New York State Troopers. The harassment is summarized in great detail in her complaint and attached to it are the cartoons and other physical evidence that depict the ugly truth about insecure male Troopers who tormented not only Kimmel but many other women troopers in other substations across New York State. She sought to bring a class action, she sued for injunctive and declaratory relief and other equitable relief, in addition to federal causes for violation of civil rights, constitutional claims and also under the state’s Human Rights Law. The Appellants wholly mischaracterize the ordeal suffered by Kimmel and wants to paint her as a greedy woman seeking to gain millions from the state, as the reason why she commenced her civil action. The case was delayed by the state for the first two years. It delayed in not responding to a discovery request for documents. When the state and NYSP failed to timely object, interpose objections, or otherwise seek relief from the dictates of the discovery rules under the CPLR, it brought a simple motion before the first lower court Justice who ordered the state and NYSP to produce documents. The state and the NYSP filed a notice to appeal the decision and under the CPLPR, it delayed the case for one year. During that time period, the state and NYSP FAILED to perfect its appeal. Thereafter attorney general withdrew from the case and the present attorneys for the state and NYSP replaced them. In the next 2 -3 years, the only matter being re-litigated over and over was the state and NYSP 5 trying to void its obligations to produce documents. There was at least 5 orders directing the state or produce documents, two of which were made by the Fourth Department. When they continued to not follow those orders, the Fourth Department struck the answers of the state and NYSP. The issues for trial were those of economic damages. It still took time to have documents produced and reviewed. However, it was not until 2006 when the case was finally tried. At this point, the case had its third Justice and more than ten years elapsed. Because of the lengthy delay in getting the matter tried, things changed and the prayers for equitable relief, particularly the one to get Kimmel reinstated or to attempt to pursue a class action, made the case one of economic damage losses for Kimmel. The bulk of her jury award was for back and forward loss pay and for lost retirement benefits. The verdict amounts are accurately detailed in Appellants Nature of the Case recitation. While the writer for the appellants continue to call the nature of the damages as compensatory, in fact under Human Rights Law language it is economic losses, those one would see under any claim against an agency that deprived other state residents of losses, in addition to a claim of pain and suffering. After the trial, Plaintiff-Respondent brought a motion for attorneys’ fees and costs under Article 85, as well as the former attorney for Kimmel, Logan-Baldwin. The lower court denied fees and costs under Article 86 and an appeal was taken to 6 the Fourth Department. The Fourth Department overturned the lower court and ruled that plaintiff was entitled to seek fees and costs under Article 86 and the case was remanded for the lower court to determine the amount of fees and costs to be awarded. [A-1054-1065]. It was a lengthy process to have the court review additional motions based on the Fourth Department decision. Ultimately the parties settled all issues under Article 86 except whether or not the Plaintiff-Respondent was an eligible party as having a net worth of $50,000 or less. The lower court ruled she did. Appellants appealed the decision to the Fourth Department and the lower court decision was affirmed. The state was required to pay additional fees and costs because the Appellant Division found the state and NYSP were not substantially justified in appealing the lower court decision. The parties settled on the amount of the additional fees owing to Plaintiff-Respondent and the Intervenor-Respondent. [A- 1050-1052]. The remaining portion of the appellants’ statement about the nature of the case, at the bottom of page 7 to the end is essentially accurate. 7 ARGUMENT POINT I EAJA DOES NOT EXCLUDE ACTIONS BROUGHT UNDER THE NEW YORK STATE HUMAN RIGHTS LAW BY THE PLAIN MEANING OF THE LANGUAGE OF THE EAJA STATUTE Point A: Article 86 Does Not Limit The Award Of Counsel Fees And Costs Exclusively In Article 78 Proceedings. The first argument the appellant makes is that the EAJA limits counsel fees and costs to certain actions against the state. However, the plain language of EAJA, §8601(a) contradicts this and says: . . . 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. Whether 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. Fees shall be determined pursuant to prevailing market rates for the kind and quality of the services furnished, except that fees and expenses may not be awarded to a party for any portion of the litigation in which the party has unreasonably protracted the proceedings. [emphasis added]. This is the sole issue presented for review to this court. Does EAJA not permit claims brought under the Human Rights Law of New York State? The Appellant Court said no. The appellants want this court to read into the language of Article 86 that it applies to only certain cases that are brought under Article 78. 8 The Appellate Court ruled correctly when it said; the language of Article 86 is clear and unambiguous. Citing Matter of Rochester Community Sav. Bank v Board of Assessors of City of Rochester, 248 AD2d 949, 950 [1998], lv denied 92 NY2d 811 [1998], the Appellate court reiterated that “[w]here words of a statute are free from ambiguity and express plainly, clearly and distinctly the legislative intent, resort may not be had to other means of interpretation. . . “ The appellant insists, by the same section that says, any civil action, §8602(a), prescribes and exclusively limits EAJA to Article 78 proceedings. This section says, Any civil action or proceeding brought 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. [emphasis added]. The appellants argue that the above language makes Article 86 exclusively applicable to Article 78 proceedings. This is a strained and improper reading of the statute. It is not supported by legislative intent or the 19989 legislative history of the statute that was enacted. All other requirements under Article 86 have been resolved and satisfied for purposes of presenting the single issue before this court, of whether EAJA applies to actions brought under the Humans Rights Law. Accordingly, there is no dispute that the appellant New York State Police was not substantially justified in its actions against the plaintiff Betty Kimmel by allowing hostile work environment 9 sexual harassment continue against her. It went unaddressed against her, but also within the ranks of other women troopers since at least 1983 when Gov. Cuomo issued Executive Order 19, dated May 31, 1983. [R A-464]. It directed state departments, agencies, boards, commissions, or other entities under the jurisdiction of the executive branch to issue strong policy statements defining and prohibiting sexual harassment in the workplace. It also directed appropriate training to instruct and sensitize all employees about sexual harassment. It also directed that appropriate guidelines be developed to ensure swift and thorough investigation of allegations and complaints of sexual harassment and enforcement of appropriate sanctions including disciplinary actions. It was years before the State Police acted to comply with this Executive Order. The plaintiff’s complaint sets forth what she experienced at the New York State Police until she was beaten by a mail trooper and suffered PTSD preventing her from returning to work. [R A-21–68]. The appellant kept characterizing Kimmel’s complaint as a plenary action seeking millions of dollars in compensatory damages. Contrary to such assertions, Kimmel brought her action in May 1995 [almost 20 years ago] that laid out a number of causes of actions. The causes of action included various theories under the Human Rights Law; Title VII of the Civil Rights Law for Discrimination under federal law; Civil Right Violations under 42 USC §1983; the Civil Rights Law of 10 New York State; Violations under New York State Constitution; Negligent Infliction of Emotional Distress; Negligent Hiring/Retention of Wrongful Employment; and Spousal Claims. In her relief, she requested preliminary and permanent injunctive relief, for a declaratory judgment for various issues, for economic losses including loss of salary, back pay, front pay, benefits, and other remunerations including a money judgment. The complaint also requested a class action for other persons similarly situated [other female troopers]. With the nature of the complaint in its entirety, to simply say it was a plenary action seeking millions of dollars in damages is coloring the facts of this case to make it sound like a tort or Court of Claims case. As to the Plaintiff-Respondent’s net worth, the plaintiff was insolvent at the time of the commencement of the action because she lost her job and did not have the income to pay her bills, all because of the State Police’s failure to comply with Executive Order 19. She and her husband filed for bankruptcy. 1 It is clear, the plaintiff brought a civil action against the State and its subdivision, the State Police. This satisfied the requirement of EAJA in §8602(g). The definition under §8602(a) defines action. It specifies two types: (1) any civil action or (2) proceeding. The term civil action is plain and clear. 1 The latter was the subject of the 2012 appeal before the Fourth Department for which the appellants filed a notice of appeal. They lost the appeal and the plaintiff-respondent was awarded fees and costs. 11 Proceedings would include such matters as those brought under Article 78. In fact, §8602(f) speaks of a plaintiff or a petitioner. Plaintiff refers to actions brought in the Supreme Court, or courts of general jurisdiction. The use of petitioner speaks of administrative proceedings. Section (f) speaks of the prevailing party requirement under EAJA, and defines it as a “plaintiff or petitioner in the civil action. . .” It does not say, the petitioner is an Article 78 proceeding. Under subsection (g), defines state to mean, “the state or any of its agencies or of its officials acting in his or her official capacity.” It does not limit EAJA to just its agencies, but includes the state. Not all civil actions against the state are limited to Article 78 proceedings. Assuming arguendo that EAJA is limited to Article 78 proceedings, why have all the plain language about civil actions or plaintiff. The arguments of the appellant run a circular route when the entire legislature had to do was to say, in plain language, Article 86 is limited solely to Article 78 proceedings, but it does not. The purpose of Article 78 was to replace writs for certiorari, mandamus, and prohibition. These are very limited proceedings: . . . challenge a determination: (1) which is not final or can be adequately reviewed by appeal to a court or to some other body or officer or where the body or officer making the determination is expressly authorized by statute to rehear the matter upon the petitioner's application unless the determination to be reviewed was made upon a rehearing, or a rehearing has been denied, or the time 12 within which the petitioner can procure a rehearing has elapsed; or (2) which was made in a civil action or criminal matter unless it is an order summarily punishing a contempt committed in the presence of the court. Parties are defined under §7802 in Article 78 proceedings and the state is not a listed entity. It includes: “body or officer . . .that includes every court, tribunal, board, corporation, officer, or other person or aggregation of persons, whose action may be affected by a proceeding under this article.” The state cannot be sued as a named defendant. See Ferrick v State of New York, 198 A.D. 2d 822 4 th Dept 1993); Patchogue Scrap Iron and Metal Co., Inc. v. Hollis S. Ingraham, as Commissioner of the Department of Health of the State of New York, 57 Misc 2d 290 (1968 Suffolk Co Sup Ct); and Capruso v. N.Y. State Police, 300 A.D. 2d 27 (1 st Dept 2002). The EAJA speaks about the position of the state for which judicial review is sought. You cannot bring an action against the state under Article 78, how then can EAJA speak about the state as a party if EAJA is exclusively limited to Article 78 proceedings? Section 8602(g) defines State to mean, “. . .the state or any of its agencies or any of its officials acting in his or her official capacity.” This is the fallacy of the appellant’s argument that Article 86 is exclusively limited to Article 78 proceedings. It is interesting that EAJA expressly restricts actions that are brought in the Court of Claims. The legislature was able to expressly write into EAJA what 13 actions were not permitted. It then was quite able to limit Article 86 to Article 78 proceedings if that was the legislature’s choice. But it did not. Why would the legislature make it plain and clear to exclude Court of Claim actions, but at the same time, require a twisted reasoning to be relied upon as put forth by the appellants, to infer or imply that Article 86 is exclusively limited to Article 78 proceedings? The answer is obvious; the legislature would have expressly stated their intent to limit Article 86 to Article 78 proceedings by saying so. Point B: The Appellants Argue Judicial Review Has A Limited Meaning To Include Only Reviews Under Article 78 The second argument appellants rely upon is that the term “judicial review” is strictly limited to review of matters raised in Article 78 proceedings, and therefore, initially, an action for fees and costs under Article 86 can only apply to proceedings commenced under Article 78. The Appellants quote the Fourth Department in the Kimmel decision from t Tompkins v. Hunter, 149 N.Y. 117, 123 (1896) to support their position about the limited and restrained definition of judicial review. In fact, the majority in Kimmel was referencing Tompkins with respect to Article 86 about the phrase any civil action, and saying Tompkins was not limiting EAJA. The phrase has a plain, meaning, any civil action. The appellants incorrectly use Tompkins to restrict EAJA about judicial review, when Tompkins in fact speaks of language being 14 employed that has no absurdity or contradiction in its usage. The phrase civil action is plain and clear. It is used right next to the next kind of action defined in §8602(a) by a proceeding. Civil action is defined as an “action brought to enforce, redress, or protect private rights.” See Black’s Law Dictionary, 16 th Edition 1990. Whereas, judicial review is not so clear-cut as appellants assert. They assert it is limited to administrative proceedings, but they cite no authority for this proposition. When in fact, judicial review is a widely used term of general meaning for review of many different issues. The appellants cite no authority to limit its meaning solely to a review of administrative proceedings. Point C: Case Law Under Article 86 May See That Many Article 78 Proceedings Seek Benefits Under Article 86, But That Is Not A Limiting Restriction On The Use Of Article 86. Appellant’s third argument is that most of the cases cited in the case law for the use of Article 86 is through Article 78 proceedings. It is clear Article 86 does not exclude Article 78 proceedings. Article 78 proceedings do grant the public the option of redress for harms by the state agencies and state employees [but not by the state] but in conjunction with the EAJA, a prevailing petitioner can seek and obtain the services of an attorney to give advice about the merits of their case and if supportable, can take the chance of winning and having their attorney paid fees and costs. It is clear that EAJA, in many of the legislative materials to the 15 enactment of the 1989 act, was to provide a basis for court access by low income state residents who were unable to get the legal assistance they needed to help evaluate the merit of their claims. As has been stated, it put the public on an equal footing or perhaps better said, by putting them on a higher footing to seek redress from the state. Certainly low-income persons, like Kimmel, bordering on bankruptcy, who would never find counsel to pursue redress for the harms brought about by the state and its agencies. Without EAJA, many persons would not be able initiate actions or even think about initiating an action or a proceeding under administrative law. The sign that there are many cases under EAJA, means there is success that ordinary and low-income state residents are using the statute. It is also worthy to note, that the EAJA does not limit monetarily the harms suffered by state residents and their access to seek redress. The statute limits the availability of Article 86 to persons whose net worth is under $50,000, excepting out their homestead, but it does not limit the nature of their harm or restrict their award to a certain dollar amount or how much they could recoup by way of economic losses or otherwise. Nor does EAJA limit the maximum amount of fees and costs that can be awarded to an attorney who takes the chance to represent a state resident seeking redress of harms suffered. Certainly, the fact that Article 78 is being used more frequently is a sign that 16 Article 86 is working well. But Article 86 is not limited to Article 78 proceedings. Point D: The Court Of Claims Exclusion Does Not Limit Article 86 To Only Article 78 Proceedings. The fourth argument used by the Appellants is that the exclusion of Court of Claims actions proves Article 86 is limited to Article 78 proceedings. The fallacy of this argument is apparent. The appellants erroneously argue that the majority in the Kimmel decision said it was unnecessary to include exclusion for Court of Claim cases, proving the appellants argument that Article 86 is limited to Article 78 proceedings. In fact, the majority appropriately reasoned, that had the legislature intended that Article 86 was limited to Article 78 proceedings, there would be no need to exclude Court of Claims actions. But in fact, the legislature did include the language as an exception, disproving appellants’ arguments. If Article 86 refers to any civil action then it is necessary to put in the exclusion for Court of Claims cases. The appellants further argue, that to exclude Court of Claims cases would eliminate tort cases. But Kimmel’s case is not a tort case. The majority correctly so decided. A tort claims is one that is a product of common law. The Human Rights Law statute is a creation of the legislature and is not a tort action. However, relying on Matter of Alfonso v. Fernandez, 167 Misc 2d 793 (1995, Richmond Co.), 17 a tort case may not be excluded from Article 86 benefits. That court reasoned in a 1988 case before it, was time barred to seek attorney fees and costs. The federal statute required that a motion be made within 15 days. The EAJA provides for a motion to be made no later than 30 days after a decision or award. The Supreme Court discussed Article 86, and said because of the plain meaning of civil action . . . “that [Article 86] applies to actions in any civil litigation, it certainly can and does include actions brought to enforce one's civil rights, or to remedy a violation thereof, against the State.” Court of Claims did not have jurisdiction at the time of the commencement of plaintiff’s case in May 1995. Her complaint sought equitable relief, injunctive and declaratory relief. Koerner v. State of New York, 62 N.Y. 2d 442 (1984). The intertwining way the Kimmel case traveled through the lower court, and after a motion to dismiss various causes of action, and all the appeals made the by the state, which delayed the case, because when the state appeals any trial court decision, the case is stayed at the trial court level until the appeal concludes. By the time the case came for trial in 2006, after the State and the State Police answers were stricken, liability was established, and the only remaining issues were for economic damages including back and forward loss pay, pensions benefits, and also pain and suffering damages. The delay of 9 years in getting the case to trial, dissolved the equity claims. However, that did not change the character of 18 Kimmel’s action and it remained a Human Rights Law case. Kimmel’s case was never and could not be a Court of Claims case. Point E: Human Rights Law Case Are Not Torts And The Court Of Claims Did Not Have Jurisdiction To Hear Human Rights Law Cases. The fallacy of appellants fifth argument is that Kimmel did not have a tort claim and nor did she have a case to be heard in the Court of Claims. Under the Human Rights Law, the legislature clearly set forth its purpose in §290(3): The legislature hereby finds and declares that the state has the responsibility to act to assure that every individual within this state is afforded an equal opportunity to enjoy a full and productive life and that the failure to provide such equal opportunity, whether because of discrimination, prejudice, intolerance or inadequate education, training, housing or health care not only threatens the rights and proper privileges of its inhabitants but menaces the institutions and foundation of a free democratic state and threatens the peace, order, health, safety and general welfare of the state and its inhabitants. A division in the executive department is hereby created to encourage programs designed to insure that every individual shall have an equal opportunity to participate fully in the economic, cultural and intellectual life of the state; to encourage and promote the development and execution by all persons within the state of such state programs; to eliminate and prevent discrimination in employment, in places of public accommodation, resort or amusement, in educational institutions, in public services, in housing accommodations, in commercial space and in credit transactions and to take other actions against discrimination as herein provided; and the division established hereunder is hereby given general jurisdiction and power for such purposes. The Human Rights Law does not provide for an award of attorneys and costs to a prevailing party. The Court of Claims was never intended to hear Human 19 Rights Law cases as the legislature created a Human Rights Law Division Commission. It was designed to provide equitable relief and fashion remedies to address violation in state government. However, bringing a case before it is voluntary. Because of the other causes of action in Kimmel’s complaint, the Human Rights Law Commission would not have had jurisdiction to hear those other causes of action. Claims for hostile environment sexual harassment are statutory creations and do not derive their existence from common law. In Treanor v. Metro Transportation Authority and LIRR, 414 F. Supp 2d 297 (USDC So Dist NY 2005), the Second Circuit in following New York law said that those actions “created or imposed by statute” are governed by the three-year statute of limitations under C.P.L.R.§214(2). It said, “[t]his statute of limitations governs claims of employment discrimination on the basis of disability in violation of New York State Human Rights Law . . .” While this is not an issue in the instant matter, it is persuasive for the proposition, that §296 actions is not treated as a tort, but as a statutorily created cause of action. It never existed at common law. The Second Circuit affirmatively stated that employment discrimination claims are not tort actions. Id at 303. In support of that finding, the court relied on New York case law found in footnote 50: Picciano v. Nassau Co. Civil Service Comm'n, 290 A.D.2d 164, 170, 736 N.Y.S.2d 55 (2d Dep't 2001). Accord Monsanto v. Electronic 20 Data Sys. Corp., 141 A.D.2d 514, 515, 529 N.Y.S.2d 512 (2d Dep't 1988) (citing Murphy v. American Home Products Corp., 58 N.Y.2d 293, 293, 448 N.E.2d 86, 461 N.Y.S.2d 232 (1983)) "[A] discrimination claim under the Human Rights Law is an action created by statute, which did not exist at common law, and therefore cannot give rise to tort liability."). The Second Circuit also found that discrimination claims, by not being a tort, was not required to follow the notice requirement under N.Y. Gen. Mun. Law §50- e. The latter statute requires persons who make claims, sounding in tort, against municipalities, to give the appropriate notice under said law. The New York authority relied upon is found in footnote 56: See Brodie v. New York City Transit Auth., 1998 U.S. Dist. LEXIS 14129, No. 96 Civ. 6813, 1998 WL 599710, at *10 (S.D.N.Y. Sept. 10, 1998) ("the weight of recent authority holds that an employment discrimination action under HRL §296 is not a tort action"); Hamm v. New York City Office of the Comptroller, 1998 U.S. Dist. LEXIS 2345, No. 95 Civ. 6367, 1998 WL 92395, at *6 (S.D.N.Y. Mar. 4, 1998) ("the Court aligns itself with the line of cases holding that discrimination claims brought under Executive Law §296 are not tort actions"); Sussman v. New York City Health & Hosps. Corp., 1997 U.S. Dist. LEXIS 8531, No. 94 Civ. 8461, 1997 WL 334964, at *14 (S.D.N.Y. Jun. 16, 1997) ("a claim pursuant to Executive Law §296 is neither a claim for personal injuries nor a tort claim"); Dimonda v. New York City Police Dep't, 1996 U.S. Dist. LEXIS 5286, No. 94 Civ. 0804, 1996 WL 194325, at *6 (S.D.N.Y. Apr. 22, 1996) ("the most recent case law from the Appellate Division of the New York State Supreme Court ... hold[s] that the notice of claim provisions embodied in §§50- e and 50-i are not applicable to claims of discrimination brought pursuant to Executive Law § 296"); Picciano, 290 A.D.2d at 170. But see Duck v. New York City DOT, 1994 U.S. Dist. LEXIS 11226, No. 93 Civ. 7388, 1994 WL 440666, at *5-6 (S.D.N.Y. Aug. 12, 1994) (applying section 50 to discrimination claim), Larry v. New York City Dep't of Sanitation, 1994 U.S. Dist. LEXIS 4231, No. 92 Civ. 0913, 1994 WL 121816, at *5 (S.D.N.Y. Apr. 7, 1994) (same). 21 In Dortz v. The City of New York, New York City Health and Hosp. Corp., Mt. Sinai Hosp., and Elmhurst Hosp., 904 F. Supp 2d 127 (USDC So Dist NY 1995), involved a plaintiff who was subjected to similar hostile environment sexual harassment as Kimmel. This plaintiff was repeatedly subjected to sexually charged verbal comments and acts of retaliation as a result of her complaints about her supervisor’s improper conduct. The Second Circuit, following New York law, asserted, “[s]ince both federal and New York courts do not regard an action brought under Executive Law §296 to be a tort action, such claims are not subject to the notice of claim requirements of General Municipal Law §50-e.” The following authority was cited: Pearl v. City of New York, No. 87 Civ. 4932 (CSH), 1991 U.S. Dist. LEXIS 12582, 1991 WL 206315, * 4 (S.D.N.Y. Sept. 27, 1991) ("§296 is not subject to the notice of claim provisions contained in General Municipal Law §50-e . . . Plaintiff's §296 claim will not be barred by her failure to file a notice of claim pursuant to Municipal General Law §50-e.") (citing Mills v. County of Monroe, 89 A.D.2d 776, 453 N.Y.S.2d 486, 487 (4th Dept.), aff'd, 59 N.Y.2d 307, 464 N.Y.S.2d 709, 451 N.E.2d 456 (1982), cert. denied, 464 U.S. 1018, 104 S. Ct. 551, 78 L. Ed. 2d 725 (1983). See also Davis v. New York City Dept. of Mental Health, No. 88 Civ. 8999 (DC), 1994 U.S. Dist. LEXIS 17063, 1994 WL 669494, * 1 (S.D.N.Y. Nov. 29, 1994) (notice provisions in General Municipal Law §50-i inapplicable to plaintiff's state Human Rights Law claim, since §50-i applies to tort actions, not employment discrimination suits, against New York City); Majors v. New York [**23] City Dept. of Sanitation, No. 91 Civ. 8742 (TPG), 1993 U.S. Dist. LEXIS 12187, 1993 WL 336949, * 2 (S.D.N.Y. Sept. 3, 1993) (General Municipal Law §50-e inapplicable [*142] to state discrimination claim brought under Executive Law ß 296); Accord Hilow v. Rome City School Dist., No. 91 Civ. 567, 1994 U.S. Dist. 22 LEXIS 8953 at *26, 1994 WL 328625, * 8 ("claims under §296 do not constitute torts subject to the notice of claim provisions of Education Law §3813(2) and General Municipal Law §§50-e and 50-i incorporated therein."). Since there is no requirement that Plaintiff file a notice of claim for her claims brought under Executive Law §296, her failure to do so does not deprive the Court of jurisdiction. Three other cases from the Second Department also follow the rule that Executive Law §296 cases are not tort actions. Scopelliti v. Town of New Castle, 210 A.D. 2d 308 (1994); Lane-Weber v. Plainedge Union Free Sch. Dist., 213 A.D. 2d 515 (1995); and Polvino v. Island Group Admin., Inc., 264 A.D. 2d 720 (1999). 2 Point F: Kimmel Did Not Have Ample Incentive Or Opportunity To Pursue Her Claims Appellants through their brief are characterizing Kimmel’s suit in a derogatory manner to try and color this appeal as one involving a greedy state resident wanting to gain millions from the State of New York. This argument is so far from the truth, it is close to be unprofessional and ignores the facts that brought Kimmel to the point of bringing a suit. The record provided to the court has the plaintiff’s affidavit of November 25, 2008 [R-595]. Kimmel explains her actions while with the State Police and what she did to try and stop the hostile work environment she was experiencing. Her first complaint to the State Police 2 Citing arguments from Kimmel’s Brief in Chief before the Appellate Division of the Fourth Department. 23 higher- ups came in 1982, before the Governor’s Executive Order 19. It included her various experiences since being place in Bath in 1979. The Personnel Complaints were made under Article 9 of the State Police handbook. It was only during discovery in her case below that she learned the results. While one supervisor was suspended for three (3) days, Kimmel was transferred to Brockport. She continued to experience a hostile work environment sexual harassment in Brockport. Her experience with the complaint process did not stop any of the behaviors by male troopers against female troopers. Kimmel was beaten by a male trooper, and ultimately, could not return to work having been diagnosed with PTSD. Kimmel tried to find an attorney and consulted with 5 – 6 attorneys and no attorney wanted her case. One attorney told her she had no case. She did not have money to pay an attorney an hourly rate to pursue her claims. She wanted to bring to light the sexual harassment that female troopers were experiencing and she wanted it stopped. While her federal claims may have provided for fees and costs, she was never able to find an attorney to take her cases before the expiration of the EEOC deadline for bringing those federal claims. It was based, in part, on this timeliness argument that the federal causes of action were dismissed. 24 Certainly, when she first spoke with an attorney in 1982, EAJA did not exist and she walked away from suing the State and the State Police because she did not have the money. EAJA did not exist. Kimmel found a female attorney [R-614] and another and the case was filed in May 1995. It cannot be stated that Kimmel had ample incentive and opportunity to pursue her claims. By not being able to timely find an attorney to take her case, she lost bringing federal claims. In fact, the dismissal by so many attorneys in not taking the case, she was never advised of EAJA. Contingencies fees are the only way for someone to get an attorney. The risk for the attorney is not being remunerated sufficiently, or even at all in risking representing a state resident under New York for harms created when the state legislature consistently does not provide for a scheme for payment of attorney fees and costs. Point G: EAJA Does Provide Incentives For State Residents To Seek Redress Of Harms Suffered Because Of Acts Or The Failure To Act By The State Or State Agencies, However, Attorneys Representing The State And Its Agencies Are Well Paid By comparison, even EAJA does not put low-income residents on an equal footing with the state in pursuing their claims. The state pays enormous sums for private attorneys to represent the state and its agencies in these claims. For instance, the attorneys representing the State and the State Police have earned 25 hundreds of thousands in fees, and perhaps even close to a million dollars over 20 years. The long-standing attorney representing Kimmel has not received payment. And the claim purportedly settled by the long-standing attorney for Kimmel, does not compare with the state’s fees and costs. Sole practitioners know how to economize. Large firms have fees for anyone who works on the case. Even after trying the case in 2006, it is now nine (9) years later and litigation continues. The state is fighting the plain language of Article 86, while continuing to pay enormous fees in appealing that question. While EAJA may try to lessen procrastination by the State, it as only sparked more litigation in the instant matter. POINT II THE APPELLATE COURT PROPERLY CONCLUDED THAT BECAUSE OF THE PLAIN AND CLEAR LANGUAGE OF THE STATUTE, THE AWARD OF ATTORNEYS’ IS PROPER UNDER ARTICLE 86 AND THAT THERE IS NO NEED TO RESORT TO THE LEGISLATIVE HISTORY TO DISCERN THE INTENT OF THE LEGISLATURE The Appellate Court said that even if it considered the legislative history, their decision would have been the same. They start by saying, the only history would be that associated with the enactment of EAJA is in 1989. There were prior enactments with their own histories and the ending EAJA bears little resemblance to the earlier versions. 26 However, this Court, as early at 1854, in McCluskey against Cromwell, 11 N.Y. 593 set forth the rule concerning the construction of statutes. Quoting it is quite germane to the defeating the arguments presented by the appellants herein: It is beyond question the duty of courts in construing statutes, to give effect to the intent of the law-making power, and seek for that intent in every legitimate way. But in the construction, both of statutes and contracts, the intent of the framers and parties is to be first of all, in the words and language employed, and if the words are free from ambiguity and doubt, and express plainly, clearly and distinctly, the sense of the framers of the instrument, there is no occasion to resort to other means of interpretation. It is not allowable to interpret what has no need of interpretation, and when the words have a definite and precise meaning, to go elsewhere in search of conjecture in order to restrict or extend the meaning. Statutes and contracts should be read and understood according to the natural and most obvious import of the language, without resorting to subtle and forced construction for the purpose of [*602] either limiting or extending their [**18] operation. Courts cannot correct supposed errors, omissions or defects in legislation, or vary by construction, the contracts of the parties. The office of interpretation is to bring sense out of the words used, and not bring a sense into them (Leiber’s Polit. and Le. Hermeneutics, 87; 2 Ruth. Inst. Ch. 7,§2; Story’s Comm. §392; Purdy v. The People, 4 Hill, 384; Smith’s Statutes, &c. §478; Walter v. Harris, 20 Wend. 561.) This rule is well expressed by Judge Johnson, in Newell v. The People, (3 Selden, 97) in these words, [HN4] “Whether we are considering an agreement between parties, a statute or a constitution, with a view to its interpretation, the thing we are to seek is, the thought which is expresses. To ascertain this, the first resort in all cases, is to the natural signification of the words employed, in the order and grammatical arrangement in which the framers of the instrument have placed them. If this regarded, the words embody a definite meaning, which involves no absurdity and no contradiction between different parts of the same writing, then that meaning apparent upon the face of the instrument is the one which [**19] alone we are at liberty to say was intended to be conveyed. In such case, there is no room for construction. That which the words declare, is the meaning of the instrument; and neither courts nor 27 legislatures have the right to add to, or take away from that meaning. [emphasis added] This court employed this rule in many subsequent cases brought before it, and a sampling include: Bockes v. Wemple, 115 N.Y. 302 (COA, 1889) . . . the intent of the legislature is to be sought, primarily, in the words used, and, if they are free from ambiguity, there is no occasion to search elsewhere for their meaning; Schoonmaker v. Hoyt et al., 148 N.Y. 425; 42 N.E. 1059; 1896 N.Y. LEXIS 570, (COA, 1896), if the words employed convey a definite meaning, and there is no contradiction or ambiguity in the different parts of the same instrument, then the apparent meaning of the instrument must be regarded as the one intended; In the Matter of Rathscheck, 300 N.Y. 346 (COA, 1950), it is not allowable to interpret what has no need of interpretation, and when the words have a definite and precise meaning, to go elsewhere in search of conjecture in order to restrict or extend the meaning; supposed errors, omissions or defects in legislation * * *. The office of interpretation is to bring sense out of the words used, and not bring a sense into them; New Amsterdam Cas. Co. v. Stecker, 3 N.Y. 2d 1, (COA, 1957), this court has declared on numerous occasions that where the language of a statute is without ambiguity, and the meaning unequivocal, there is no necessity for resort to rules of construction. 28 The Fourth Department decision in Kimmel correctly adhered to this principle and said: “We conclude that, under a plain reading of the statute, the EAJA applies to this action. The EAJA unambiguously applies to "any civil action brought against the state" (CPLR 8601 [a] [emphasis added]; see Matter of Greer v Wing, 95 NY2d 676, 680 [2001]), "except as otherwise specifically provided by statute" (CPLR 8601 [a]).” This Court relied upon Greer in determining the intent of New York’s EAJA. This Court said, One year after adopting the EAJA, the New York Legislature amended CPLR 8600 by deleting reference to 5 U.S.C. § 504 and substituting reference to 28 U.S.C. § 2412 (L 1990, ch 73, § 1). Section 2412 provides for fees to a prevailing party "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 U.S.C. § 2412[d][1][A]). To this day, CPLR 8600 provides that the New York EAJA is intended to be "similar to the provisions of federal law contained in 28 U.S.C. § 2412(d) and the significant body of case law that has evolved thereunder." Like 28 U.S.C. § 2412(d)(1)(A) — the federal counterpart — section 8601(a) of the EAJA states that fees and other expenses may be awarded in favor of a prevailing party "in any civil action brought against the state, unless the court finds that the position of the state was substantially justified." An "action" is, according to the statute, "any civil action or proceeding brought to seek judicial review of an action of the state" (CPLR 8602[a]). Fees and expenses are delimited as "the reasonable expenses of expert witnesses, the reasonable cost of any study, analysis, consultation with experts, and like expenses, and reasonable attorney fees, including fees for work performed by law 29 students or paralegals under the supervision of an attorney incurred in connection with an administrative proceeding and judicial action" (CPLR 8602[b]). [emphasis added] And this Court concluded: Section 8601(a) limits the award of fees and expenses to those incurred "in any civil action brought against the state" (emphasis added). As noted, an action is specifically defined as "any civil action or proceeding brought to seek judicial review of an action of the state" (CPLR 8602[a]). Thus, an award of attorneys' fees and other allowable expenses to a prevailing party first requires a civil action. . .” The Fourth Department decision followed exactly the reasoning outlined in Greer and came to the same conclusion that Article 86 applies to any civil action. The Article 86 exception for fees and costs is if fees and costs are provided for under another or different statute. It is without doubt and not in dispute by the appellants that fees and costs are not provided to a prevailing party under New York State Human Rights Law. See Beeachwood Restorative Care Ctr. v. Signor, 5 NY 3d 435, 443 (2005). This Court clearly said, “[t]he introductory proviso of subdivision (a) demonstrates that the EAJA applies to actions against the State only where another statute does not specifically provide for counsel fees.” The Fourth Department correctly concluded that under the plain meaning of the statute, and decisions from this court EAJA applies to the Kimmel case. There is no need to examine the legislative history. The legislative intent is set forth in §8600 and follows the intent of the federal statute. The only other exclusion are cases brought in the Court of Claims, and that has already been discussed, supra. 30 Point A: The 1989 Enactment Of EAJA Eliminated Critical Language That Opened EAJA To Any Civil Action. The Fourth Department, while saying it did not need to examine the legislative history, nonetheless considered it to show the same result would have been reached. The Fourth Department was clear, all the older bills attempted at enacting an EAJA statute had no likeness or relevance to the one enacted in 1989. While the appellants relied heavily on comments made during the prior legislative processes [that did not lead to any enactments], they in essence ignored the history of 1989, the one most relevant. The 1989 act did not resemble the prior attempted enactments and comments for the support of those prior attempts did not lend any assistance in ultimately what was written and passed by the legislature in 1989. For instance, the Court examined the history in 1982 and what was written for an act, and noted that it excluded state employees and was limited to judicial review of an agency action only. Certainly, the legislature was able to definitively write what they intended. This limiting language does not appear in the 1989 enactment. There is no doubt that had the legislature intended to limit EAJA to Article 78 proceedings it would have used that precise limiting language it used in the 1982 draft. It did not. To try and say the 1989 enactment, by some convoluted 31 twisting of the statute with the old legislative history means it is only limited to Article 78 proceedings is to deny the clear legislature intent when it chose not to include that limiting language from the 1982 writing in the 1989 act. They very well knew they could limit the application of EAJA, but the legislature did not limit it. In fact, it expanded the 1982 language to include, any civil action. This was new and the intent of the legislature was clear. The principles behind the entire statute, was to provide access to the courts to redress wrongs for the poor or low-income residents. These are persons unable to afford the high cost of legal fees for attorneys. To insure this, the legislature limited those persons whose net worth is under $50,000 [not included their primary residence]. The statute provides access to the courts, not just administrative proceedings, but any civil action. Further, if the legislature intended to limited the amount of attorneys’ fees and costs a prevailing party could seek against the state, it certainly could have included restrictions about the amount of a recovery. It did not. In fact relying upon the federal EAJA statute, fees are to be paid based on a market rate and reasonableness standard, §8602(b). Point B: While The 1982 Legislative History Quoted By Appellants At Pages 49-53, The Statute Does Not Have Any Restrictive Or Use Limiting Language To Bring A Matter To Address State Action Only By Way Of An Article 78 Proceeding. 32 The appellants argue the same point over and over again that EAJA only applies to agency wrongdoing. How else does the state act? Even in the Kimmel case, the New York State Police Department was ordered under Executive Order 19 in 1983 to stop sexual harassment in the work place as it was a department [agency] of the executive branch. Kimmel made her complaints under Article 9 of the NYSP Manual for which an investigation of her Bath experiences were looked into. Kimmel was never provided with the results of that investigation or that one sergeant was suspended for 3 days. It was only during the litigation of this case did she see that investigative report. [See Kimmel Affidavit, R A-21–68]. At no time, even after she consulted with an attorney in the New York City area, was she advised of Article 86 or that she could have the decision of the NYSP reviewed. In fact, NYSP, it can be argued, hid the report and the investigation from Kimmel so the state would avoid further litigation. That investigation, pursuant to Article 9 of the NYSP Police Handbook, says this was Kimmel’s only avenue for redress. [See Kimmel Affidavit, R A-21–68]. Kimmel, then after being transferred to Brockport, continued to experience sexual harassment and then was beaten by a male trooper that than lead to the hostile work environment sexual harassment civil action. Under EAJA, the Kimmel case is not restricted or limited to Article 78. It was a civil action, against 33 the State, the NYSP, a department of the State and other named individuals. The civil action was designed to seek redress of the violation of laws by NYSP concerning its procrastination in failing to reduce sexual harassment in the State Police. Discovery showed, the state and NYSP, together never adhered to the dictates of Executive Order 19 with respect to NYSP. In a perfect world, had Kimmel sought and obtained an attorney who was aware of the EAJA in 1982, she may have pursued an Article 78 proceeding. But because EAJA is intended to assist and provide equal access to the court for the poor by permitting them the chance to speak and hire an attorney, that opportunity was not available to Kimmel in 1983 and nor was Article 78 because of the fees and costs involved in hiring an attorney to bring one. But it never happened but not for Kimmel’s failure to do so. [See Kimmel Affidavit, R A-21–68]. She brought a civil action under the state’s Human Rights Law, which was not restricted under EAJA. No attorneys’ fees and costs are available under that statutory scheme. The state and it’s agency [NYSP] got their answer struck for failure to produce discovery after numerous orders issued by the lower court and the Appellate Division, making the state was liable. The issue remaining was for economic losses. The long delay in getting the matter to trial only lengthened the extent of her economic losses, which was the majority of her award. For lost pay, front and back and lost pension benefits. Her pain and suffering award was minor 34 in comparison to the economic loss. The amounts of damages were directly related to the delay in the case caused by the state and the State Police. We are now almost at the 20 th year anniversary since the case was commenced. The State Police was a regulated agency. Kimmel was not prohibited as an employee of the state to bring her claims, since that restriction was abandoned. The 1989 bill did not limit only those actions brought via an Article 78 proceeding. It was designed to provide New York citizens with redress against state action including by any civil action, designed to address the harms by the state as well as by its agencies. The appellants want this court to interpret the 1989 enacted legislation as it was written in 1982 and those subsequent bills, while ignoring the major changes brought in the 1989 enactment. Had the legislature intended to further limit the application of civil actions under EAJA, it was surely able to incorporate those restrictions by simply expressing them and saying fees are only limited in Article 78 proceedings. But it did not. CONCLUSION The Fourth Department Appellate Division decision dated June 18, 2010 should be affirmed in its entirety based on the reasons and arguments presented herein and those presented by Vincent Buzard, Esq., Attorney for Intervenor- Respondent, that Plaintiff-respondent adopts as though fully set forth, that CPLR 35 Article 86 is available for the award of fees and costs in the Kimmel case. The Plaintiff-Respondent asks this Court to also affirm the decision of the Fourth Department dated March 28, 2014 concerning the award of attorney’s fees under EAJA for the appeal taken by the appellants, for which the Appellate Division ruled against them and affirming the award of attorneys’ fees as directed thereon. Dated: January 21, 2015 Hilton, New York 14468 s/Harriet L. Zunno HARRIET L. ZUNNO, ESQ. Attorney for Plaintiff-Respondent 35 Heinz Street P. O. Box 624 Hilton, New York 14468 hzunno@rochester.rr.com 585-392-6882