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: MITCHELL J. BANAS, JR., ESQ. (Time Requested: 15 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 DEFENDANTS-APPELLANTS MITCHELL J. BANAS, JR., ESQ. BRADLEY A. HOPPE, ESQ. JAECKLE FLEISCHMANN & MUGEL, LLP Attorneys for Defendants-Appellants Avant Building, Suite 900 200 Delaware Avenue Buffalo, New York 14202-2107 Tel.: (716) 856-0600 Fax: (716) 856-0432 TABLE OF CONTENTS Page TABLE OF CASES AND AUTHORITES ............................................................. iv QUESTIONS PRESENTED .................................................................................... ix STATEMENT OF JURISDICTION.......................................................................... 1 PRELIMINARY STATEMENT ............................................................................... 2 NATURE OF THE CASE ......................................................................................... 4 ARGUMENT ............................................................................................................. 9 I. Article 86 By Its Express Terms Applies Only to Actions Seeking "Judicial Review" of State Agency Action and Not Plenary Actions Seeking Compensatory Damages. ....................12 A. The Term "Judicial Review" in the EAJA Is Clear and Unambiguous. ....................................................................12 B. Case Law Applying Article 86 Confirms that Article 86's Use of the Term "Judicial Review" Limits Its Scope and Applicability to Article 78 and Other Like Proceedings. .....................................................15 C. The Court of Claims Exclusion in Article 86 Further Confirms that It Applies Only to Article 78 and Other Like Proceedings and Not Plenary Actions Seeking Compensatory Damages. ...............................18 D. The Appellate Division Violated Multiple Established Canons of Statutory Construction by Reading the Term "Judicial Review" and Other Like Language Out of the Statute to Hold that It Applies to Plenary Actions Seeking Compensatory Damages. ...................................................................................23 -ii- E. The Appellate Division's Purported Basis for Concluding that Article 86 Applies to All Civil Actions Is Flawed......................................................................26 II. The Stated Purpose of Article 86 to Provide Equal Access to the Courts Is Not Implicated at Bar Because Kimmel Already Had Ample Incentive and Opportunity to Pursue Her Claims. ..........................................................................29 III. The Dissenters at the Appellate Division Correctly Found that Article 86 Does Not Apply to Actions Under the Human Rights Law Seeking Compensatory Damages. ......................31 IV. The Legislative History Was Properly Considered by the Trial Court to Determine the Scope and Purpose of Article 86 and Compels the Conclusion that Article 86 Is Not Applicable Here. ...........................................................................36 A. Legislative History Is Almost Always Relevant, and Is Certainly Relevant Here. ...............................................36 B. Legislative History Confirms that Article 86 Is Limited in Scope and Applicability to Individuals and Small Businesses Who Do Not Have a Financial Incentive to Seek Judicial Review of State Agency Action. ................................................................39 1. The Legislative History to the 1989 EAJA Bill Clearly Confirms that the Scope and Applicability of the Bill Is Limited to Those Actions and Proceedings Seeking Judicial Review of Administrative Action of the State. ...............................................................................41 2. The Legislative History to the Prior EAJA Bills Confirms that the EAJA Is Limited to Actions Seeking Judicial Review of Administrative Action of the State. ................................47 a. The 1982 EAJA Bill. ............................................49 -iii- b. The Subsequent EAJA Bills. ................................53 3. The Legistative History Also Confirms that the EAJA Was So Limited in Scope that It Was Passed With the Expectation that It Would Cost the State Less than $500,000 Annually In Fee Awards. ................................................60 4. The Same Legislative History, Along With Case Law Previously Relied Upon by Respondents, Confirms that the EAJA Does Not Provide a Public Employee the Ability to Obtain an Attorneys' Fee Award Against Her Employer to Enforce a Private Right Under the Human Rights Law. .......................................64 CONCLUSION ........................................................................................................68 -iv- TABLE OF CASES AND AUTHORITES Page Cases 2421 Realty Co. v. New York State Division of Housing and Community Renewal, 193 A.D.2d 571, 598 N.Y.S.2d 213 (1st Dept. 1993), appeal dismissed, 82 N.Y.2d 802, 604 N.Y.S.2d 559 (1993) .............................................................................................................16 Abood v. Hospital Ambulance Service, Inc., 30 N.Y.2d 295, 332 N.Y.S.2d 877 (1972) ............................................................................................38 Adorno v. Port Authority of New York & New Jersey, 685 F. Supp. 2d 507 (S.D.N.Y. 2010)........................................................................................62 Alfonso v. Fernandez, 167 Misc. 2d 793, 635 N.Y.S.2d 932 (Richmond Co. Sup. Ct. 1995) .............................................................................16 Bell v. Helmsley, 2003 N.Y. Misc. LEXIS 537, 2013 N.Y. Slip. Op. 50866(u) (N.Y. Sup. Ct. Mar. 27, 2003) .......................................................61 Biancoviso v. City of New York, 285 A.D.320, 37 N.Y.S.3d 773 (2d Dept. 1955) .....................................................................................................22 Bright Homes v. Wright, 8 N.Y.2d 157, 203 N.Y.S.2d 67 (1960) ...........................15 City of New York v. State of New York, 282 A.D.2d 134, 725 N.Y.S.2d 10 (1st Dept. 2001), aff'd 98 N.Y.2d 740, 750 N.Y.S.2d 819 (2002) ............................................................................................38 Clancy v. State of New York, 126 Misc. 2d 292, 481 N.Y.S.2d 943 (Ct. Cl. 1984) ........................................................................................................19 Cohen v. Lord, Day & Lord, 75 N.Y.2d 95, 551 N.Y.S.2d 157 (1989) ....................................................................................................................24 Collins v. New York State Department of Corr. & Cmty. Servs., 2012 U.S. Dist. LEXIS 151162 (N.D.N.Y, June 29, 2012) .................................62 -v- Dachenhausen v. Crosson, 154 Misc. 2d 132, 585 N.Y.S.2d 281 (Nassau Co. Sup. Ct. 1992) ..................................................................................16 Gebman v. Pataki, 256 A.D.2d 854, 681 N.Y.S.2d 701 (3d Dept. 1998) .....................................................................................................................21 Hanrahan v. Hampton, 446 U.S. 754, 100 S. Ct. 1987 (1980), rehearing denied, 448 U.S. 913, 101 S. Ct. 33 (1980) .........................................11 Harley v. Potter, 2008 U.S. Dist. LEXIS 55476 (W.D. Okla. 2008) .....................................................................................................................66 Hernandez v. Hammons, 98 N.Y.2d 735, 750 N.Y.S.2d 813 (2002) ....................................................................................................................16 Hickey v. Sinnott, 179 Misc. 2d 573, 685 N.Y.S.2d 578 (Albany Co. Sup. Ct. 1998) ................................................................................................16 Insinga v. Cooperative Centrale Raiffeisen Boerenleenbank B.A., 478 F. Supp. 2d 508 (S.D.N.Y. 2007) ..................................................................61 Kauffman v. Maxim Healthcare Services, Inc., 2008 U.S. Dist. LEXIS 77855 (E.D.N.Y. Sept. 9, 2008) ...............................................................61 Kimmel v. State of New York, 115 A.D.3d 1323, 983 N.Y.S.2d 177 (4th Dept. 2014) ...................................................................................................... 7 Kimmel v. State of New York, 286 A.D.2d 881, 730 N.Y.S. 648 (4th Dept. 2001) ...................................................................................................... 4 Kimmel v. State of New York, 76 A.D.3d 188, 906 N.Y.S.2d 403 (4th Dept. 2010) ............................................................................................ passim Koerner v. State of New York, 62 N.Y.2d 442, 478 N.Y.S.2d 584 (1984) ....................................................................................................................19 Kuper v. Empire Blue Cross & Blue Shield, 2003 U.S. Dist. LEXIS 27728 (S.D.N.Y. Dec. 18, 2003) ..............................................................61 Lee v. Higgins, 213 A.D.2d 553, 624 N.Y.S.2d 49 (2d Dept. 1995) .......................11 -vi- Levy v. Powell, 2005 U.S. Dist. LEXIS 42180 (E.D.N.Y. July 2005) .....................................................................................................................62 Lewis v. Triborough Bridge & Tunnel Authority, 2001 U.S. Dist. LEXIS 11205 (S.D.N.Y. Aug. 6, 2001) ...............................................................61 Matter of Jennings v. Commissioner, New York State Department of Social Services, 71 A.D.3d 98, 893 N.Y.S.2d 103 (3d Dept. 2010) .....................................................................................................................47 Matter of Walker v. Novello, 36 A.D.3d 1100, 828 N.Y.S.2d 656 (3d Dept. 2007) .....................................................................................................16 McIntyre v. Manhattan Ford, Lincoln-Mercury, 176 Misc. 2d 325, 672 N.Y.S.2d 230 (Sup. Ct. N.Y. Co. 1997) ........................................................62 Olsen v. County of Nassau, 2010 U.S. Dist. LEXIS 5915 (E.D.N.Y. Jan. 26, 2010) ......................................................................................61 Peck v. New York State Division of Housing and Community Renewal, 188 A.D.2d 327, 590 N.Y.S.2d 498 (1st Dept. 1992) ................... 11, 24 Pirro v. Angiolillo, 89 N.Y.2d 351, 653 N.Y.S.2d 237 (1996) ...............................37 Reiter v. Metropolitan Transportation Authority of New York, 2007 U.S. Dist. LEXIS 71008 (S.D.N.Y. Sept. 25, 2007) ...................................61 Riley v. County of Broome, 95 N.Y.2d 455, 719 N.Y.S.2d 623 (2000) ............................................................................................................. 36, 38 Rivers v. Corron, 222 A.D.2d 863, 635 N.Y.S.2d 722 (3d Dept. 1995) .....................................................................................................................11 Rozell v. Ross-Holst, 576 F. Supp. 2d 527 (S.D.N.Y 2008) ....................................61 Schaffer v. Evans, 57 N.Y.2d 992, 457 N.Y.S.2d 237 (1982) .......................... 19, 20 Scibilia v. Regan, 199 A.D.2d 736, 605 N.Y.S.2d 444 (3d Dept. 1993) .....................................................................................................................11 Sigety v. Ingraham, 29 N.Y.2d 110, 324 N.Y.S.2d 10 (1971).................................46 -vii- Skold v. American International Group, Inc., 1999 WL 405539 (S.D.N.Y 1999) .....................................................................................................62 Stratton v. Department for the Aging for the City of New York, 1996 WL 352909 (S.D.N.Y. 1996) ......................................................................61 Sutka v. Conners, 73 N.Y.2d 395, 541 N.Y.S.2d 191 (1989) ........................... 35, 37 Tompkins v. Hunter, 149 N.Y. 117 (1896) ..............................................................14 Villescas v. Richardson, 145 F. Supp.2d 1228 (D. Colo. 2001) ................. 65, 66, 67 Wittlinger v. Wing, 99 N.Y.2d 425, 757 N.Y.S.2d 234 (2003) .................. 10, 30, 35 Statutes 28 U.S.C. § 2412(b) .................................................................................................66 28 U.S.C. § 2412(d) .................................................................................................10 28 U.S.C. § 2412(d)(1)(A) .......................................................................................28 42 U.S.C. § 1988 ......................................................................................................16 97 N.Y. Jur. Statutes § 191 ......................................................................................23 CPLR § 5602(d) ......................................................................................................... 1 CPLR § 8600 ..................................................................................................... 10, 28 CPLR § 8601(a) ............................................................................................ 9, 25, 29 CPLR § 8602(a) .............................................................. 9, 11, 13, 17, 24, 27, 29, 42 CPLR § 8602(b) ................................................................................................ 13, 26 CPLR § 8602(d) .......................................................................................................22 CPLR § 8602(e) ................................................................................................ 13, 26 CPLR § 8604 ............................................................................................................62 N.Y. Civ. Serv. Law § 80(7) ....................................................................................16 -viii- New York Executive Law § 296 ..............................................................................30 NY Ct. Claims Act § 9, subd 2 ................................................................................19 NY Ct. Claims Act § 9, subd 4 ................................................................................19 Other Authorities 1-32 Weinstein, Korn & Miller, CPLR Manual § 32.01 .........................................14 Ballantine's Law Dictionary (3rd ed. 1969), at 686 .................................... 13, 51, 56 Black's Law Dictionary (8th ed. 2004), at 864 ........................................... 13, 51, 56 McKinney's Consolidated Laws of NY, Book 1, Statutes § 97 ...............................35 -ix- QUESTIONS PRESENTED 1. Does CPLR Article 86 by its terms apply not only to actions seeking judicial review but also to plenary actions brought under the Human Rights Law seeking compensatory damages? The Appellate Division erroneously answered in the affirmative 2. Does the legislative history of CPLR Article 86 confirm that the statute does not apply to plenary actions brought under the Human Rights Law seeking compensatory damages? The Appellate Division erroneously answered in the negative. STATEMENT OF JURISDICTION This appeal is taken by the Appellants-Defendants State of New York and New York State Division of State Police (the "State Police Defendants") as of right pursuant to CPLR § 5602(d). Specifically, the State Police Defendants have appealed both the Fourth Department Appellate Division's Decision and Order entered March 28, 2014 and the Hon. Evelyn Frazee, J.S.C.'s subsequent Final Order Regarding Attorneys' Fees and Costs entered July 14, 2014, thus bringing up for review the Appellate Division's Decision and Order entered June 18, 2010, which affected the final judgment in this action by holding, with two justices dissenting, that Article 86 of the CPLR, the State Equal Access to Justice Act (the "EAJA" or "Article 86"), applies to a civil action seeking millions of dollars in compensatory damages for alleged violations of New York Executive Law Article 15 (the "Human Rights Law"). A Notice of Appeal of the March 28, 2014 Decision and Order of the Appellate Division as served on March 31, 2014 was filed on April 25, 2014 (A- 1038-1040) 1 and subsequently amended on April 29, 2014 (A-1035-1037); a Notice of Appeal of Judge Frazee's July 14, 2014 final order as served by regular mail on July 29, 2014 was filed on August 6, 2014 (A-1032-1034). 1 All references to the Appendix submitted herewith will be preceded by the abbreviation "A." -2- PRELIMINARY STATEMENT This brief is submitted by the State Police Defendants in support of their appeal seeking reversal of the Decision and Order of the Appellate Division, Fourth Department, entered June 18, 2010 reversing Monroe County Supreme Court Judge Evelyn Frazee's order entered May 18, 2009 correctly holding Article 86 inapplicable to this case. In so reversing the trial court, the Appellate Division held that Article 86 – which by its terms and consistent with its legislative history applies solely to civil actions "seeking judicial review" – applies also to the plenary action brought by Respondent-Plaintiff Betty Kimmel ("Kimmel") seeking millions of dollars in compensatory damages against her employer, the State of New York (the "State"), arising out of certain employment-related conduct of the State Police Defendants. This was clear legal error, requiring reversal of the Appellate Division's holding that Article 86 applies to actions seeking compensatory damages under the Human Rights Law. While the EAJA does allow a prevailing party in "certain actions" against the State to recover an award of attorneys' fees, this is not such an "action," a term which is expressly defined and limited by the statute to include only actions and proceedings seeking "judicial review" of state action. To construe Article 86 as Kimmel and her former attorney, Respondent-Intervenor Emmelyn -3- Logan-Baldwin ("Logan-Baldwin") contend and the Appellate Division majority found, would be to make the State the only New York employer liable for attorneys' fees in Human Rights Law cases − a result suggested neither in the language of the statute itself, nor in its legislative history, nor in the 70-plus cases applying and construing it. Moreover, to award attorneys' fees in a case such as this, where the potential money damages were so great that Kimmel was able to retain not one but two attorneys to represent her, would run afoul of the purpose and intent of Article 86, which is to provide an incentive to those without the financial means to seek judicial review of an unlawful agency action. There is simply no basis in law to award Article 86 fees in the type of case now before the Court, as the majority of the Appellate Division erroneously did when it ignored not only the language of the statute and its legislative history and intent but also multiple well-established tenets of statutory construction. For these reasons, which are discussed in greater detail below, the Appellate Division's Decision and Order holding that the EAJA applies to this and other cases against the State seeking compensatory damages for employment-related conduct allegedly in violation of the Human Rights Law should be reversed, the fee applications of Kimmel and Logan-Baldwin dismissed with prejudice, and all subsequent orders in this case accordingly reversed and/or modified to the extent -4- necessary to correct the Appellate Division's erroneous determination as to the applicability of Article 86. NATURE OF THE CASE Kimmel, a former New York State Trooper, commenced this action in 1995 for various alleged violations of the Human Rights Law. Specifically, she alleged that from 1979 to 1994 she was (1) subjected to an assault and various acts of sexual discrimination, sexual harassment, and retaliation and (2) otherwise exposed to a hostile work environment. (See generally, A-21-52). Kimmel sought damages against the State Police Defendants in the total amount of $15,000,000, $10,000,000 of which were compensatory and the other $5,000,000 punitive. (A- 51). The Appellate Division, by order entered on September 28, 2001 modifying the trial court's refusal to do so, struck the answer of the State Police Defendants and judgment was subsequently entered in favor of Kimmel on the issue of liability. Kimmel v. State of New York, 286 A.D.2d 881, 730 N.Y.S. 648 (4th Dept. 2001) (A-295-296, 215-218). After a trial on the issue of damages, on July 24, 2006 a jury awarded Kimmel (1) past lost actual earnings of $160,000, (2) past lost retirement earnings of $60,000, (3) future lost retirement earnings of $491,000, and (4) past pain and suffering of $87,000, for a total of $798,000 in compensatory -5- damages. (A-135-137). Significantly, no relief other than these compensatory damages was awarded to Kimmel. Id. Judgment was entered against the State Police Defendants on March 26, 2007 (id.) and was subsequently affirmed by the Appellate Division on March 14, 2008. (A-141-142). The State Police Defendants then sought leave to appeal to this Court, which application was dismissed on August 28, 2008 on the grounds that the judgment did not finally determine the action. (A-138). Thereafter, on September 23, 2008 Kimmel brought an application for attorneys' fees pursuant to Article 86 seeking $324,833 in fees and $17,066.58 in costs, as well as the attorneys' fees and costs associated with that application. (A- 297). Logan-Baldwin followed suit, bringing a separate application for Article 86 attorneys' fees on September 29, 2008 seeking fees and expenses of $836,267.51. (A-657). Kimmel and Logan-Baldwin together thus sought over $1,000,000 in attorneys' fees and costs from the State Police Defendants in that initial application, plus sought fees and costs since that time. Judge Frazee heard argument on the two motions for attorneys' fees on December 18, 2008. (A-9-13). The trial court issued a decision on March 27, 2009 correctly denying both motions on the grounds that Article 86 did not apply to civil actions brought under the Human Rights Law seeking compensatory -6- damages rather than judicial review of state action. (A-14-17). That decision was reduced to an order, entered on May 18, 2009 (A-9-13), which was subsequently appealed by Kimmel and Logan-Baldwin (A-7, 18). On June 18, 2010, the Appellate Division reversed the trial court's order, with two justices dissenting, finding that the EAJA applied to all civil actions brought against the State, including those like the one here seeking compensatory damages under the Human Rights Law for alleged acts of discrimination and sexual harassment by the State as employer, irrespective of whether any "judicial review" was sought. Kimmel v. State of New York, 76 A.D.3d 188, 906 N.Y.S.2d 403 (4th Dept. 2010) (A-1054-1065). The two dissenters, however, agreed with Judge Frazee and concluded that both the language of the EAJA and its legislative history evinced a clear intent on the part of the Legislature to limit the scope and applicability of Article 86 to only those "action[s] that involved review of an administrative action of the State." Id. at 201, 906 N.Y.S.2d 413 (A-1064). The State Police Defendants sought leave to appeal the Decision and Order to the Court of Appeals, which was denied by the Appellate Division on October 1, 2010. The action was remanded by the Appellate Division to Judge Frazee to determine whether Kimmel and Logan-Baldwin satisfied the other requirements of the EAJA and, if so, the amount of costs and fees to which they were entitled under -7- the statute. Kimmel, supra, 76 A.D.3d at 198, 906 N.Y.S.2d at 410 (A-1062). The parties subsequently resolved all issues pertaining to the amount of – but not the entitlement to – the costs and fees incurred by Kimmel and Logan-Baldwin and briefed the remaining issue before the trial court of whether Kimmel was an eligible "party" under the statute (i.e., whether she had a net worth of less than $50,000 at the time she commenced the action). (A-1066-1080). Judge Frazee, by order entered June 17, 2013, found that Kimmel satisfied the net worth eligibility requirement of the EAJA. (A-1066-1069). The Appellate Division affirmed Judge Frazee's June 17, 2013 order by Decision and Order entered on March 28, 2014 (Kimmel v. State of New York, 115 A.D.3d 1323, 983 N.Y.S.2d 177 (4th Dept. 2014) (A.1050-1052)), and remanded the case to the trial court for a final determination as to the amount of the costs and fees incurred by Kimmel and Logan-Baldwin in connection with the appeal. Id. The State Police Defendants timely filed a Notice of Appeal of the Appellate Division's March 28, 2014 Decision and Order on April 25, 2014 and an Amended Notice of Appeal on April 29, 2014. (A-1035-1040). The State Police Defendants then timely submitted their Preliminary Appeal Statement on May 6, 2014. Although a jurisdictional issue was subsequently raised by the Court as to whether the March 28, 2014 Decision and Order was "final" in view of the Fourth -8- Department's remand for a quantification of additional fees, since that time the parties resolved all outstanding issues regarding the amount of – but not the entitlement to – costs and fees incurred by Kimmel and Logan-Baldwin. (A-1041- 1049). Judge Frazee thereupon issued her Final Order Regarding Attorneys' Fees and Costs on July 14, 2014, which was subsequently entered on July 25, 2014. (A- 1041). That order provides for an award of $319,996.94 to plaintiff's counsel Harriet Zunno and $497,624.09 to plaintiff's former counsel Emmelyn Logan- Baldwin, for a total award of $817,620.98. Id. A Notice of Appeal of that final order was filed on August 6, 2014 (A-1032-1034), followed by the filing of a Preliminary Appeal Statement on August 14, 2014. This appeal by the State Police Defendants is limited to the discrete question of whether the EAJA applies to a civil action brought by a State employee seeking millions of dollars in compensatory damages against her employer, the State, under the Human Rights Law, as distinguished from a civil action seeking judicial review of state agency action. The State Police Defendants seek an order from this Court reversing the Appellate Division's June 18, 2010 Decision and Order and all subsequent orders affected by the Appellate Division's holding, including the March 28, 2014 Decision and Order of the Appellate Division and Judge Frazee's July 14, 2014 final order, on the grounds that the EAJA applies only to actions -9- seeking judicial review of state agency rulings, regulations and procedures and not actions seeking compensatory damages under the Human Rights Law. ARGUMENT The EAJA, titled "Counsel Fees and Expenses in Certain Actions Against the State" (emphasis added), provides that: [E]xcept 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). Section 8602(a) then goes on to prescribe what those "certain" actions are. In particular, "action" is defined under the EAJA as: [A]ny 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. CPLR § 8602(a) (emphasis added). From this definition, as well as relevant legislative history (as discussed herein at Point IV, infra), it is clear that the EAJA is limited exclusively – as it says – to actions which involve judicial review of actions of the State and does not extend to actions seeking millions of dollars in -10- compensatory damages for alleged sexual harassment and discrimination under the Human Rights Law. The EAJA was enacted in 1989 as an experimental provision (L 1989, ch 770, § 1), after the Governor had vetoed four prior bills that he deemed too broad in scope and applicability, and was subsequently adopted and codified in 1990 with the express intent to create a mechanism authorizing 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) and the significant body of case law that has evolved thereunder. CPLR § 8600 (emphasis added). The statute was, according to this Court in Wittlinger v. Wing, 99 N.Y.2d 425, 757 N.Y.S.2d 234 (2003), "enacted … to help litigants secure legal assistance to contest wrongful actions of state agencies" so as to allow "those whose rights have been violated[,] but whose potential damage awards may not have been enough to induce lawyers to fight City Hall[,]" to seek redress. See id. at 431, 757 N.Y.S.2d at 237 (quotation in original; emphasis added) (awarding fees to a plaintiff who prevailed in challenging the department of social services' termination of his public assistance benefits). This right, as the Court noted, is not unlimited, as "[t]he Legislature … did not intend to provide every plaintiff − or even every 'prevailing' plaintiff − with attorneys' fees." Id. -11- New York courts are obviously restricted in how they construe Article 86, as they must be careful not to read into the statute a benefit that the Legislature did not intend to provide. It is fundamental that, unless otherwise provided by statute, it is the "usual rule in this country that each party is to bear the expense of his own attorney." Hanrahan v. Hampton, 446 U.S. 754, 758, 100 S. Ct. 1987, 1989 (1980), rehearing denied, 448 U.S. 913, 101 S. Ct. 33 (1980). Since Article 86 is a statute "in derogation of common law in that it shifts to the State the obligation for the payment of counsel fees in limited circumstances[,]" the statute must "be strictly construed." Peck v. New York State Division of Housing and Community Renewal, 188 A.D.2d 327, 327, 590 N.Y.S.2d 498, 498 (1st Dept. 1992); see also, Lee v. Higgins, 213 A.D.2d 553, 624 N.Y.S.2d 49 (2d Dept. 1995), Rivers v. Corron, 222 A.D.2d 863, 635 N.Y.S.2d 722 (3d Dept. 1995), and Scibilia v. Regan, 199 A.D.2d 736, 605 N.Y.S.2d 444 (3d Dept. 1993). Notwithstanding the requirement of strict construction and the fact that Article 86 applies only to actions seeking "judicial review of an action of the state" (CPLR § 8602(a)) and not those seeking compensatory damages, the Appellate Division ignored the express language used in the statute and its legislative history – both of which clearly limit the scope and applicability of the EAJA to those actions seeking "judicial review" of agency determinations – by holding that Article 86 extended to the case at bar. As discussed below, the Appellate Division -12- erred in not only concluding that Article 86 unequivocally applied to this case by its language, but also in dismissing its legislative history as immaterial. The Court should therefore reverse the Appellate Division and find, as a matter of law, that Article 86 – by its express language, stated intent, statutory construct and legislative history – applies only to actions seeking judicial review of an administrative action of the State and not an action where the plaintiff seeks compensatory damages against the State as employer for alleged acts of discrimination and harassment in violation of the Human Rights Law. I. Article 86 By Its Express Terms Applies Only to Actions Seeking "Judicial Review" of State Agency Action and Not Plenary Actions Seeking Compensatory Damages. A. The Term "Judicial Review" in the EAJA Is Clear and Unambiguous. The Appellate Division, in reversing the trial court's denial of Kimmel's and Logan-Baldwin's fee applications brought pursuant to Article 86, held that the legislative history of the statute was immaterial to the outcome herein because the words of the statute are clear and unambiguously apply to all civil actions regardless of their object. Kimmel, supra, 76 A.D.3d at 191, 906 N.Y.S.2d at 405. (A-1056). While the State Police Defendants vigorously contest the Appellate Division's conclusion that the language in the EAJA clearly -13- applies to this action, they nevertheless agree that the language most pertinent to the issue on appeal is not only clear and unambiguous but, contrary to the Appellate Division's conclusion, clearly and unambiguously forecloses an award of attorneys' fees herein. Specifically, CPLR § 8602(a) directs that the EAJA applies only to actions or proceedings "seeking judicial review of an action of the state." Emphasis added; see also, CPLR § 8602(b) (defining the "fees and expenses" recoverable under the EAJA as those "incurred in connection with an administrative proceeding and judicial action") (emphasis added) and CPLR § 8602(e) (defining the term "position of the state" to "mean[] the act, acts or failures to act from which judicial review is sought") (emphasis added). That command is clear and unambiguous. The term "judicial review" is a well-defined term of art in the law, meaning "[a] court's review of a lower court's or an administrative body's factual or legal findings." Black's Law Dictionary (8th ed. 2004), at 864; see also, Ballantine's Law Dictionary (3rd ed. 1969), at 686 (defining "judicial review" as "[t]he review of administrative action by an action or proceeding in court" (emphasis added)). There is, of course, a limited universe of actions and proceedings that "seek judicial review of an action of the state"; that universe consists of Article 78 proceedings, actions seeking declaratory relief pertaining to state agency rulings, regulations and/or procedures, and actions seeking injunctive relief prohibiting a -14- state agency from enforcing the same. See, 1-32 Weinstein, Korn & Miller, CPLR Manual § 32.01 ("Article 78 is not the exclusive method available for the review of official action. Actions for declaratory judgment and injunction and taxpayers' actions afford remedies that in some instances overlap with Article 78 and in some instances may afford review unavailable under Article 78."). There can thus be little doubt that Article 86, which expressly applies only to those actions and proceedings seeking "judicial review" of state action, does not apply to a plenary action seeking millions of dollars in compensatory damages for state officials' alleged violations of the Human Rights Law. Indeed, the Appellate Division majority itself recognized that "[i]f the [statutory] language employed has 'a definite meaning, which involves no absurdity or contradiction, there is no room for construction and courts have no right to add or take away from that meaning'." Kimmel, supra, 76 A.D.3d at 194, 906 N.Y.S.2d at 407. (A-1058 (quoting Tompkins v. Hunter, 149 N.Y. 117, 123 (1896) (emphasis omitted)). Here, of course, and as noted above, the term "judicial review" does have a "definite meaning": review by the judiciary of administrative action. Accordingly, the Appellate Division had no right to expand the sweep of the statute to cases, like this one, not involving judicial review, and in the process ignoring this time-honored principle of statutory construction which the Court itself extolled – thereby engaging in the very "legislat[ion] under the guise of -15- interpretation" the Court elsewhere condemned. Kimmel, supra, 76 A.D.3d at 196, 906 N.Y.S.2d at 409. (A-1058 (quoting Bright Homes v. Wright, 8 N.Y.2d 157, 162, 203 N.Y.S.2d 67, 70 (1960)). For this reason alone, the Court should reverse the Appellate Division's determination and hold that Article 86 applies only to those actions seeking judicial review of an administrative action of the State and not to actions – like the one at bar – where the plaintiff seeks compensatory damages for alleged violations of the Human Rights Law. B. Case Law Applying Article 86 Confirms that Article 86's Use of the Term "Judicial Review" Limits Its Scope and Applicability to Article 78 and Other Like Proceedings. With the exception of the Appellate Division Decision and Order which is the subject of this appeal, New York case law has, consistent with the intent of the Legislature in enacting the EAJA (see, infra, at Point IV), uniformly applied Article 86 only in Article 78-like proceedings. Indeed, as noted by the dissent in the subject Appellate Division Decision and Order, there have been over 70 published cases which address the question of awarding attorneys' fees under Article 86 since it was enacted. Kimmel, supra, 76 A.D.3d at 199, 906 N.Y.S.2d at 44. (A-1062). Of these cases, the vast majority explicitly involved judicial review, -16- either at the Supreme Court or Appellate Division level, in an Article 78 proceeding. Of the remaining few cases, one was based upon a claim for attorneys' fees under 42 U.S.C. § 1988 where the underlying cause of action originated from the distribution of condoms to school-age children (Alfonso v. Fernandez, 167 Misc. 2d 793, 635 N.Y.S.2d 932 (Richmond Co. Sup. Ct. 1995)); one arose under N.Y. Civ. Serv. Law § 80(7) regarding down-grading in job title of state employees (Dachenhausen v. Crosson, 154 Misc. 2d 132, 585 N.Y.S.2d 281 (Nassau Co. Sup. Ct. 1992)); one involved review of an IAS court decision denying attorneys' fees to petitioner-landlord in a mandamus proceeding (2421 Realty Co. v. New York State Division of Housing and Community Renewal, 193 A.D.2d 571, 598 N.Y.S.2d 213 (1st Dept. 1993), appeal dismissed, 82 N.Y.2d 802, 604 N.Y.S.2d 559 (1993)); one addressed which assets should be included in the calculation of net worth under CPLR Article 86 (Hickey v. Sinnott, 179 Misc. 2d 573, 685 N.Y.S.2d 578 (Albany Co. Sup. Ct. 1998)); one involved the review of the Commissioner of Health's denial of a hearing to the petitioner (Matter of Walker v. Novello, 36 A.D.3d 1100, 828 N.Y.S.2d 656 (3d Dept. 2007)); and the last case was a class action challenging the New York City Department of Social Services emergency housing policy for persons infected with HIV/AIDS (Hernandez v. Hammons, 98 N.Y.2d 735, 750 N.Y.S.2d 813 (2002)). In all of these cases, attorneys' fees, where -17- granted, were premised on civil actions or proceedings that sought judicial review of administrative actions, and the principal relief sought was either injunctive or declaratory in nature. None of the cases indicate, either expressly or implicitly, that Article 86 attorneys' fees should be awarded in cases seeking compensatory damages for state agency officials' alleged discriminatory or harassing conduct in violation of the Human Rights Law; that, of course, is because such actions do not involve any "judicial review" of state agency action. Not only do the aforementioned published cases confirm that Article 86's natural construction is limited to those situations where a plaintiff/petitioner seeks judicial review of administrative actions, but no unpublished cases are known to have awarded Article 86 fees in an action seeking compensatory damages either; rather, they all involve actions seeking judicial review of administrative rulings, regulations, and procedures. This is because Article 86, by its very language, applies only to actions brought to "seek judicial review" of an action of the State, not to actions that seek millions of dollars in compensatory damages for the tortious and/or wrongful acts of state agencies and their employees. CPLR § 8602(a); see also, A-1062 (Appellate Division dissent "conclud[ing] that, in drafting the EAJA, the Legislature intended that attorneys' fees and expenses be sought only in civil actions that involve the review of the actions of the State that -18- are administrative in nature"). Kimmel, supra, 76 A.D.3d at 199, 906 N.Y.S.2d at 411. It is therefore clear that no textual support exists for the Appellate Division's conclusion that Article 86 applies to actions seeking millions of dollars in compensatory damages. The Court should therefore reverse the Appellate Division and affirm the trial court's original determination denying Kimmel's and Logan- Baldwin's respective applications for attorneys' fees. C. The Court of Claims Exclusion in Article 86 Further Confirms that It Applies Only to Article 78 and Other Like Proceedings and Not Plenary Actions Seeking Compensatory Damages. The Appellate Division erroneously concluded that the trial court's interpretation of the EAJA would render the Court of Claims exclusion "unnecessary." Kimmel, supra, 76 A.D.3d at 192, 906 N.Y.S.2d at 406 (A-1056, 1057). According to the Appellate Division, there is no need for a Court of Claims exclusion if the EAJA may only be applied to Article 78 proceedings and actions for declaratory and/or injunctive relief because the Court of Claims does not have jurisdiction to hear either Article 78 proceedings or actions for declaratory relief. Id. The Appellate Division, however, missed the point of the Court of Claims exclusion generally and how it relates to Article 86 specifically. -19- The Court of Claims has jurisdiction "[t]o hear and determine a claim of any person … against the state … for the torts of its officers or employees while acting as such officers or employees." NY Ct. Claims Act § 9, subd 2. Additionally, it is within the jurisdiction of the Court of Claims to award money damages to claimants against the state. NY Ct. Claims Act § 9, subd 4; see also, Schaffer v. Evans, 57 N.Y.2d 992, 994, 457 N.Y.S.2d 237, 238 (1982) ("We agree with the Appellate Division that plaintiff's causes of action against the State officials are primarily claims against the State for money damages and as such could only be entertained in the Court of Claims"). Thus, the Court of Claims exclusion in Article 86 simply confirms that the statute does not apply to the claims for monetary damages typically brought there. However, in cases involving the Human Rights Law, both the Supreme Court and the Court of Claims have concurrent jurisdiction so that the plaintiff need only bring one suit to "fully redress the wrong committed." Koerner v. State of New York, 62 N.Y.2d 442, 449, 478 N.Y.S.2d 584, 587 (1984) (noting the Court of Claims cannot order such equitable relief as reinstatement); see also, Clancy v. State of New York, 126 Misc. 2d 292, 294, 481 N.Y.S.2d 943, 946 (Ct. Cl. 1984) (stating, in an action brought under the Human Rights Law, "since claimant herein is only seeking monetary damage against the State, and not attendant equitable relief, it is evident that the Court of Claims has concurrent jurisdiction over this -20- statutorily created cause of action"). While Kimmel may have originally sought reinstatement in addition to compensatory damages, thus bringing this case outside of Court of Claims jurisdiction and within Supreme Court jurisdiction (A-49-51), she abandoned the reinstatement claim long before the case went to trial (and therefore was not a "prevailing party" on that claim). Indeed, the only relief Kimmel sought at trial was the millions of dollars in compensatory damages she asked for from the jury. See, A-135-137 (granting judgment to Kimmel for compensatory damages only). This fact is significant to the application for Article 86 attorneys' fees here. It is the nature of the claim, not merely the underlying cause of action, that determines whether a case is appropriate for the Court of Claims. See, Schaffer, supra, 57 N.Y.2d at 994, 457 N.Y.S.2d at 238 (affirming that "plaintiff's causes of action against the State officials are primarily claims against the State for money damages and as such could only be entertained in the Court of Claims."). In excluding actions brought in the Court of Claims from Article 86 attorneys' fees, the Legislature evinced an intent that forecloses an award of attorneys' fees where the principal relief sought is monetary damages; that is because a plaintiff in an action for money damages against the State already has ample financial incentive to commence and litigate a meritorious action, particularly where – as here – the potential damages are so great that the plaintiff is able to retain not one but two -21- attorneys to represent her. See, infra, at Point II. Leaving that fact aside, to now award Kimmel her attorneys' fees would result in the anomaly that a plaintiff asserting the very same claims against the State could recover attorneys' fees in one forum (Supreme Court) but not the other (Court of Claims), thus providing significant motivation and opportunity for a clever litigant to include equitable claims with questionable merit in a complaint so as to circumvent Court of Claims jurisdiction with the hope of reaping an Article 86 windfall not available in the Court of Claims. This clearly could not have been what the Legislature intended, and the record is devoid of even the suggestion of such legislative intent. While, as the Appellate Division majority correctly noted, the Court of Claims' jurisdiction is indeed "generally" limited to monetary claims (Kimmel, supra, 76 A.D.3d at 192, 906 N.Y.S.2d at 406 (A-1057)), it does have the power to grant equitable relief incidental to monetary awards. See, e.g., Gebman v. Pataki, 256 A.D.2d 854, 855, 681 N.Y.S.2d 701, 702 (3d Dept. 1998). Hardly meaningless (Kimmel, supra, 76 A.D.3d at 192, 906 N.Y.S.2d at 406 (A-1057)), the EAJA's Court of Claims exception thus serves the salutary purpose of ensuring that a case brought in the Court of Claims principally for monetary damages does not become eligible for an Article 86 award by virtue solely of any incidental judicial review presented thereby. -22- Underscoring this point is that attorneys' fees are not recoverable under the substantive statute under which Kimmel sued. See, Human Rights Law; see also, A-308 (Zunno Affirmation, at ¶ 29) (admitting that fees are not recoverable under the Human Rights Law). Thus, under the Appellate Division's holding, the State would be the only employer in the State required to pay attorneys' fees in Human Rights Law cases, and State employees the only employees entitled to recover them. Not only that, but it would only be (1) State employees (2) suing in Supreme Court (3) with a net worth of less than $50,000 (see, CPLR 8602(d)) who would be eligible for an Article 86 award from the State as their employer. There is absolutely no suggestion in the legislative history that the Legislature intended such anomalies in enacting Article 86. Indeed, everything in the legislative history strongly and clearly suggests that the Legislature had no such intent whatsoever. See, infra, at Point IV. Such an interpretation of Article 86 violates the established canon of statutory construction that legislation cannot be construed in such a way that leads to unreasonable and absurd results and, for this reason as well, warrants reversal of the Appellate Division's holding. See, Biancoviso v. City of New York, 285 A.D.320, 322-323, 37 N.Y.S.3d 773, 775 (2d Dept. 1955) ("Under the general rule of statutory construction, it is always presumed that no unjust or unreasonable result was intended by the Legislature 'and the statute, unless the language forbids, must be given an interpretation and application consonant with that -23- presumption.'"); see also, 97 N.Y. Jur. Statutes § 191 ("In construing a statute, each part of a statute is to be given meaning and be interpreted so as to avoid absurd results"). For these reasons, it is clear that the Appellate Division erred in concluding that Article 86 applies to actions seeking compensatory damages in addition to those seeking judicial review of agency rulings, regulations and procedures. D. The Appellate Division Violated Multiple Established Canons of Statutory Construction by Reading the Term "Judicial Review" and Other Like Language Out of the Statute to Hold that It Applies to Plenary Actions Seeking Compensatory Damages. The Appellate Division found, notwithstanding the fact that the term "judicial review" is limited by definition to situations involving the review of prior court and/or administrative proceedings (like Article 78 proceedings and actions for declaratory and/or injunctive relief, as the trial court found), that Article 86 applies to all actions irrespective of whether such actions seek judicial review because, "under a plain reading of the statute," the statute applies to "any civil action." Kimmel, supra, 76 A.D.3d at 192, 906 N.Y.S.2d at 406. (A-1056). This construction of the statute, however, effectively reads the term "seeking judicial review" out of Article 86's definition of "action" by allowing its application to any and all civil actions brought against the State outside of the Court of Claims -24- regardless of the relief sought. This the Appellate Division was not permitted to do. See, e.g., Peck, supra, 188 A.D.2d at 327, 590 N.Y.S.2d at 498 ("CPLR Art. 86 is in derogation of the common law in that it shifts to the State the obligation for the payment of counsel fees in limited circumstances and should therefore be strictly construed"). Moreover, such reasoning contradicts the Appellate Division's own expressions of statutory construction later in its same decision. Specifically, while failing to even acknowledge the clear and unmistakable language in Article 86 limiting its scope and application to those actions seeking "judicial review" of state action (CPLR § 8602(a)), the Appellate Division, in another context in the same decision, noted that "legislation is to be interpreted so as to give effect to every provision, and a construction that would render a provision superfluous is to be avoided." Kimmel, supra, 76 A.D.3d at 192, 906 N.Y.S.2d at 406 (A-1057); see also, Cohen v. Lord, Day & Lord, 75 N.Y.2d 95, 100, 551 N.Y.S.2d 157, 159 (1989) ("Words are not to be rejected as superfluous where it is practicable to give each a distinct and separate meaning"). Notwithstanding this statement of statutory construction (which the State Police Defendants do not dispute), the Appellate Division did exactly what it forbade by reading the term "judicial review" completely out of the statute so as to extend Article 86 to civil actions seeking only -25- compensatory damages under the Human Rights Law and not any "judicial review" of an agency determination. This disregard of statutory language was not an isolated incident. The majority of the Appellate Division (but not the dissent (Kimmel, supra, 76 A.D.3d at 198-201, 906 N.Y.S.2d at 411-413; see, A-1062-1064)) ignored other important language embodied throughout Article 86 to reach its conclusion that the statute applies to all actions, including plenary actions seeking compensatory damages. Another example of the Appellate Division ignoring critical language in the EAJA that did not fit its narrative is Article 86's exception from fee awards for positions of the State that are "substantially justified." Specifically, under CPLR § 8601(a), in making a "substantial justification" determination, a court passing upon the acts as to which Article 86 fees are sought is confined to the "record before the agency or official whose act, acts, or failure to act gave rise to the civil action." The "record before the agency or official" whose acts are being challenged is, of course, a basic ingredient of Article 78 and similar proceedings and/or actions reviewing agency determinations or enforcement actions − and, conversely, an ingredient wholly lacking in plenary actions seeking only monetary damages (and thus lacking here). -26- Moreover, the statute goes on to specifically define the terms (1) "[p]osition of the state" for purposes of the "substantial justification" defense as an "act, acts or failure to act from which judicial review is sought" (CPLR § 8602(e) (emphasis added)) and (2) "[f]ees and other expenses" awardable under Article 86 as those "… incurred in connection with an administrative proceeding and judicial action" (CPLR § 8602(b) (emphasis added)). Thus, like the definition of "action," Article 86, in explaining the "substantial justification" defense and delimiting the fees and expenses recoverable, makes clear that it applies only to actions seeking judicial review of administrative actions of the State. The Appellate Division, however, completely omitted these scope-defining imperatives from its analysis, treating them as if they did not exist. This was clear legal error. For these reasons, the Court should reverse the Appellate Division's findings and hold that Article 86 applies only to actions seeking "judicial review" of state action and not plenary actions seeking compensatory damages. E. The Appellate Division's Purported Basis for Concluding that Article 86 Applies to All Civil Actions Is Flawed. The purported basis for the Appellate Division's conclusion that Article 86 applies to each and every type of civil action brought outside the Court of Claims, even in the face of the legislature's choice of the term of art "judicial review" to limit the scope and applicability of the statute, is that (1) the statute lists only two -27- statutory exceptions, neither of which applies to an action brought under the Human Rights Law (Kimmel, supra, 76 A.D.3d at 192, 906 N.Y.S.2d at 406) (A- 1056-1057), and (2) the federal EAJA, on which Article 86 is, to a certain extent, modeled, "is not limited to proceedings brought to review administrative determinations." Id. at 192, 006 N.Y.S.2d at 407. (A-1057). Neither of these arguments, however, support the Appellate Division's conclusion that Article 86 applies to civil actions which do not seek "judicial review of an action of the state." With respect to the Appellate Division's reasoning that an action brought pursuant to the Human Rights Law does not fall within either of the two exceptions to Article 86, namely actions brought in the Court of Claims or pursuant to a statute under which fees are already recoverable, the Appellate Division failed to grasp the fact that an action brought under the Human Rights Law need not expressly fall within one of the two exceptions because such an action is not one "seeking judicial review of an action of the state" in the first place and is thus outside the scope of the statute. CPLR § 8602(a). This definition of the term "action" in the EAJA significantly limits the scope of Article 86 to only those actions seeking review of agency determinations and proceedings and precludes a finding that it applies to cases where the plaintiff seeks a jury verdict for compensatory damages. -28- The Appellate Division's other basis for concluding that Article 86 applies to all actions against the State brought outside the Court of Claims is similarly misplaced. While Article 86 was indeed intended to be "similar" to the federal EAJA in certain respects (see CPLR § 8600 (noting that Article 86 is "similar" to the federal EAJA)), it is clear, from both the statutory language used and the legislative history discussed herein, that Article 86 is far narrower in scope than its federal counterpart. For example, in looking to the federal EAJA to support it conclusion that Article 86 is not limited to actions seeking review of administrative determinations, the Appellate Division quoted the federal EAJA, as follows: [E]xcept as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses incurred by that party in any civil action (other than actions sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States. Kimmel, supra, 76 A.D.3d at 193, 906 N.Y.S.2d at 407 (A-1057) (quoting 28 U.S.C. 2412(d)(1)(A)) (emphasis added). However, rather than support the Appellate Division's conclusion, such language actually shows Article 86's clear departure from its federal counterpart. While the federal EAJA applies to "any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action" (id. (emphasis added)), Article 86 expressly restricts and -29- limits its application to only those "civil action[s] or proceeding[s] brought to seek judicial review of any action of the state." CPLR §§ 8602(a) and 8601(a). Under the Federal EAJA, then, "proceedings for judicial review of an agency action" are a subset of the actions in which attorneys' fees are recoverable, whereas under the State EAJA proceedings which seek "judicial review of any action of the state" are the entire universe of cases in which attorneys' fees may be recovered. The Appellate Division's reliance on the federal EAJA in this respect was thus clear legal error and does not, in any way, support its erroneous conclusion that Article 86 applies to a civil action seeking only compensatory damages rather than judicial review of state action. It is thus clear that the Appellate Division's rationale for concluding that Article 86 applies to all civil actions is fatally flawed and legally unsupported. This Court should therefore reverse and hold that Article 86 applies only to actions seeking "judicial review" of state administrative action and not plenary actions seeking compensatory damages. II. The Stated Purpose of Article 86 to Provide Equal Access to the Courts Is Not Implicated at Bar Because Kimmel Already Had Ample Incentive and Opportunity to Pursue Her Claims. Kimmel brought suit against the State Police Defendants seeking millions of dollars in compensatory damages for acts of sexual harassment and discrimination -30- in violation of New York Executive Law § 296 and the New York Civil Rights Law. Neither of these statutes allow for an award of attorneys' fees. Kimmel, however, sought damages of several million dollars and, after a jury trial, obtained a judgment of $798,000, providing ample incentive to pursue her claims even absent a fee award (thus failing to implicate Article 86's concerns). See, Wittlinger, supra, 99 N.Y.2d at 431, 757 N.Y.S.2d at 237 (stating that Article 86 was "enacted … to help litigants secure legal assistance to contest wrongful actions of state agencies" to allow "those whose rights have been violated[,] but whose potential damage awards may not have been enough to induce lawyers to fight City Hall[,]" to seek redress). It would be a contradiction of both public policy and legislative intent to award attorneys' fees to Kimmel or Logan-Baldwin in this case where (1) the substantive statute did not contemplate such relief in an area of law (employment discrimination) where attorneys' fees provisions are common yet the Legislature has chosen not to allow for them, (2) not only were the damages sought so great that a lawyer would not be deterred from taking the case, but Kimmel was able to find two lawyers to do so on a contingency basis (A-171-176), and (3) Kimmel sought a jury trial on, not judicial review of, alleged acts of sexual discrimination and harassment of a State agency and its employees. As discussed further below, the express language of Article 86, as well as the relevant legislative history from -31- the 1982, 1983, 1984, and 1986 drafts of the bill, and the final bill that was codified in 1990 as Article 86 of the CPLR (see, infra, at Point IV), limits Article 86 attorneys' fees to those situations where a plaintiff/petitioner has little incentive to seek judicial review of agency rulings or regulations because the costs associated with making such a challenge exceed any recovery that the plaintiff/petitioner could hope to achieve. It is incontrovertible that Kimmel, as well as the two attorneys who worked the case on her behalf, had plenty of incentive to challenge the postulated "agency action" at issue here. Since Article 86, by its very language and underlying legislative history (see, infra, at Point IV), applies only to situations where a plaintiff/petitioner needs to be incentivized to seek judicial review of State agency action, the Court should reverse the Appellate Division and affirm the trial court's original determination denying Kimmel's and Logan-Baldwin's respective applications for attorneys' fees under the EAJA. III. The Dissenters at the Appellate Division Correctly Found that Article 86 Does Not Apply to Actions Under the Human Rights Law Seeking Compensatory Damages. The two dissenters at the Appellate Division, the Hon. Henry J. Scudder, P.J. and the Hon. Edward D. Carni, J., "conclude[d] that, in drafting the EAJA, the Legislature intended that attorneys' fees and expenses be sought only in civil -32- actions that involve the review of the actions of the State that are administrative in nature." Kimmel, supra, 76 A.D.3d at 199, 906 N.Y.S.2d at 411 (A-1062). The dissenting justices reached this conclusion by reviewing not only the language in the statute itself, including the definitions of "action," "position of the state" and "fees and other expenses," all of which limited the scope and application of Article 86 to those actions seeking "judicial review" of state agency action (as discussed above), but also the extensive legislative history explained below and a review of the 70-plus New York cases interpreting the EAJA, none of which have applied the statute to actions seeking compensatory damages. Id. (A-1062-1064). The dissenting justices' analysis and conclusion, as explained in greater detail below, is in all respects correct and should therefore be adopted by this Court. One point that the dissent seemingly took particular issue with was its sense that the majority, in construing Article 86 broadly and expanding its application beyond the intent of the Legislature, impermissibly substituted its own judgment as to what was equitable in this particular case for the will of the Legislature in drafting the statute. Id. (A-1062, 1064). Specifically, the dissent, both in its opening and final paragraphs, went out of its way to caution against construing the statute in a way that results in a seemingly equitable outcome instead of one consistent with the Legislature's intent. See, A-1062 ("Although we recognize that, under the unique circumstances of this case, an award of attorneys' fees and -33- expenses may be an equitable result, we nevertheless conclude that, in drafting the EAJA, the Legislature intended that attorneys' fees and expenses be sought only in civil actions that involve the review of the actions of the State that are administrative in nature"); Kimmel, supra, 76 A.D.3d at 198-199, 906 N.Y.S.2d at 411; see also, A-1064 ("In our view, the statutory context and the legislative history compel a conclusion that the Legislature intended that the EAJA would be utilized to seek attorneys' fees and expenses in an action that involved review of an administrative action of the State, and that is not the case here. We must 'apply the will of the Legislature and not our own perception of what might be equitable.'"). Kimmel, supra, 76 A.D.3d at 201, 906 N.Y.S.2d at 413. The implication of these statements is unmistakable: the majority's decision was, at least partly in the dissent's view, motivated by its desire to achieve perceived equity in this case at the expense of the now potentially limitless exposure to the State created by the expansion of the EAJA's scope to a new class of plaintiffs suing the State and its agencies in plenary actions seeking compensatory damages. Of course, it is unclear what exactly would be inequitable about confining plaintiffs' counsel, who assumed the risk of no recovery whatsoever, to one-third of a $721,511.42 judgment. (A-137). The dissent also took issue with the fact that the majority of the Appellate Division dismissed as irrelevant all of the statutory history pertaining to the prior -34- EAJA bills that were vetoed by the Governor in 1982, 1983, 1984, and 1986. Kimmel, supra, 76 A.D.3d at 194-195, 906 N.Y.S.2d at 4. See, A-1058 (majority concluding that "the text of the EAJA that was enacted into law in 1989 bears little resemblance to those prior versions" and that the prior bills were objected to by the Governor because they "ha[d] nothing to do with helping the poor gain access to the courts to redress wrongs"). The dissent noted (correctly) that all of "the substantive objections" of the Governor to the prior EAJA bills were directed primarily at the fact "that the EAJA would have an inhibitory effect on agencies in the performance of their statutory responsibilities; would shift to taxpayers the litigation costs of certain businesses; and would create a presumption that agencies and their employees were acting in an irresponsible fashion." Kimmel, supra, 76 A.D.3d at 200, 906 N.Y.S.2d at 412 (A-1063). It was only after those primary cost and related concerns were addressed in the 1989 bill, and specifically by the bill's sponsor, Assemblyman Robin Schimminger, that the Governor ultimately approved Article 86. Specifically, in his memorandum approving Article 86, the Governor stated: I believe that a program of providing recompense for the cost of correcting official error is highly desirable as long it is limited to helping those who need assistance, it does not deter State agencies from pursuing legitimate goals and contains adequate restraints on the amount of fees awarded. -35- Kimmel, supra, 76 A.D.3d at 201, 906 N.Y.S.2d at 413 (A-1064) (emphasis added). This statement, like the myriad other clear statements of statutory intent that are prevalent throughout the 1989 bill and all of the prior iterations of the EAJA, as well as the legislative history for each such bill, clearly limits the scope of the statute to those actions seeking to "correct[] official error" and otherwise challenge administrative actions (see, infra, at Point IV) and thus compelled the dissenters of the Appellate Division to conclude that "the Legislature intended that the EAJA be utilized to seek attorneys' fees and expenses [only] in an action that involved review of an administrative action of the State." Id. (A-1064). The dissenters thus correctly concluded that "when construing the EAJA as a whole, the 'spirit and purpose of the legislation,' as gleaned from the statutory context and legislative history, is to provide redress for litigants contesting the actions of the State in administrative matters." Kimmel, supra, 76 A.D.3d at 199, 906 N.Y.S.2d at 411 (A-1058 (citing McKinney's Consolidated Laws of NY, Book 1, Statutes § 97; Wittlinger, supra, 99 N.Y.2d at 431, 757 N.Y.S.2d at 257; quoting Sutka v. Conners, 73 N.Y.2d 395, 403, 541 N.Y.S.2d 191, 194 (1989)). That unmistakable legislative history is discussed next. -36- IV. The Legislative History Was Properly Considered by the Trial Court to Determine the Scope and Purpose of Article 86 and Compels the Conclusion that Article 86 Is Not Applicable Here. Even assuming arguendo that the language "any civil action or proceeding brought to seek judicial review of an action of the state" is somehow unambiguous and applies to all civil actions irrespective of whether they actually seek judicial review of anything or not (as the Appellate Division concluded), the Appellate Division nonetheless erred both when it declined to consider the legislative history of Article 86 and when it failed to recognize that that history clearly confines Article 86's scope to proceedings seeking judicial review of state administrative action. A. Legislative History Is Almost Always Relevant, and Is Certainly Relevant Here. The Appellate Division was permitted – indeed, required – to review the legislative history to determine the true intent of the legislature in drafting Article 86. See, Riley v. County of Broome, 95 N.Y.2d 455, 463-464, 719 N.Y.S.2d 623, 627 (2000) ("When aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no 'rule of law' which forbids its use, however clear the words may appear on 'superficial examination'") and (A-1062) (dissenters at Appellate Division correctly stating that "Legislative intent may be discerned from the face of a statute, but an apparent lack of ambiguity is rarely, if -37- ever, conclusive. Generally, inquiry must be made of the spirit and purpose of the legislation, which requires examination of the statutory context of the provision as well as its legislative history.'") Kimmel, supra, 76 A.D.3d at 199, 906 N.Y.S.2d at 411 (quoting Sutka, supra, 73 N.Y.2d at 403, 541 N.Y.S.2d at 194). Thus, even if the statutory language was just as the Appellate Division majority saw it, the legislative history still should have been at least consulted. See, Pirro v. Angiolillo, 89 N.Y.2d 351, 357, 653 N.Y.S.2d 237, 241 (1996) (holding that "[t]he letter of a statute is not to be slavishly followed when it leads away from the true intent and purpose of the Legislature"). Specifically, in concluding that the EAJA's legislative history should not have been considered by the trial court, the Appellate Division completely disregarded binding precedent from this Court which articulates the applicable rule of law as follows: We note at the outset that it is appropriate to examine the legislative history even though the language of [VTL] section 1103(b) is clear. The primary consideration of courts in interpreting a statute is to 'ascertain and give effect to the intention of the Legislature.' Of course, the words of the statute are the best evidence of the Legislature's intent. As a general rule, unambiguous language of a statute is alone determinative. Nevertheless, the legislative history of an enactment may also be relevant and 'is not to be ignored, even if words be clear.' 'When aid to construction of the meaning of words, as used in the statute, is available, -38- there certainly can be no 'rule of law' which forbids its use, however clear the words may appear on 'superficial examination' Pertinent also are 'the history of the times, the circumstances surrounding the statute's passage, and … attempted amendments.' Varying concerns may bear on the weight to be given legislative history, but they do not justify abandoning this Court's long tradition of using all available interpretive tools to ascertain the meaning of a statute. Riley, supra at 463-464, 719 N.Y.S.2d at 627 (emphasis added). Similarly, "[to] effect the intention of the legislature the words of a single provision may be enlarged or restrained in their meaning and operation, and language general in expression may be subjected to exceptions through implication." Abood v. Hospital Ambulance Service, Inc., 30 N.Y.2d 295, 298, 332 N.Y.S.2d 877, 880 (1972) (emphasis added); see also, City of New York v. State of New York, 282 A.D.2d 134, 141, 725 N.Y.S.2d 10, 15 (1st Dept. 2001), aff'd 98 N.Y.2d 740, 750 N.Y.S.2d 819 (2002) ("[E]ven though the language of a statute is clear, it is appropriate to examine its legislative history, for the primary consideration of the courts in interpreting a statute is to 'ascertain and give effect to the intention of the Legislature'"). Here, of course, the language of the statute is clear: it applies only to actions seeking "judicial review" of State action. A review of the statute's legislative history, as undertaken infra, unmistakably confirms what Article 86 says: it applies only to those actions seeking judicial review of state agency rulings, -39- regulations and procedures. It was therefore clear legal error for the Appellate Division to find first that the statute clearly and unambiguously applied to this action (see, supra, at Point I.A.) and second that the legislative history fails to establish the Legislature's intent to limit the statute's applicability to those actions seeking review of agency determinations (as discussed next). B. Legislative History Confirms that Article 86 Is Limited in Scope and Applicability to Individuals and Small Businesses Who Do Not Have a Financial Incentive to Seek Judicial Review of State Agency Action. Contrary to the conclusions reached by the Appellate Division in dicta, the legislative history to Article 86 makes clear that the statute applies only where (1) "an agency takes a clearly unreasonable act, but … the cost of pursuing the matter in the courts exceeds the amount at issue" (A-503 (Memorandum in Support of 1982 Bill, at 2 (emphasis added))); see also, A-540-541 (Memorandum of the Governor Approving the 1989 Bill (noting that the bill only applies to those who need assistance)), A-506 (Letter from Sponsor Robin Schimminger, dated July 20, 1982 ("[The bill] is meant to equalize the 'price of principle' for the individual or business so that they will pursue a fine or judgment which they consider unfair − especially when fines are less than the cost of the appeal")), and A-498 (July 21, 1982 Letter from Bill Sponsors, Robin Schimminger and Walter Floss, Jr. to the Governor, at 2 (stating that the bill intends to give individuals and small -40- businesses the ability to challenge "regulatory and enforcement policy" when that individual/small business "lacks the resources to take the issue to Court [when] the amount under dispute does not justify the rather substantial expense of so proceeding")), and (2) the agency acted unjustifiably in "impos[ing] fines, suspen[ding] or revo[king] licenses or compel[ling] or restrict[ing] … a regulated entity's activities." (A-494 (1982 Proposed Bill, § 601, Legislative Intent); see also, A-544 (1989 Budget Report on Bills (stating at section 1, "Subject and purpose," that "this bill would allow individuals, small businesses, and not-for- profit corporations to seek recoupment of legal fees and expenses when said individuals or entities appeal an unjustifiable ruling of a State agency, board or commission") (emphasis added))), A-542 (Letter from Bill Sponsor Robin Schimminger, dated September 21, 1989, at 1 (stating that the purpose of the bill is protect litigants from "unfair agency enforcement action")), A-513 (1983 Proposed Bill (defining action as "any action by a state agency to compel a regulated entity to act, to enjoin a regulated entity from acting, or to fine a regulated entity")), and A-525 (1984 Proposed Bill (awarding reasonable litigation expenses only "[w]here a state agency acts to compel a regulated entity to act, to enjoin a regulated entity from acting, to fine a regulated entity, and such entity appeals such action to any judge or presiding officer"))). -41- The EAJA was codified as Article 86 to the CPLR in 1990 after an eight- year battle which saw several bills passed by the Legislature and vetoed by the Governor with express instructions to limit its scope and applicability. It is thus necessary, in order to truly understand the intent of the Legislature in limiting the scope of Article 86, to look not only at the legislative history of the finished product, but also that of the original and all subsequent bills that were vetoed before the final product was crafted. 1. The Legislative History to the 1989 EAJA Bill Clearly Confirms that the Scope and Applicability of the Bill Is Limited to Those Actions and Proceedings Seeking Judicial Review of Administrative Action of the State. The Appellate Division concluded, in dicta, that the legislative history to the EAJA does not support the trial court's conclusion and the State Police Defendants' position that the EAJA does not apply to actions seeking millions of dollars in compensatory damages. Kimmel, supra, 76 A.D.3d at 196, 906 N.Y.S.2d at 409 (A-1060). Such a conclusion was based largely upon a letter from the bill's sponsor, Robin Schimminger, who, on September 21, 1989, wrote to then Governor Cuomo stating: Assembly bill 3313-B (Schimminger, et. al.) would allow small businesses, not-for-profit corporations, and individuals with a net worth of up to $50,000 (excluding their primary residence) to be reimbursed for their legal fees if they win a civil action -42- brought against the State and the court finds that the State's position lacks substantial justification. (A-542). According to the Appellate Division, the fact that Mr. Schimminger did not qualify the term "civil action" means that Article 86 applies to any civil action irrespective of whether it seeks judicial review of an action of the State. Kimmel, supra, 76 A.D.3d at 194-195, 906 N.Y.S.2d at 408 (A-1059-1060). Leaving aside the fact that the Appellate Division's conclusion and reasoning again ignores the actual statutory language "brought to seek judicial review of an action of the state" (CPLR § 8602(a)), the very next paragraph from Mr. Schimminger's letter to the Governor clearly identifies the types of "civil actions" with which he and the statute are concerned: Small business owners and public interest groups have called for this proposal to protect such parties from unfair agency enforcement actions. As an adversary, the State enjoys a distinct advantage over litigants with limited resources. Too often, people have no choice but to concede to an action taken against them by a State agency, even if convinced of their innocence, because of the prohibitive cost of contesting such actions. (A-542 (emphasis added)). That paragraph cannot be any clearer, as it sets forth both the intent and the purpose of the bill, which is to limit its scope and applicability to actions or proceedings brought to seek judicial review of state agency rulings, regulations, and procedures where the costs associated with -43- challenging such actions are prohibitive. That fact is further illustrated by the following paragraph in that same letter: The Executive Branch has also previously expressed concerns that such a proposal would place an unwarranted strain on the State budget. However, the federal government has had a similar statute in place since 1980, and such concerns are simply not borne out by the federal experience. Certainly, if State agencies are using their regulatory powers responsibly and judiciously, the fiscal impact of Assembly bill 3313-B would be negligible. (A-542-543) (emphasis added). This paragraph, much like the one above, limits the costs that the State can expect to incur to those related to an agency's misuse of its "regulatory powers"; that statement, much like the statements above, can be interpreted in only one way: to limit the scope and applicability of Article 86 to actions seeking judicial review of administrative actions of the State. That interpretation is further evidenced by the Governor's memorandum approving the 1989 EAJA bill, where he states the following: I am pleased to sign this bill. I believe that a program of providing recompense for the cost of correcting official error is highly desirable as long as it is limited to helping those who need assistance, it does not deter State agencies from pursuing legitimate goals and it contains adequate restraints on the amount of fees awarded. -44- (A-540 (emphasis added)). That language, too, clearly limits the applicability of the EAJA to actions challenging erroneous agency rulings, enforcement procedures, and regulations. There is simply no logical way to fit a civil action for millions of dollars in compensatory damages for intentional acts of employment discrimination and harassment under the Human Rights Law into the description "correcting official error." The intended application and scope of the EAJA is further corroborated by the Budget Report on Bills, which was submitted to the Governor in opposition to the EAJA. That report states the following: At section 1, "Subject and purpose" of the bill, that "this bill would allow individuals, small businesses, and not-for-profit corporations to seek recoupment of legal fees and expenses when said individuals or entities appeal an unjustifiable ruling of a State agency, board or commission." At section 2, "Summary of provisions" of the bill, that the State EAJA "provides a means of redress for individuals, small businesses, and not-for-profit corporations in situations where a State agency, board or commission has given an unfavorable ruling without good cause." At section 4, "Arguments in support" of the bill, that the "bill would allow individuals, small businesses and not-for-profit corporations to be recompensed for legal expenses incurred when challenging a State ruling deemed substantially unjustifiable. This -45- would encourage individuals, small businesses and not-for-profit corporations to seek redress when they feel the State has made a ruling that unjustly affects them. Under the current law, there is no provision for the recovery of legal costs when disputing a State ruling. This lack of a means of recoupment effectively prevents individuals and entities with limited resources from litigating what they perceive to be an unfair ruling." At section 5, "Possible objections" to the bill, that "[m]any, if not most, State agencies make rulings which have the potential to negatively affect individuals, small businesses and not-for-profit corporations. By encouraging lawsuits, this bill would significantly increase the workload of the legal staffs or the majority of State agencies." (A-544-546 (emphasis added)). Much like the letter from Mr. Schimminger and the memorandum from the Governor approving the legislation, the Budget Report on Bills does not make a single mention of anything that would support, either expressly or implicitly, in isolation or otherwise, the argument that Article 86 may be applied to civil actions brought primarily for compensatory damages for alleged sexual discrimination and harassment by state officials under the Human Rights Law. To the contrary, all of the language in the legislative history clearly shows that the scope and applicability of Article 86 is limited to actions and proceedings brought to seek judicial review of administrative action of the State. -46- Finally, even the letter from Alexander Sussman of the Association of the Bar of the City of New York, which the Appellate Division majority relied upon so heavily (Kimmel, supra, 76 A.D.3d at 196, 906 N.Y.S.2d at 409 (A-1060)), evidences the limited scope of Article 86. In that letter, Mr. Sussman states that "the legislation would provide an incentive to State agencies to reach more considered determinations." (A-547 (emphasis added)). Sussman's use of the terms "arbitrary and unreasonable" in that same letter further confirms that the Association of the Bar of the City of New York viewed the EAJA as being limited to actions seeking the judicial review of state agency rulings, regulations, and procedures (see also, A-548 (stating that Article 86 will "seek[] to promote equal justice by authorizing an award of attorneys fees and other reasonable expenses incurred by prevailing parties in civil proceedings, with the exception of tort actions, against the State[,]" and again limiting its application to those "low income individuals and small businesses faced with arbitrary and unreasonable governmental action" (emphasis added))). "Arbitrary and unreasonable" is, of course, the legal standard for judicial review of rulings and/or determinations of a state agency. See, Sigety v. Ingraham, 29 N.Y.2d 110, 114, 324 N.Y.S.2d 10, 10 (1971) (holding that an agency determination "is not to be disturbed if it has a reasonable basis and is not arbitrary or capricious"); see also, Matter of Jennings v. Commissioner, New York State Department of Social Services, 71 A.D.3d 98, 109, -47- 893 N.Y.S.2d 103, 111 (3d Dept. 2010) ("In a proceeding such as this, which challenges a determination made by an administrative agency as to the proper interpretation of statutes and regulations, the court's function is to ascertain, upon the proof before the agency, whether its determination had a rational basis in the record or, conversely, was arbitrary and capricious or affected by an error of law"). Thus, whatever support the out-of-context snippets from the legislative history invoked by the Appellate Division majority may lend to its strained construction of the statute, when considered in its entirety the legislative history of Article 86 makes clear that the legislature intended that the EAJA be limited in both scope and applicability to those actions seeking judicial review of state agency action. That fact is made even more apparent when the legislative history to all of the prior, vetoed EAJA bills is considered. 2. The Legislative History to the Prior EAJA Bills Confirms that the EAJA Is Limited to Actions Seeking Judicial Review of Administrative Action of the State. The Appellate Division further concluded, again in dicta, that the legislative history to the prior EAJA bills is irrelevant to determining the intent and purpose of Article 86 because "the text of the EAJA that was enacted into law in 1989 bears little resemblance to those prior versions." Kimmel, supra, 76 A.D.3d at 194, 906 N.Y.S.2d at 408 (A-1058); cf (A-1062-1064) (dissenters at Appellate Division -48- finding that the prior bills are all relevant to determining the Legislature's intent). Kimmel, supra, 76 A.D.3d at 199, 906 N.Y.S.2d at 411. That statement could not be less accurate, as the 1982 proposed legislation, much like Article 86 as adopted and the 1983, 1984, and 1986 bills, was limited in scope and applicability to those actions and proceedings seeking judicial review of state agency action. Moreover, the sponsors of the prior bills made clear statements that each such bill was modeled after the federal EAJA. See, A-531 (letter from bill sponsor, Walter Floss, Jr., dated July 25, 1984 in support of 1984 bill ("This particular type of legislation is modeled after federal and state legislation commonly known as 'Equal Access to Justice' legislation")), A-537 (letter from bill sponsor, Robin Schimminger, dated August 1, 1986, in support of the bill ("As you are aware, the President and the Congress have approved similar legislation to protect small businesses from onerous actions by federal agencies. This Federal Equal Access provision has cost less than $1/2 million a fiscal year. New York State's costs would be significantly lower, and I believe we should afford the same protection to small businesses owners on a state level")), and A-518 (Budget Report on Bills for 1983 Bill ("This bill closely resembles the Federal Equal Access to Justice Act"). Thus, contrary to the conclusion reached by the Appellate Division, there can be no question that the 1982, 1983, 1984, and 1986 bills are all relevant in determining the purpose and intent of the EAJA – because they resulted in it. -49- a. The 1982 EAJA Bill. The 1982 EAJA bill made its intention clear, stating that The legislature hereby finds and declares that state agencies possess a tremendous power in their ability to impose fines, suspend or revoke licenses or compel or restrict the activities of regulated entities[, which are defined at § 602(1) in the proposed bill as "any individual or business entity … subject to the regulations of any state agency"]. The legislature further finds that regulated entities can contest such agency actions only at great cost and that such agency actions often place an unfair burden on regulated entities. The legislature further finds that this situation often tempts state agencies to proceed against regulated entities which are least able to contest such agency actions and that this often results in actions other than those which are in the best interest of the public. The legislature further finds that, by contesting an unjust agency action and prevailing, a regulated entity often performs an important service to the public because it compels such agency to enforce the laws of this state as they were written by the elected representatives of this state. Therefore, in order to encourage regulated entities to contest unjust actions by state agencies, the legislature hereby declares that the financial burden borne by these regulated entities should be, in all fairness, subject to state reimbursement of reasonable litigation expenses when such regulated entities prevail in contesting an agency action. (A-494-495 (emphasis added)). That statement of legislative intent shows that from day one the purpose of the EAJA was to provide an incentive to those without the monetary means to judicially contest unjust state agency action. Moreover, -50- that statement further explains that the reason the bill recompenses individuals and small businesses in such situations is because they are "perform[ing] an important service to the public" by "compel[ling] such agenc[ies] to enforce the laws of this state as they were written." Id.; see also, A-503 (Memorandum in Support of 1989 Bill ("What this bill is, is an attempt to deal with the condition whereby an agency takes a clearly unreasonable act, but because the cost of pursuing the matter in the courts exceeds the amount at issue, the regulated entity lets the agency get away with it. When this happens, it is more than a miscarriage of justice under color of state law. It is a tragedy to the public, in that agencies are encouraged to 'enforce' the law in ways never intended by the public's elected representatives")). This is important because Kimmel, in addition to seeking fees in an action for monetary damages (as opposed to seeking judicial review of an administrative action of the State), is asking the Court to award her attorneys' fees for enforcing a private right, not a public one. See generally, A-21-52 (the Complaint) and A-135-137 (granting judgment in favor of Kimmel for compensatory damages only). That 1982 bill also sets forth definitions of "agency action" and "judicial review" which are useful in determining the intent of the legislature in crafting Article 86. The term "judicial review" is defined at § 602(4), as "an appeal of an agency action," which is defined as "an action by a state agency which compels a regulated entity to act, enjoins a regulated entity from acting, or fines a regulated -51- entity." (A-495 (The 1982 proposed bill, at § 602(3)). That definition of "judicial review" is consistent with the definitions in both Black's Law Dictionary and Ballantine's Law Dictionary. See, supra, Point A(1). There can thus be no question that the 1982 bill limited the scope and the applicability of that proposed EAJA to those actions and proceedings which sought judicial review of state agency rulings, regulations, and procedures. See also, A-495, at § 603 (stating that a plaintiff can recover his/her litigation expenses "[w]here a state agency acts to compel a regulated entity to act, to enjoin a regulated entity from acting, or to fine a regulated entity")), and A-503 (Memorandum in Support of 1982 Bill (stating that the bill "provides an incentive for the regulated agency to contest an administrative determination")). Finally, in his 1982 letter to the Governor, bill sponsor Schimminger (who also sponsored the 1989 bill which became Article 86) stated that the purpose of the EAJA was to reimburse individuals and businesses for litigation expenses where currently they are reluctant to contest government decisions because of the cost of pursuing such litigation. It would provide for the award of attorney fees and other reasonable litigation expenses to businesses and individuals who must go to court to fight an adverse State agency determination and who are successful in doing so. …. This Equal Access provision does not apply in cases where the fine is substantially more than court costs – the individual or business does not need the motivation to -52- contest agency actions in that instance. Instead, it is meant to equalize the 'price of principle' for the individual or business so that they will pursue a fine or judgment which they consider unfair – especially when fines are less then the cost of an appeal. (A-506 (emphasis added)); see also, A-498 (July 21, 1982 Letter from Bill Sponsors, Robin Schimminger and Walter Floss, Jr., at 3 (stating that the purpose of the bill was to encourage regulated entities, who either "lack[] the resources to take the issue to Court or … the amount under dispute does not justify the rather substantial expense" of contesting state agency "regulatory and enforcement policy")); A-503 (Memorandum in Support of 1982 Bill ("What this bill is, is an attempt to deal with the condition whereby an agency takes a clearly unreasonable act, but because the cost of pursuing the matter in the courts exceeds the amount at issue, the regulated entity lets the agency get away with it"))). Those statements, much like the language in the 1982 bill, as well as the language in Article 86 itself, make clear that the EAJA was intended to apply only to those prevailing parties who had inadequate financial motivation to challenge unreasonable state agency action. It certainly was not intended to apply to a plaintiff who seeks millions of dollars in compensatory damages against a state agency as employer for alleged discriminatory and/or harassing conduct of its officials. The 1982 bill was, however, vetoed by the Governor because (1) it lacked "[s]tandards for effecting implementation of the bill's provision," including the -53- absence of any "criteria for assessment of the damages," (2) "[t]he coverage of individuals and business entities under the term 'regulated entity' would authorize actions by any individual in the State for almost any action by a State agency[,]" thus opening up the potential for huge costs to the State, and (3) it could "discourage governmental entities from exercising legally mandated regulatory responsibilities with respect to business entities." (A-510-511 (Governor Memorandum Vetoing the Proposed Legislation, at 2-3)). b. The Subsequent EAJA Bills. The Legislature was thus forced to go back to the drawing board to create a more narrowly drawn EAJA that would provide necessary safeguards to protect state agencies from near limitless lawsuits. This is exactly what the Legislature did over the next eight years, as it went back and forth with the Governor to fashion a bill that would help those who needed assistance to challenge unjustified administrative actions of the State, while at the same time providing state agencies with the necessary discretionary and fiscal protection. See, A-540-541 (Governor's Memorandum Approving the 1989 Bill, at 1 (in approving the 1989 State EAJA bill, the Governor noted that the previous bills "lacked … necessary safeguards" by "deter[ing] State agencies from pursuing legitimate goals" and failing to "contain[] adequate restraints on the amount of fees awarded"); see generally, A-512-514 (1983 Bill), A-524-526 (1984 Bill), and A-534-536 (1986 Bill); see also, A-518 -54- (Budget Report on Bills Opposing the 1983 Bill ("It should be noted, however, that the scope of this year's bill is narrower than the one which Governor Carey vetoed last year"), A-528 (Budget Report on Bills Opposing the 1984 Bill ("It should be noted, however, that the scope of this year's bill is narrower than the one which … Governor Cuomo vetoed last year"), and A-539 (the Governor's Memorandum vetoing the 1986 Bill (noting that he would not approve such a bill unless it addressed his "previously enumerated concerns"). The 1983 EAJA bill, however, much like its 1982 predecessor, was still considered too broad both in scope and applicability. (See generally, A-512-523 (the proposed 1983 Bill, a Memorandum in Support, the Budget Report on Bills Opposing the 1983 bill, and Governor's Memorandum Vetoing the 1983 Bill)). This was so despite an acknowledgement from the Budget Report on Bills that it was narrower in scope than the 1982 bill. (A-518 ("It should be noted, however, that the scope of this year's bill is narrower than the one which Governor Carey vetoed last year")). The Governor vetoed the bill because it was still too broadly worded by failing to provide the necessary safeguards to protect state agencies from near limitless lawsuits. (A-522-523). The 1984 EAJA bill, much like the 1982 and 1983 bills, was intended to recompense those litigants who had no financial incentive to challenge unjustified -55- state actions in the form of "compel[ling] a regulated entity to act, enjoin[ing] a regulated entity from acting, or fin[ing] a regulated entity." (A-524; see also, A- 531 (Letter to Governor from Sponsor Walter Floss, Jr., dated July 25, 1984 ("The purpose [] of this legislation [is to] create[] an important tool for small businesses to operate within New York State as they do in other states, i.e., to be able to litigate those matters which may not provide a complete financial incentive for litigation but, rather stand as a matter of principle"))). The Legislature, in order to narrow the scope of the 1984 bill, tweaked its definition of "regulated entity" so that it applied only to "small businesses other than a municipal corporation." (A- 524). However, despite narrowing the scope and applicability of the 1984 bill (see, A-528 ("It should be noted, however, that the scope of this year's bill is narrower than the one which … Governor Cuomo vetoed last year")), the Governor still vetoed it because it remained too broadly worded and failed to provide the necessary safeguards to protect state agencies from near limitless lawsuits, thus opening up the State to potentially overwhelming litigation costs. (A-533). The 1986 EAJA bill replaced the term "regulated entity" with "small business." (A-534-536). The bill stated, both in its purpose statement and in its definition of "reasonable litigation expenses," that it would apply only to those small businesses who challenged a state agency action in the form of "compel[ling] a small business to act, enjoin[ing] a small business from acting, or fin[ing] a small -56- business." See, A-534-535. Moreover, the bill stated clearly that it would apply only where "a state agency acts in an administrative proceeding or court case to compel a small business to act, to enjoin a small business from acting, or to fine a small business, and such small business appeals such action to any judge or presiding officer." Id. at § 602 (emphasis added). Thus, the bill, by its very language, required there to be a prior judicial or administrative proceeding in order for the EAJA to be triggered. See also, supra, Point I.A. (the definitions of "judicial review" in Black's and Ballantine's Law dictionaries, which both limit the term to those actions or proceedings that review a prior judicial or administrative determination). That fact was made clear by the letter sent by State Assemblyman and sponsor of the bill, Schimminger, to the Governor, which stated that the bill would apply in the limited circumstance where "appellants prevail in challenging an agency enforcement action." (A-537 (emphasis added)). That letter went on to state that: Too often agencies will wrongly issue an enforcement action against an innocent party. If the victimized party is a small business or person of limited means, the action will probably go unchallenged due to extravagant court costs. The reimbursement required by this legislation would give these victimized parties the option of contesting an action rather than yielding in the face of otherwise prohibitive legal bills. -57- Id. The 1986 bill, much like its predecessors, thus clearly applied in the most limited of circumstances: to situations where (1) the petitioner/plaintiff has no financial incentive to challenge a state agency action because the cost of doing so is more than any possible recovery, and (2) the petitioner/plaintiff is challenging a state enforcement action, either in the form of an agency ruling, regulation, or procedure. The Governor, however, much like the earlier bills, vetoed the 1986 EAJA bill because it was "almost identical with [the earlier bills]" in that it "would inhibit State agencies in the performance of their statutory responsibilities, increase State expenses and ultimately shift the cost of higher agency operating costs to taxpayers." (A-539). It is thus incontrovertible that each bill, beginning with the proposed 1982 legislation, was more narrowly tailored than the prior bill, culminating in the Governor's approval of Article 86 in 1990. It is equally incontrovertible that each bill, while narrower in scope that its predecessor, kept intact the overall purpose and intent of that original bill: to provide an incentive to those with limited means to challenge unjustified administrative actions of the State. See, A-515 (Memorandum in Support of 1983 Bill (stating that the purpose of bill is to recompense those who "successfully challeng[e] a State agency ruling") (emphasis -58- added))); A-517 (Budget Report on Bills for 1983 Bill (stating that the State EAJA applies to those actions brought "as a result of adverse administrative determinations by State agencies")); A-524-526 (the 1984 Bill, R.531 (Letter to Governor from Sponsor Walter Floss, Jr., dated July 25, 1984 ("The purpose [] of this legislation [is to] create[] an important tool for small businesses to operate within New York State as they do in other states, i.e., to be able to litigate those matters which may not provide a complete financial incentive for litigation but, rather stand as a matter of principle"))); A-527 (Budget Report on Bills for 1984 Bill ("The bill's provisions could be triggered 'by any action by a State agency to compel a small business to act, to enjoin a small business from acting, or to fine a small business")); A-534-536 (the 1986 Bill); and A-537 (August 1, 1986 letter from bill sponsor Schimminger to the Governor urging approval of the bill ("This 'Equal Access to Justice" bill would require State agencies to reimburse small businesses for court and attorney fees when appellants prevail in challenging an agency enforcement action. Too often agencies will wrongly issue an enforcement action against innocent party. If the victimized party is a small business or person of limited means, the action will probably go unchallenged due to extravagant court costs. The reimbursement required by the legislation would give these victimized parties the option of contesting an action rather than yielding in the face of otherwise prohibitive legal bills"))). Article 86 as adopted therefore must, at the -59- very least, not be construed to be more broadly drawn than its predecessors, which themselves applied only to those prevailing parties who challenge a state agency action. In contrast to this plethora of indicia that Article 86 was meant to apply only to proceedings seeking "review" of agency action, rather than a "verdict" for money damages, this extensive legislative history contains not a single expression that the EAJA was intended to be available in multi-million dollar claims for compensatory damages. What the legislative history does not say in this respect is thus just as telling as what it does say. All this legislative history notwithstanding, the Appellate Division subscribed to the belief that when finally enacted in 1990, the EAJA as adopted ballooned to apply not only to actions seeking judicial review but also to actions seeking compensatory damages against the State − all without the Legislature or the Governor having said or considered a single word to that effect. To so construe the statute flies in the face of virtually every tenet of statutory construction the courts have developed. It is thus clear that Article 86 is limited to those actions seeking judicial review of state agency rulings and other similar action. Since Kimmel and Logan- Baldwin have sought an award of attorneys' fees in a type of action that is clearly -60- outside the scope of Article 86 (i.e., an action seeking compensatory damages only), this Court should reverse the Appellate Division and deny Kimmel's and Logan-Baldwin's applications for Article 86 fee awards in their entirety. 3. The Legistative History Also Confirms that the EAJA Was So Limited in Scope that It Was Passed With the Expectation that It Would Cost the State Less than $500,000 Annually In Fee Awards. The Appellate Division's conclusion that Article 86 applies to all civil actions, including the action by Kimmel for compensatory damages under the Human Rights Law for which she sought over a million dollars in attorneys' fees, also contradicts clear statements of legislative intent limiting the scope and applicability of the statute so significantly that it was expected and understood by both the sponsor of the bill and the Governor that State liability for fees and costs would be less than $500,000 annually. (A-537). Such statements, as explained below, coupled with the clear language throughout the statute and the legislative history to the effect that Article 86 applies only to actions seeking "judicial review" of agency action, leads to only one logical conclusion: that the EAJA was not designed to apply to actions seeking compensatory damages under the Human Rights Law or elsewhere. Specifically, in his letter to the Governor supporting the 1986 EAJA bill, State Assemblyman and sponsor of the bill Schimminger stated that: -61- As you are aware, the President and the Congress have approved similar legislation to protect small businesses from onerous actions by federal agencies. This Federal Equal Access provision has cost less than $1/2 million a fiscal year. New York State's costs would be significantly lower, and I believe we should afford the same protection to small businesses owners on a state level. (A-537) (emphasis added). The import of this language is clear and unmistakable: the sponsor of that bill (the same assemblyman who sponsored Article 86 as later enacted just a few later later) believed the scope and applicability of the EAJA to be so limited that "New York State's costs would be significantly lower" than the $500,000 that the Federal EAJA had cost per year nationally in its first several years of existence. Kimmel and Logan-Baldwin, in contrast, sought attorneys' fees twice that amount in this case alone. 2 (A-297-310; A-657-669). 2 Of course, attorney fee awards of hundreds of thousands of dollars in employment cases are the rule, not the exception. See, e.g., Rozell v. Ross-Holst, 576 F. Supp. 2d 527, 548 (S.D.N.Y 2008) (attorneys' fees totaling $1,053,041.00 awarded); Insinga v. Cooperative Centrale Raiffeisen Boerenleenbank B.A., 478 F. Supp. 2d 508, 513 (S.D.N.Y. 2007) (attorneys' fees totaling $606,625.00 awarded); Bell v. Helmsley, 2003 N.Y. Misc. LEXIS 537 *19-20, 2013 N.Y. Slip. Op. 50866(u) (N.Y. Sup. Ct. Mar. 27, 2003) (attorneys' fees totaling $568,340.00 awarded); Kauffman v. Maxim Healthcare Services, Inc., 2008 U.S. Dist. LEXIS 77855 *45 (E.D.N.Y. Sept. 9, 2008) (attorneys' fees totaling $475,569.77 awarded); Olsen v. County of Nassau, 2010 U.S. Dist. LEXIS 5915 *26 (E.D.N.Y. Jan. 26, 2010) (attorneys' fees totaling $473,318.76 awarded); Kuper v. Empire Blue Cross & Blue Shield, 2003 U.S. Dist. LEXIS 27728 *42 (S.D.N.Y. Dec. 18, 2003) (attorneys' fees totaling $395,605.00 awarded); Stratton v. Department for the Aging for the City of New York, 1996 WL 352909, *5 (S.D.N.Y. 1996) (attorneys' fees totaling $337,760.03 awarded); Reiter v. Metropolitan Transportation Authority of New York, 2007 U.S. Dist. LEXIS 71008 *70 (S.D.N.Y. Sept. 25, 2007) (attorneys' fees totaling $273,489.00 awarded); Lewis v. Triborough Bridge & Tunnel Authority, 2001 U.S. Dist. LEXIS 11205, *30 (S.D.N.Y. Aug. 6, 2001) (attorneys' fees totaling $271,655.33 awarded); Collins v. New York State Department of Corr. & Cmty. Servs., 2012 U.S. Dist. LEXIS 151162 *21 -62- This was, of course, a point of emphasis throughout the several year period between 1982 and 1989 which saw several EAJA bills passed by the legislature and submitted to the Governor for signature, only to be vetoed on the grounds, among others, that the costs to the State and the taxpayers were potentially enormous. See, A-511 ("Also, the potential costs to the State which would result from enactment of the bill are incalculable. The State's legal expenses would increase substantially, and expenses incurred by agencies as a result of the challenges permitted by the bill would ultimately be passed on to the taxpayers of the State in the form of higher agency and State budgets."); see also, A-539 (indicating again in his veto memorandum that one of the reasons he was vetoing the 1986 bill is that the potential costs to the State and taxpayers were too high). This concern was subsequently addressed by the Legislature, first by the above-quoted statement of Assemblyman Schimminger in his letter to the Governor in support of the 1986 bill, and later in the final and enacted Article 86 when it provided for a verification process to ensure that the $500,000 benchmark on the fees and costs promised would in fact come to pass. See, CPLR § 8604 (N.D.N.Y, June 29, 2012) (attorneys' fees totaling $252,326.25 awarded); McIntyre v. Manhattan Ford, Lincoln-Mercury, 176 Misc. 2d 325, 333, 672 N.Y.S.2d 230, 235 (Sup. Ct. N.Y. Co. 1997) (attorneys' fees totaling $268,156.00 awarded); Adorno v. Port Authority of New York & New Jersey, 685 F. Supp. 2d 507, 519 (S.D.N.Y. 2010) (attorneys' fees totaling $260,330.00 awarded); Skold v. American International Group, Inc., 1999 WL 405539 (S.D.N.Y 1999) (attorneys' fees totaling $219,669.74 awarded); Levy v. Powell, 2005 U.S. Dist. LEXIS 42180 *36 (E.D.N.Y. July 2005) (attorneys' fees totaling $208,590.00 awarded). -63- (establishing an "annual report describing the number, nature and amount of each award in the previous fiscal year … which might aid the legislature and the governor in evaluating the scope and impact of each award); see also, A-541 (citing the annual report as one of the reasons why he ultimately approved of the legislation, which will assist him and the legislature "in determining whether the bill should be extended"). There can thus be little question that the Legislature, in passing Article 86, and the Governor, in signing the legislation, sought to limit the scope and applicability of the statute significantly to ensure that fee awards against the State would be less than the $500,000 per year annually being assessed pursuant to its federal counterpart. Here, on the other hand, Kimmel and Logan-Baldwin sought a fee award in excess of $1 million from the State, more than double the barometer that was envisioned by the bill's sponsor and the Governor who ultimately approved the bill. Considering the language in the statute limiting its scope to actions seeking "judicial review" of state action, coupled with the above statements by the bill's sponsor and the concerns by the Governor regarding the potential costs to the State, construing the statute in the way done by the Appellate Division leads to the legally and factually unsupportable result that Article 86, despite everything to the contrary, somehow allows for liability against the State (but not anyone else) -64- for fee awards in just one case more than double the $500,000 annual benchmark nationally under the Federal EAJA. Notwithstanding the legislative history's perennial concerns with the fiscal impact of a broad EAJA, the Appellate Division majority nonetheless subscribed to an interpretation of the statute which results in substantial additional financial exposure to the State. This was error. 4. The Same Legislative History, Along With Case Law Previously Relied Upon by Respondents, Confirms that the EAJA Does Not Provide a Public Employee the Ability to Obtain an Attorneys' Fee Award Against Her Employer to Enforce a Private Right Under the Human Rights Law. For many of the same reasons discussed in the preceding sections, it is clear that Article 86 was not intended to provide an employee of the State – like Kimmel – the ability to recoup attorneys' fees in actions seeking redress of her private rights as employee. The subject "agency action" here is the alleged failure to prevent sexual harassment in the workplace, which was undertaken by the State as an employer, not regulator. The purpose of the statute, however, is not to provide an incentive to an individual to seek compensatory damages against his/her public employer; rather, it is to provide a means for an individual and/or small business to seek redress for state agency actions that affect both the individual and the public at large. See, A-503 (Memorandum in Support of 1982 Bill ("What the -65- bill is, is an attempt to deal with the condition whereby an agency takes a clearly unreasonable act, but because the cost of pursuing the matter in the courts exceeds the amount at issue, the regulated entity lets the agency get away with it. When this happens, it is more than a miscarriage of justice under color of state law. It is a tragedy to the public, in that agencies are encouraged to 'enforce' the law in ways never intended by the public's elected representatives")); A-531-532 (Letter to Governor from Sponsor Walter Floss, dated July 25, 1984 (stating that the purpose of the bill is to provide incentives to small businesses to challenge state agency action, not for financial gain, but "as a matter of principle")); A-534-535 (1986 State EAJA Bill, § 600 (stating that it is in the public interest to provide small businesses with an incentive to challenge unjustified state agency rulings, regulations, and procedures)). In any event, in no respect was the State EAJA intended to give private litigants a "leg up" when their employer is the State. Even under the Federal EAJA, public employees stand on no better footing than their private counterparts. In this regard, Villescas v. Richardson, 145 F. Supp.2d 1228 (D. Colo. 2001), relied on by Kimmel below in support of her argument that a public employee who obtains a monetary judgment against her employer for its employment-related acts can obtain a fee award under the Federal EAJA, actually establishes the State Police's position instead. Villescas construed and relied upon a section of the -66- Federal EAJA that was never adopted by Article 86, namely 28 U.S.C. § 2412(b), to a claim brought for violations of the ADEA. Significantly, 28 U.S.C. § 2412(b), unlike Article 86, awards attorneys' fees "to the same extent that any other party would be liable under … the terms of any statute which specifically provides for such an award" (Villescas, supra at 1231), the purpose of which was "to place the United States on 'equal footing' with private litigants when defending against civil rights claims" and to have "the [federal] EAJA serve[] as an explicit waiver of the United States' sovereign immunity as to the ADEA attorney fee provision." Id. Accordingly, Villescas makes clear that even the Federal EAJA is applicable to claims brought by a public employee against her employer for discrimination only where the statute pursuant to which judgment was granted specifically provides for an award of attorneys' fees. Id. at 1231; see also, Harley v. Potter, 2008 U.S. Dist. LEXIS 55476, *4-6 (W.D. Okla. 2008) (holding that a public employee may be awarded attorneys' fees under the federal EAJA in an action pursuant to the ADEA against his/her public employer on the grounds that 28 U.S.C. § 2412(b) "permits an attorney fee award against the United States where a private litigant would be amendable to a fee award under the statute establishing the particular cause of action"). This is yet another respect in which Article 86, despite any general "similarity" to the Federal EAJA, actually departs from its Federal counterpart. -67- Here, Kimmel obtained a judgment pursuant to the Human Rights Law; it is undisputed, and was even admitted by Kimmel at the court below (see, A-308, at ¶ 29), that the Human Rights Law does not provide for an award of attorneys' fees against a private sector employer. See, Human Rights Law. Thus, even under 28 U.S.C. § 2412(b) the United States qua employer is liable for harassment and/or discrimination only "to the same extent that any other party would be liable under common law or under the terms of any statute which provides specifically for such an award"; here, however, there is no such extent. Indeed, and entirely contrary to the Federal EAJA provisions at issue in Villescas, Kimmel seeks to and the Appellate Division does in fact impose a burden on the State which no other New York employer bears: liability for attorneys' fees in Human Rights Law cases. To even state that result is to reject it as the import of Article 86. See also discussion at Point III supra (in construing statutes, absurd results are to be avoided). Thus, pursuant to caselaw previously cited and relied upon by Kimmel, as well as the legislative history of the EAJA, Kimmel and Logan-Baldwin cannot, pursuant to Article 86, recover attorneys' fees against the State Police Defendants in the circumstances presented here. -68- CONCLUSION Article 86's clear statutory language is confirmed by its stated purpose and extensive legislative history: the statute applies only to actions seeking judicial review of state administrative actions, and not to this one. This Court should therefore reverse the Appellate Division and affirm the trial court's denial of the motions brought by Kimmel and Logan-Baldwin for attorneys' fees pursuant to Article 86 of the CPLR. DATED: Buffalo, New York September 22, 2014 JAECKLE FLEISCHMANN & MUGEL, LLP By: s/ Mitchell J. Banas, Jr. Mitchell J. Banas, Jr., Esq. Bradley A. Hoppe, Esq. Attorneys for Appellants-Defendants State of New York and New York State Division of State Police Avant Building – Suite 900 200 Delaware Avenue Buffalo, New York 14202-2107 (716) 856-0600 1103060v7