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: A. VINCENT BUZARD, ESQ. (Time Requested: 30 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 AND SUPPLEMENTAL APPENDIX FOR INTERVENOR-RESPONDENT On the Brief: Svetlana K. Ivy, Esq. Allison A. Bosworth, Esq. A. VINCENT BUZARD, ESQ. HARRIS BEACH PLLC Attorneys for Intervenor-Respondent 99 Garnsey Road Pittsford, New York 14534 Tel.: (585) 419-8800 Fax: (585) 419-8801 January 21, 2015 i TABLE OF CONTENTS Page TABLE OF AUTHORITIES ................................................................................... iv PRELIMINARY STATEMENT ............................................................................... 1 QUESTIONS PRESENTED ...................................................................................... 3 SUMMARY OF ARGUMENT ................................................................................. 4 COUNTER-STATEMENT OF FACTS .................................................................... 8 A. The harassment and discrimination endured by Ms. Kimmel during her employment as a State Trooper ............................. 8 B. The conduct of the State Police during the nineteen-year litigation resulted in sanctions, the striking of the Answer and condemnation by the courts .......................................................... 11 C. The Appellate Division held that the EAJA applied to this case ............................................................................................... 16 D. The State made various arguments regarding the financial eligibility of Ms. Kimmel which were eventually abandoned except for the argument which was eventually found by the Appellate Division to be without substantial basis in law or in fact ........................................................................... 17 ARGUMENT ...........................................................................................................21 POINT I THE APPELLATE DIVISION CORRECTLY HELD THAT UNDER A PLAIN READING OF THE STATUTE, THE EAJA APPLIES TO THIS ACTION .................................................................................... 21 A. The plain language of the EAJA unambiguously demonstrates that the EAJA applies to this case ...................... 21 ii B. Nothing in the text of the EAJA limits recovery of attorneys’ fees to CPLR Article 78 proceedings or to declaratory judgment actions and reading in such a limitation is contrary to settled rules of statutory construction ................................................................ 26 C. If the EAJA applies only to Article 78 proceedings and declaratory judgment actions, the language excluding actions commenced in the Court of Claims is rendered meaningless ................................................ 34 POINT II THE APPELLATE DIVISION’S DECISION IS CONSISTENT WITH THE PURPOSE AND SPIRIT OF THE EAJA, WHILE THE STATE’S INTERPRETATION IS CONTRARY TO IT .......................... 36 A. The stated purpose of Article 86 ............................................... 37 B. The granting of fees in this case will further the purpose of the EAJA ................................................................. 38 POINT III THE APPELLATE DIVISION CORRECTLY HELD THAT THE LEGISLATIVE HISTORY OF THE EAJA CONFIRMS THAT THE RIGHT OF THE PREVAILING PARTY TO BE AWARDED LEGAL FEES APPLIES IN ANY CIVIL ACTION AGAINST THE STATE ............................... 46 A. The statements in the Assembly Memorandum in Support of the EAJA demonstrate that the intent was for it to apply to “any civil action” – including an action under the Human Rights Law .................................... 47 B. The contents of the 1989 bill jacket further support the Appellate Division’s conclusion that the EAJA is not limited to review of administrative actions ..................... 51 iii C. The 1989 bill’s significant divergence from the vetoed 1982, 1983, 1984, and 1986 bills further supports the EAJA’s applicability to the present action ......................................................................................... 55 D. The portions of the 1989 bill jacket cited by the State Police do not support the narrow construction of the EAJA it urges .................................................................. 57 CONCLUSION ........................................................................................................62 SUPPLEMENTAL APPENDIX OF INTERVENOR-RESPONDENT EMMELYN LOGAN-BALDWIN Complaint, with Exhibits, dated May 24, 1995 (Appendix A23-A65) ................................................................................ SA-1 Affirmation of Emmelyn Logan-Baldwin in Support of Motion for Attorneys’ Fees and Costs, dated May 27, 2011 (Record on Appeal pp. 1242-1273) ........................................................ SA-47 SUPPLEMENT TO BRIEF OF INTERVENOR-RESPONDENT EMMELYN LOGAN-BALDWIN L 1989, ch 770, NY Assembly Debate Transcripts dated June 28, 1989 ..................................................................................... S-1 Bill Jacket, L 1989, ch 770, Letter from New York State Bar Association to Gov. Cuomo, dated Aug. 6, 1989 .......................................................... S-14 Bill Jacket, L 1989, ch 770, Letter from R. Schimminger to E. Davis, dated October 4, 1989 ............................................................................. S-17 Bill Jacket, L 1989, ch 770, Votes of the Assembly and Senate ............ S-19 iv TABLE OF AUTHORITIES Page Cases Amorosi v S. Colonie Ind. Cent. School Dist., 9 NY3d 367 (2007) ...............................................................................................46 Beechwood Restorative Care Ctr. v Signor, 11 AD3d 987 (4th Dept 2004), affd 5 NY3d 435 (2005) .....................................44 Commonwealth of Northern Mariana Islands v. Canadian Imperial Bank of Commerce, 21 NY3d 55 (2013) ..............................................................28 Ferrick v State of New York, 198 AD2d 822 (4th Dept 1993) ............................................................................30 Frontier Ins. Co. v State, 160 Misc 2d 437 (Ct Cl 1993), affd 197 AD2d 177 (3d Dept 1994), affd 87 NY2d 864 (1995) ...........................47 Gordon v State of New York, 146 Misc. 2d 479 (Ct Cl 1990) .................................35 Greystone Mgt. Corp. v Conciliation and Appeals Bd. of City of New York, 62 NY2d 763 (1984) ..............................................................27 Hernandez v Barrios-Paoli, 93 NY2d 781 (1999) ..................................................36 Holmes v Winter, 22 NY3d 300 (2013), cert denied 134 S Ct 2664 (2014).........................................................................51 Huey v Sullivan, 971 F2d 1362 (8th Cir 1992) ........................................................45 In re Adoption of Daniel C., 63 NY2d 927 (1984) ..................................................36 In re Capruso v New York State Police, 300 AD2d 27 (1st Dept 2002) ..............................................................................30 v In re Grand Jury Subpoena Duces Tecum Served on Museum of Modern Art, 93 NY2d 729 (1999) .............................................. 55, 57 Kimmel v State, 302 AD2d 908 (4th Dept 2003) ............................................................................14 Kimmel v State, 2001 WL 1656981 (4th Dept Nov. 29, 2001) ...............................14 Kimmel v State, 11 NY3d 729 (2008) ......................................................................16 Kimmel v State, 115 AD3d 1323 (4th Dept 2014) ............................................ 19, 43 Kimmel v State, 2 AD3d 1341 (4th Dept 2003) .......................................................15 Kimmel v State, 261 AD2d 843 (4th Dept 1999) .....................................................12 Kimmel v State, 267 AD2d 1079 (4th Dept 1999) ...................................................12 Kimmel v State, 286 AD2d 881 (4th Dept 2001) .................................................9, 13 Kimmel v State, 38 AD3d 1155 (4th Dept 2007) .....................................................15 Kimmel v State, 49 AD3d 1210 (4th Dept 2008) .....................................................16 Kimmel v State, 5 AD3d 1018 (4th Dept 2004) .......................................................15 Kimmel v State, 76 AD3d 188 (4th Dept 2010) ............................................... passim Kimmel v State, 9 Misc 3d 1102[A], 2005 NY Slip Op 51370[U] (Sup Ct, Monroe County 2005) ..............................15 Lloyd v Grella, 83 NY2d 537 (1994) .......................................................................48 Majewski v Broadalbin-Perth Cent. Sch. Dist., 91 NY2d 577 (1998) .............................................................................................35 Matter of Delmar Box Co., 309 NY 60 (1955) ................................................. 47, 48 vi Matter of Polan v State of N.Y. Ins. Dept., 3 NY3d 54 (2004) .................................................................................................21 Morgenthau v Erlbaum, 59 NY2d 143 (1983) ........................................................27 New York State Clinical Laboratory Ass’n v Kaladjian, 85 NY2d 346 (1995) .............................................................................................37 One Niagara LLC v City of Niagara Falls, 78 AD3d 1554 (4th Dept 2010) ............................................................................27 Pajak v Pajak, 56 NY2d 394 (1982) ........................................................................28 Pan American World Airways, Inc. v. New York State Human Rights Appeal Board, 61 NY2d 542 (1984) ..................................... 24, 25 Riley v County of Broome, 95 NY2d 455 (2000) .....................................................21 Roosevelt Raceway, Inc. v Monaghan, 9 NY2d 293 (1961) ...............................................................................................46 Schultz v Harrison Radiator Div. Gen. Motors Corp., 90 NY2d 311 (1997) .............................................................................................48 Sosebee v Astrue, 494 F3d 583 (7th Cir 2007) ................................................. 19, 43 Top Tile Bldg. Supply Corp. v New York State Tax Comm., 94 AD2d 885 (3d Dept 1983) ...............................................................................27 United States v State of New York, 475 F Supp 1103 (NDNY 1979) ............................................................................ 9 Weiner v City of New York, 19 NY3d 852 (2012) ...................................................52 Wittlinger v Wing, 99 NY2d 425 (2003) ................................................. 7, 37, 43, 44 vii Statutes 5 USC § 504 .............................................................................................................31 5 USC § 504(a)(1) ....................................................................................................31 28 USC § 2412(d) ............................................................................................. 31, 57 28 USC § 2412(d)(1)(A) ................................................................................... 32, 33 42 USC § 2000e–5(k) ..............................................................................................45 Court of Claims Act § 9 ...........................................................................................35 CPLR § 4511 ............................................................................................................38 CPLR § 5225(b) .......................................................................................................28 CPLR § 5602(d) .......................................................................................................20 CPLR § 7802(a) .......................................................................................................30 CPLR § 7803(3) .......................................................................................................61 CPLR § 7804(b) .......................................................................................................35 CPLR § 8600 ............................................................................................... 31, 33, 57 CPLR § 8601 .................................................................................................... passim CPLR § 8601(a) .................................................................................... 21, 22, 30, 44 CPLR § 8602 ............................................................................................................30 CPLR § 8602(a) ............................................................................................... passim CPLR § 8602(d) ................................................................................................ 17, 33 viii CPLR § 8602(g) .......................................................................................................30 CPLR § 8605(b) .......................................................................................................29 Education Law § 2–a................................................................................................48 Executive Law § 297(9) .................................................................................... 24, 25 New York Human Rights Law (Executive Law Art. 15) ........................................22 Title VII of the Civil Rights Act of 1964 .............................................................9, 45 Other Authorities 1969 edition of Ballantine’s Law Dictionary ..........................................................24 Black’s Law Dictionary ...........................................................................................24 Treatises Haig, Commercial Litigation in New York State Courts, § 102:2 [3d Ed.] ............59 McKinney’s Cons Laws of NY, Statutes § 74 .................................................. 28, 29 McKinney’s Cons Laws of NY, Statutes § 96 .........................................................36 McKinney’s Cons Laws of NY, Statutes § 98(a) ............................................. 35, 36 McKinney’s Cons Laws of NY, Statutes § 234 .......................................................24 1 PRELIMINARY STATEMENT Intervenor-Respondent Emmelyn Logan-Baldwin (“Logan-Baldwin”) submits this brief in opposition to the appeal by the State of New York and the New York State Police (collectively, “State Police”) of the Decision and Order of the Appellate Division, Fourth Department, entered June 18, 2010 (the “Order”), whereby the Appellate Division reversed, in a 3-2 decision, an order of the Supreme Court, Monroe County (Evelyn Frazee, J.). Plaintiff Betty Kimmel (“Ms. Kimmel”), a former New York State Trooper, brought this case against the State Police pursuant to New York Human Rights Law and alleged that she was subjected to sexual discrimination, sexual harassment and retaliation by her fellow State Troopers culminating in a physical assault by of those State Troopers. Although Ms. Kimmel obtained a jury award of $798,000, the trial court held that the Equal Access to Justice Act (“EAJA”), Article 86 of the CPLR, was inapplicable to this case and denied Kimmel’s and her attorney Logan-Baldwin’s motions for attorneys’ fees provided for by the EAJA. The Appellate Division reversed, with the majority correctly holding that Kimmel and Logan-Baldwin are entitled under the plain language of the EAJA to recover attorneys’ fees and expenses incurred in pursuing the sex discrimination action against the State Police. The Appellate Division specifically rejected the State Police’s argument that the EAJA only applies to CPLR Article 78 proceedings and declaratory 2 judgment actions, as opposed to “any civil action” as the statute expressly provides. The Appellate Division also correctly concluded that the legislative history of the EAJA reveals no legislative intent to exclude this action from the purview of the statute. No motion for leave having been made or granted with respect to any subsequent orders in this litigation, the June 18, 2010 Appellate Division Order is the sole order before this Court. The Order was correct in all respects and should be affirmed. 3 QUESTIONS PRESENTED QUESTION 1: Was the Appellate Division correct in holding that the New York State Equal Access to Justice Act applies to a civil action successfully brought by a former State Trooper against the State Police alleging sexual harassment and discrimination, rather than being applicable only to Article 78 proceedings and declaratory judgment actions challenging administrative actions of the State in Article 78 and like proceedings? ANSWER: Yes. The Appellate Division correctly held that the EAJA applies to the action brought by the former State Trooper because the statute “unambiguously applies to ‘any civil action brought against the state,’” and nothing in the language of the EAJA limits its application to Article 78 proceedings and other proceedings challenging administrative actions. QUESTION 2: Was the Appellate Division’s decision consistent with the purpose and spirit of the EAJA? ANSWER: Yes. The Appellate Division correctly recognized that the EAJA “seeks to promote equal justice by authorizing an award of attorneys’ fees and other reasonable expenses incurred by prevailing parties in civil proceedings,” and application of the EAJA to this case is consistent with that purpose. QUESTION 3: Did the Appellate Division correctly hold that the legislative history of the EAJA reveals no clear legislative intent to exclude a civil sex 4 discrimination action by a former State Trooper against the State Police from the purview of the statute? ANSWER: Yes. The Appellate Division correctly held that although defendants contend that the Legislature did not intend the EAJA to apply to actions seeking monetary damages for alleged sexual harassment and discrimination under the Human Rights Law, the EAJA contains no such exceptions and the legislative history demonstrates no intent to exclude actions such as the one at issue. SUMMARY OF ARGUMENT The plaintiff in this case is a former New York State Police officer who was subjected to a course of extraordinary and egregious sexual harassment and an assault by a fellow police officer during her 14-year term of employment with the State Police Department. As a result of the hostile work environment, Ms. Kimmel suffered a disability which required that she retire and in 1995 commenced an action under the Human Rights Law against the State Police. During the course of the litigation, the Appellate Division, Fourth Department found that the State Police had consistently thwarted or delayed disclosure, repeatedly ignored and disobeyed court orders, and attempted to relitigate issues. The Fourth Department held that the conduct of the State Police required that its answers be stricken. In 2007, a jury returned an award of $798,000 for Ms. Kimmel. 5 Ms. Kimmel and her former counsel have applied for legal fees under New York’s Equal Access to Justice Act (EAJA), the purpose of which is to provide access to justice to people of limited means who are challenging unjustifiable actions of the State. Not only does this case fall within the provisions of the EAJA, but this case exemplifies the purpose of the statute.. The Appellate Division correctly held that “under a plain reading of the statute, the EAJA applies to this action.” The statute unambiguously applies to “any civil action brought against the state” and precludes recovery of fees in only two situations: where counsel fees are otherwise provided for and actions brought in the Court of Claims. Here, Ms. Kimmel indisputably litigated and prevailed in a “civil action brought against the state.” Also indisputable is that neither of the two statutory exceptions contained in the EAJA applies. The statute pursuant to which Ms. Kimmel brought the claim, Human Rights Law, does not “otherwise specifically provide” for counsel fees, and the case was properly commenced in Supreme Court rather than the Court of Claims. Further, the State Police do not claim that its conduct was substantially justified. The State Police advocates for “strict construction” of the EAJA, but what the State Police actually asks this Court to do is to limit the scope of recovery under the statute because it asks the Court to read words into the statute that do not appear in the relevant statutory provisions. The State Police argues that the EAJA 6 applies only to review of administrative decisions by inserting words such as “administrative” and “agency” when paraphrasing or summarizing CPLR §§ 8601 and 8602. The State Police also urges this Court to adopt a definition of “judicial review,” which would limit the application of the statute to cases involving the review of administrative actions rather than accept the meaning of the phrase as it has been used by the Court of Appeals in the exact context judicial review is to be interpreted here. More than 30 pages of the State Police’s Brief are dedicated to the legislative history of the EAJA, but nothing in that discussion demonstrates an intent by the Legislature to bar recovery of fees in cases such as this one. In fact, though some of the early EAJA bills were more restrictive in scope and much of the lobbying efforts focused on the implications for small businesses, the legislative history of the 1989 EAJA bill – the version that became law – demonstrates that actions for compensatory damages were contemplated and that indigent plaintiffs who otherwise would not be in a position to match the State’s litigation resources – plaintiffs such as Ms. Kimmel – are clearly the intended beneficiaries of the statute. The irony is not only in the State Police’s arguments for strict construction of the statute on the one hand and insertion of substantial limitations that do not 7 appear in the language of the statute on the other. The State Police also claims that the EAJA applies to Article 78 proceedings and declaratory judgments only and not compensatory actions, but cites this Court’s statement in Wittlinger v Wing, 99 NY2d 425 (2003), which contemplates that the statute was designed to help litigants entitled to “potential damage awards.” Furthermore, the State Police argues that this is not the type of case where a litigant needs to be incentivized by the prospect of attorneys’ fees to bring a claim against the State, but readily recognizes that Ms. Kimmel obtained a damages award of $798,000 only after many years of litigation causing her to incur over $1,000,000 in attorneys’ fees and expenses. No reasonable attorney would take a case knowing that the State of New York is able to use its full resources to cause the plaintiff’s legal fees to exceed the value of the case. From frustrating Ms. Kimmel’s discovery efforts to the point of warranting the striking of its answer, to asserting and abandoning over a period of years several arguments relating to Ms. Kimmel’s net worth, and to pursuing numerous meritless appeals, the State Police’s conduct throughout this case has been as indefensible as the conduct Ms. Kimmel was subjected to while she was a State Trooper. This is precisely the type of conduct the EAJA seeks to discourage and a reversal of the Appellate Division’s decision would send the opposite message. If the State is permitted, without the risk of having to reimburse prevailing parties for 8 fees, to prolong defense of indefensible actions and take advantage of the disparity between its economic resources and those of potential litigants, the inevitable result will be fewer meritorious claims brought and no remedy for many low income plaintiffs. The statutory language, the purpose and spirit of the statute, this Court’s precedent and fundamental equitable principles all require an affirmance. COUNTER-STATEMENT OF FACTS Ms. Logan-Baldwin presents additional detail regarding the factual background and history of this case because such information is essential to understanding how an award of legal fees here fits within the language of the EAJA and fulfills its purpose. The facts detailed below regarding the conduct of the State Police in this litigation, including its obstruction of discovery to the point of its Answers being stricken, refusal to consider settlement of an egregious case of sexual harassment in the work place despite repeated adverse decisions, and the challenge to Ms. Kimmel’s financial eligibility without a reasonable basis in law or in fact, demonstrate precisely why it is imperative that plaintiffs such as Ms. Kimmel can recover under the EAJA. A. The harassment and discrimination endured by Ms. Kimmel during her employment as a State Trooper. Ms. Kimmel’s Complaint alleged that she was subjected to sexual discrimination, sexual harassment, retaliation and an assault arising out of her employment as a State Trooper, in violation of the Human Rights Law 9 (see generally Supp. App. [“SA”]-1-46). The allegations in the Complaint must be deemed as true because, in 2001, the Appellate Division struck the Answers of the State Police Defendants on the ground that they “have attempted to relitigate issues and repeatedly disobeyed discovery orders of Supreme Court and [the Appellate Division]” (A-296, Kimmel v State, 286 AD2d 881, 883 [4th Dept 2001]). By way of background, the court in United States v State of New York, 475 F Supp 1103 (NDNY 1979), held that the State Police had excluded women from employment as State Troopers in violation of Title VII of the Civil Rights Act of 1964 (see SA-49). As a result of that decision, the Police Academy began to admit and train women who would thereafter compete for State Police jobs (see id.). On July 1, 1980, shortly after Ms. Kimmel successfully completed her Police Academy training, Ms. Kimmel’s first assignment by the State Police was to the State Police Station located in Bath, New York (see SA-6). Later, on January 4, 1985, Ms. Kimmel was transferred to the State Police Station in Brockport, New York (SA-11). From the time of her first assignment to the date of Ms. Kimmel’s retirement in 1994, she was subjected to sexual discrimination, sexual harassment and retaliation by various state troopers and other state employees on an on-going basis (see SA-6-19). Ms. Kimmel was the target of repeated sexually explicit comments and suggestions that she perform sexual acts 10 with various male employees (see id.). Her co-workers repeatedly posted lewd and offensive cartoons, some of which portrayed Ms. Kimmel engaged in various sex acts with her husband, State troopers and other state employees (see SA-32-46 [Exhibits 2-15 to the Complaint]). The State Police officers engaged in various other acts of harassment which were designed to humiliate Ms. Kimmel: shaving cream was sprayed in her locker, the lock on her locker was glued together, her locker was tipped (so that when she opened it, the contents would fall out on her), saran wrap was placed underneath the toilet seat in her locker room (so that if she used the toilet, she or her clothes would get soiled), and the crotch of her uniform pants was cut out (see SA-7; SA-11). Although Ms. Kimmel continuously reported these and other incidents of harassment to her Station supervisors and the Troop Commander (SA-9-11), the harassment increased and Ms. Kimmel’s superior officers retaliated against her because of her complaints (see SA-8; SA-11). On one occasion it was suggested that she “try to get along better with the guys” (SA-10). In February 1993, an on-duty state trooper repeatedly punched Ms. Kimmel in the head as she was finishing her shift (SA-14-15). The physical assault on Ms. Kimmel resulted in Emergency Room treatment and six stitches in her face (SA-16). One of Ms. Kimmel’s superiors suggested that she lie to medical workers about the cause of her injuries – to tell them she slipped on ice (see id.). As a 11 result of being beaten, Ms. Kimmel was reprimanded by a first deputy superintendent who concluded that her conduct should result in her forfeiting five days’ vacation and being formally censured (see SA-18). Ms. Kimmel requested a formal hearing on the matter, but was denied the opportunity to have counsel present and eventually was forced under duress to accept the censure and loss of vacation pay – notwithstanding the fact that she was the victim of an unprovoked attack by a fellow police officer (see SA-18-19). Upon Ms. Kimmel’s return to work, her fellow male employees treated her with open hostility (see id.). She became depressed and suicidal (see SA-19), and eventually was forced to take disability retirement because of the conduct of the State Police (see SA-19-20). B. The conduct of the State Police during the nineteen-year litigation resulted in sanctions, the striking of the Answers and condemnation by the courts. On May 24, 1995, Ms. Kimmel commenced a lawsuit against the State Police based upon the sexual harassment, abuse and assault outlined above (see SA-1-46). Rather than attempting to rectify the wrongful conduct Ms. Kimmel had suffered over the 14-year period of her service as a State Trooper or at least discussing the possibility of settlement, the State Police engaged in what the Fourth Department characterized as “obstructionist and delaying tactics,” 12 ignoring and disobeying court orders, relitigating issues and taking positions without a substantial basis from 1995 to 2013. In May 1999, the Appellate Division held that the trial court improperly reconsidered the State Police’s arguments in opposition to certain of Ms. Kimmel’s discovery demands because the trial court had impliedly rejected those arguments in unappealed orders issued years prior (see Kimmel v State, 261 AD2d 843, 844 [4th Dept 1999]). The Appellate Division stated its disapproval of the State Police’s dilatory tactics as follows: We take this occasion to note our strong disapproval of the obstructionist and delaying tactics carried out by defendants and tolerated by the court. This action was commenced four years ago and is still in the initial stages of discovery. We urge the court to move this matter expeditiously. (id. at 845). The Appellate Division directed the State Police to comply with the discovery demands served almost two years prior (the “May 1999 Order”) (id. at 845). In December 1999, the State Police appealed an order of the trial court which had conditionally ordered that its Answers be struck unless it complied with the Appellate Division’s May 1999 Order (see A-214d-214e, Kimmel v State, 267 AD2d 1079, 1079-1080 [4th Dept 1999]). The Appellate Division affirmed the Supreme Court’s order, although extending the deadline for the State Police to comply with discovery by 30 additional days (267 AD2d at 1080-1081). In so 13 doing, the Appellate Division made the following observations regarding the discovery tactics used by the State Police: Since the inception of this action, defendants have completely resisted plaintiffs’ requests for disclosure, repeatedly ignored and disobeyed court orders, and consistently thwarted or delayed disclosure by raising various objections and privileges. . . . Under the circumstances, the court did not abuse or improvidently exercise its discretion in entering a conditional order striking defendants’ answers in the event that defendants persist in disobeying our order. (id. at 1080-1081). In 2001, the Appellate Division struck the Answers of the State Police, commenting: Despite our express mandate to turn over all documents identified in plaintiffs’ discovery demand, the State Police defendants brought this current motion four days after our orders were entered on the subsequent appeals. The State Police defendants are prohibited by the law of the case from raising the CPLR 3101 privileges. In any event, although privileges need not be raised within 20 days of service of a notice for discovery, the State Police defendants may not raise them almost five years later, particularly after they have on prior occasions asserted privileges and objections to disclosure. (A-295, Kimmel v State, 286 AD2d 881, 882-883 [4th Dept 2001] [citations omitted, emphasis added]). The Appellate Division struck the Answers based upon the State Police’s disobeying the orders of the trial court and the Appellate 14 Division, and stated as follows: In this case, the State Police defendants have attempted to relitigate issues and have repeatedly disobeyed discovery orders of Supreme Court and this Court. “If the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity” (Kihl v Pfeffer, supra, at 123). We note that the issue of damages remains to be resolved. (A-296, 286 AD2d at 883). Notwithstanding the Appellate Division’s condemnation of relitigation of issues, the State Police then moved to reargue or for leave, which was denied (see Kimmel v State, 2001 WL 1656981, at *1 [4th Dept Nov. 29, 2001]). The State Police Defendants then sought a protective order eliminating discovery because the Answers were stricken, or in the alternative, an order requiring the plaintiff to sign a confidentiality agreement. The Appellate Division ordered that discovery proceed, but required that Ms. Kimmel execute a confidentiality agreement (see Kimmel v State of New York, 302 AD2d 908 [4th Dept 2003]). After the Answers were stricken, Ms. Logan-Baldwin attempted to settle the case and Justice Lunn agreed to assist (see SA-60). As a part of that effort, Ms. Kimmel offered to settle for compensatory damages in the sum of $1,526,617.00 despite having also made a claim for punitive damages in the sum 15 of $1,000,000 (see id.). After an extended period, Justice Lunn informed Ms. Logan-Baldwin that the State Police would not make any settlement offer then or in the future (see SA-61). In December 2003, the Appellate Division affirmed an order dismissing the punitive damages claim (see Kimmel v State, 2 AD3d 1341 [4th Dept 2003]). By order dated March 19, 2004, the Appellate Division affirmed the denial of the State Police’s motion to dismiss the complaint (Kimmel v State, 5 AD3d 1018 [4th Dept 2004]). Notwithstanding the fact that the only outstanding claim against the State Police was for compensatory damages and the fact that the motion to dismiss had been denied, the State Police made no attempt to settle. In 2005, the State defendants moved for costs and sanctions against Logan- Baldwin for her alleged frivolous conduct in filing a motion seeking various forms of relief on behalf of Ms. Kimmel. The trial court granted the motion (see Kimmel v State, 9 Misc 3d 1102[A], 2005 NY Slip Op 51370[U] [Sup Ct, Monroe County 2005]), but the Appellate Division reversed, holding that “the motion made by appellant on behalf of plaintiffs was not ‘completely without merit in law’” (see A-139-140, Kimmel v State, 38 AD3d 1155 [4th Dept 2007] [noting in dicta the “acrimonious nature of the litigation”]). 16 On March 26, 2007 – approximately twelve years after Ms. Kimmel commenced this action – the trial court entered judgment in favor of Ms. Kimmel following a jury trial in the amount of $721,511.42 (A-135-137). Defendants appealed the judgment, alleging that Ms. Kimmel’s Human Rights Law claims were time-barred, but the Appellate Division unanimously affirmed the judgment, holding that: [P]laintiff has alleged a continuing violation based on the allegations of “ ‘specific and related instances of discrimination [that were] permitted by [defendants] to continue unremedied for so long as to amount to a discriminatory policy or practice,’ “ and thus the three- year limitations period did not begin to run until the last discriminatory act, which allegedly occurred in December 1994. (see A-141-142, Kimmel v State, 49 AD3d 1210, 1211 [4th Dept 2008]). The State Police applied for leave to appeal and this Court denied the application on finality grounds (see A-138, Kimmel v State, 11 NY3d 729 [2008]). C. The Appellate Division held that the EAJA applied to this case. In 2008, Ms. Kimmel and Ms. Logan-Baldwin filed their respective applications for attorneys’ fees and expenses relating to the underlying litigation pursuant to Article 86 of the CPLR (A-16). The trial court denied the application and held that “the EAJA does not apply to a situation where a plaintiff has recovered compensatory damages for tortious acts of the State and its employees” 17 (A-16, see also A-9-13). In 2010, the Appellate Division, with two Justices dissenting, reversed the trial court’s determination that Article 86 did not apply. The majority held that the EAJA applied to “any civil action” against the State, including this case, and remitted the matter to the trial court for a determination as to the amount of attorneys’ fees (see A-1054-1065, Kimmel v State, 76 AD3d 188 [4th Dept 2010]). D. The State made various arguments regarding the financial eligibility of Ms. Kimmel which were eventually abandoned except for the argument which was eventually found by the Appellate Division to be without substantial basis in law or in fact. On remand, the parties stipulated to the amount of the attorneys’ fees but the State Police nonetheless opposed an award. The State Police did not claim that any of its conduct was substantially justified or that any special circumstances rendered the award unjust in this case. Its sole claim was that Ms. Kimmel had not met her burden of establishing that, at the time the action was commenced, her net worth was less than $50,000 (see CPLR § 8602 [d][i]). Initially the State Police challenged Ms. Kimmel’s financial eligibility on the ground that the bankruptcy petition submitted by Ms. Kimmel to show her financial condition did not include her husband’s Kodak pension (A-1071-1073). Ms. Kimmel’s counsel and counsel for Ms. Logan-Baldwin argued that the husband’s pension should not have been included in the assets because only the assets of the individual seeking the award should be considered (see A-1073). 18 The State Police then abandoned the claim that Mr. Kimmel’s pension should be attributed to his wife’s net worth, and, for the first time, argued that the present value of Ms. Kimmel’s own disability pension – which she receives as a result of the very misconduct that led to this case – should be included in the calculations (see A-1073-1074). The State Police submitted an affidavit from an economist as to the present value of the pension in support of this position (see A-1074). This newly-raised argument required Ms. Kimmel and Ms. Logan-Baldwin to retain a Certified Public Accountant and submit additional affidavits and briefing through February 2013 (see A-1074-1075). The trial court rejected the argument that the disability pension should be included in the net worth calculation as being a “totally new position,” “not anticipated or invited,” “not compliant with accepted rules of pleadings” and “prejudicial,” and therefore “waived” (A- 1078-1079). The trial court also held that were it to reach the issue of whether the disability pension should have been included in the calculation of the net worth, it would have found the contention without merit. The State Police then appealed and abandoned its prior arguments regarding both the inclusion of Mr. Kimmel’s Kodak pension and Ms. Kimmel’s disability pension. The State Police argued only that Ms. Kimmel’s proof of the fact that her assets were less than $50,000 was insufficient (see A-1050). The State Police did not contend that Ms. Kimmel’s net worth actually exceeded $50,000 but only that 19 the form of the proof was inadequate. The State Police contended that Ms. Kimmel must provide an integrated balance sheet with an affidavit from a Certified Public Accountant that the review complied with generally accepted accounting principles (GAAP) (see A-1051). In March 2014, the Appellate Division affirmed the trial court’s decision (see A-1050-1052, Kimmel v State, 115 AD3d 1323 [4th Dept. 2014]). The court held that the bankruptcy petition and other information provided by Ms. Kimmel was sufficient and specifically rejected the contention by the State Police that to prove that a person with less than $50,000 in assets must retain a CPA and provide a financial statement in accordance with GAAP. In rejecting those contentions, the Appellate Division held that the State “only alleged technical deficiencies in plaintiff’s proof” and observed that “‘the EAJA is meant to open the doors of the courthouse to parties, not to keep the parties locked in the courthouse disputing fees well after the resolution of the underlying case’” (A-1052, 115 AD3d at 1325 [citing Sosebee v Astrue, 494 F3d 583, 588-589 [7th Cir 2007]). The Appellate Division further held that the State Police’s position on appeal was “not ‘substantially justified,’ i.e., it did not have ‘a reasonable basis both in law and fact,’” and awarded Ms. Kimmel and Ms. Logan-Baldwin attorneys’ fees, costs and disbursements incurred in defending the appeal (see id.). 20 On August 6, 2014, the State Police appealed as of right pursuant to CPLR § 5602(d), Supreme Court’s final order dated July 14, 2014, which awarded Logan-Baldwin attorneys’ fees and costs in the amount of $497,624.04 (see A-1041), and which brought up for review the Appellate Division’s 2010 Decision holding that the EAJA applied to this case (see A-1054-1065, Kimmel v State, 76 AD3d 188). The State Police did not move for leave to appeal the Appellate Division Decision determining that Ms. Kimmel was financially eligible under EAJA. 21 ARGUMENT POINT I THE APPELLATE DIVISION CORRECTLY HELD THAT UNDER A PLAIN READING OF THE STATUTE, THE EAJA APPLIES TO THIS ACTION The plain language of a statute, when clear and unambiguous, is the best evidence of legislative intent and must be given effect (see Matter of Polan v State of N.Y. Ins. Dept., 3 NY3d 54, 58 [2004] [A “statute’s plain language is dispositive.”]; Riley v County of Broome, 95 NY2d 455, 463 [2000] [“As a general rule, unambiguous language of a statute is alone determinative.”]). Here, the Appellate Division correctly held that under a plain reading of the EAJA, this case falls comfortably within the provisions of EAJA, and the State Police’s proposed alternative interpretation – limiting the applicability of the EAJA to Article 78 proceedings and declaratory judgment actions only challenging administrative actions – is contrary to basic statutory construction principles, Court of Appeals precedent and the purpose of the EAJA. A. The plain language of the EAJA unambiguously demonstrates that the EAJA applies to this case. The EAJA expressly applies to “any civil action brought against the state” “except as otherwise specifically provided by statute.” CPLR § 8601[a][emphasis 22 added]. The entirety of the relevant portion of CPLR § 8601[a] states: [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][emphasis added]. The phrase “any civil action” is qualified only by the requirement that the action be “brought against the state” and that the fees and expenses are not “otherwise specifically provided by statute.” Here, Ms. Kimmel successfully brought a civil action against the State Police pursuant to New York Human Rights Law (Executive Law Art. 15) which does not provide for recovery of fees and expenses. Thus, the Appellate Division correctly held that this action does not fall within the statutory exception in CPLR § 8601(a) (see Kimmel, 76 AD3d at 192). The Appellate Division also correctly held that the only other statutory exception, for “action[s] brought in the court of claims,” (CPLR § 8602[a]) is also inapplicable because Kimmel commenced her action in Supreme Court (id.). The State Police does not argue, and did not argue below, that its position was substantially justified or that special circumstances make the award unjust in this case. Therefore, Ms. Kimmel is entitled to have her legal fees paid under the EAJA. 23 In an attempt to avoid its statutory duty to pay legal fees, the State Police relies on two strategies. First, in summarizing or referring to the language of the statute, the State Police repeatedly, and erroneously, add the words “administrative” or “agency” – words that do not appear in CPLR §§ 8601 or 8602(a). See Point I.B below. Second, the State Police ignores the meaning of the phrase “any civil action,” and focuses much of its argument on the phrase “judicial review” contained in CPLR § 8602(a). CPLR § 8602(a) provides the definition of an “action” for EAJA purposes: “Action” means any civil action or proceeding brought to seek judicial review of an action of the state as defined in subdivision (g) of this section, including an appellate proceeding, but does not include an action brought in the court of claims. (CPLR § 8602[a]). The State Police repeatedly argues that “judicial review” limits the definition of “any civil action” to “a court’s review of a lower courts or administrative bodies factual or legal findings” (Appellants’ Br. at 13; see also id. at 8, 11, 12, 14, 17, 25, 29, 31, 32, 38, 42, 43, 45, 47, 59, 68 [referring to “judicial review” as limited to review of agency or administrative determinations or actions]). In other words, its position is that the only interpretation of “judicial review” that falls within the purview of the EAJA is a court’s review in a declaratory judgment action or a proceeding under Article 78 of the CPLR challenging an administrative or agency action. 24 In support of this position, the State Police claims that judicial review is a “well-defined term of art and only cites for that proposition the third definition of “judicial review” appearing in Black’s Law Dictionary and the definition of that term from a 1969 edition of Ballantine’s Law Dictionary (see Appellants’ Br. at 13). Although dictionary definitions may supply guidance “in determining the sense with which a word was used in a statute . . . they are not controlling” (McKinney’s Cons Laws of NY, Statutes § 234). And they certainly do not create a “well-defined term of art in law” and are not controlling, authoritative or persuasive where, as here, the highest court in the state has used the phrase, in precisely the applicable context, differently from an alternative definition in a dictionary. In Pan American World Airways, Inc. v. New York State Human Rights Appeal Board, 61 NY2d 542 (1984), this Court used the term “judicial review” to refer to review by the courts, or the judicial branch of government – a broader and more generally accepted meaning of the term than that advocated by the State Police. Pam American involved a claim under the Human Rights Law – the exact statute under which the claim here was commenced (see Pan American, 61 NY2d at 548). Specifically, this Court stated that, “[g]enerally, the remedies of administrative review through the Human Rights Division or judicial review are mutually exclusive” (id., citing Executive Law § 297[9]). The mutually exclusive 25 remedies referred to are those set forth in Executive Law Section 297, which provides that a claimant may either pursue a remedy in the administrative forum by filing a complaint with a local Human Rights Commission, or opt to pursue their cause of action “in a[] court of appropriate jurisdiction” (see Executive Law § 297[9]). This Court thus used the term “judicial review” to mean review by the court system of a claim brought in an “action under the Human Rights Law in State court” which is precisely the situation here (Pan American, 61 NY2d at 548- 549). Pam American refutes the claim by the State Police that “cases seeking compensatory damages for state agency officials’ alleged discriminatory or harassing conduct in violation of Human Rights Law . . . do not involve any ‘judicial review’ of state agency action” (Appellants’ Br. at 17) . This Court’s usage of the phrase “judicial review” in Pam American – i.e. meaning review by the court system in an action, as opposed to proceedings before administrative bodies – is also the only application that makes sense in the context of the language of CPLR § 8602(a). By specifying that “actions” for which fees and expenses are recoverable include “proceedings . . . brought to seek judicial review,” i.e. review by the court system, the Legislature clarified that fees and expenses incurred in administrative proceedings are not recoverable under the statute. 26 B. Nothing in the text of the EAJA limits recovery of attorneys’ fees to CPLR Article 78 proceedings or to declaratory judgment actions and reading in such a limitation is contrary to settled rules of statutory construction. The limitation the State Police reads into the EAJA – that the statute somehow applies “only to Article 78 and other like proceedings” (Appellants’ Br. at 17) – is not found in the statute, and thus, the State Police’s criticism that the Appellate Division “ignored the express language . . . limit[ing] the scope and applicability of the EAJA to those actions seeking ‘judicial review’ of agency determinations” (Appellants’ Br. at 11) (emphasis added) is unjustified. Section 8602(a), which refers to judicial review, does not contain the words “administrative,” “agency” or any others that limit the definition of “action” to review of administrative proceedings. The repeated references to such phrases in the State Police’s brief without specifying that the phrases are not in the statute are inaccurate, and the Appellate Division correctly held that “there is nothing in the text of the EAJA that limits recovery of attorneys’ fees to CPLR [A]rticle 78 proceedings or to declaratory judgment actions.” (Kimmel, 76 AD3d at 192). Further, limiting the recovery of legal fees to the review of the actions of an administrative body is contrary to the plain meaning of the phrase “any civil action.” The phrase, as it appears in CPLR § 8602(a), is undeniably broad and to interpret it as meaning only declaratory judgment actions challenging state action would drastically curtail the phrase and render it applicable only to rare cases. 27 The circumstances under which a declaratory judgment action can be brought to seek review of a state administrative action are extremely narrow because generally such challenges must be brought by way of an Article 78 proceeding (see Greystone Mgt. Corp. v Conciliation and Appeals Bd. of City of New York, 62 NY2d 763, 765 [1984] [“Generally, a declaratory judgment action is not the proper vehicle to challenge an administrative procedure . . . .”]; Morgenthau v Erlbaum, 59 NY2d 143, 150 [1983] [“Declaratory relief . . . generally seeks a determination of rights before a ‘wrong’ occurs . . . .”]; One Niagara LLC v City of Niagara Falls, 78 AD3d 1554, 1555 [4th Dept 2010] [“[A] declaration is not an available remedy for challenging an administrative determination.”]). A declaratory judgment action is only proper to test the constitutionality of legislative enactments (see Top Tile Bldg. Supply Corp. v New York State Tax Comm., 94 AD2d 885 [3d Dept 1983]). Hence, the State Police effectively asks this Court to interpret “any civil action” in CPLR § 8602(a) as limited to “any declaratory judgment action based on a constitutional challenge of an agency’s adoption of regulations.” To read such a substantial limitation into the statute is contrary to the settled rule of statutory construction that precludes an important exception or limitation from being read into a statute as an intrusion on legislative authority. Section 74 of 28 New York Statutes provides: A court cannot by implication supply in a statute a provision which it is reasonable to suppose the Legislature intended intentionally to omit; and the failure of the Legislature to include a matter within the scope of an act may be construed as in indication that its exclusion was intended. (McKinney’s Cons Laws of NY, Statutes § 74). In other words, “the failure of the legislature to include a term in a statute is a significant indication that its exclusion was intended” (Commonwealth of Northern Mariana Islands v. Canadian Imperial Bank of Commerce, 21 NY3d 55, 60 [2013]; see also Pajak v Pajak, 56 NY2d 394, 396-97 [1982]). Here, to infer an intent that “civil action” in 8602(a) only refers to an extremely limited category of civil actions would be contrary to that principle. By not including language limiting the right to recover fees only to challenges of “agency” or “administrative” decisions, the Legislature must be presumed to have intentionally intended to omit such limitations (see Commonwealth of Northern Mariana Islands, 21 NY3d at 60 [interpreting the omission of the word “control” from CPLR § 5225(b) as an indication that “possession or custody” requires actual possession]). Further, Section 74 of New York Statutes not only precludes insertion of provisions reasonably presumed to be omitted by the Legislature, but it also precludes inferring an exclusion where no express exclusion appears and the 29 circumstances indicate that the subject was intended to be included. As the commentary explains: The nature and language of an act and the surrounding circumstances may be such that it can be argued with considerable force that the failure to exclude expressly a certain matter from the operation of a statute indicates that it was intended to be included. * * * [W]hen the Legislature by the use of general language has given an act a general application, the failure to specify particular cases which it shall cover does not warrant the court in inferring that the Legislature intended their exclusion. On the contrary, in such cases, if the Legislature did not intend the act to apply to such cases, “it would have been easy to have said so.” (McKinney’s Cons Laws of NY, Statutes § 74). Here, the Legislature’s use of the general phrase “any civil action” in CPLR § 8601 without specifying that specific types of certain civil actions to fall within the purview of the statute demonstrates that it intended the scope of Article 86 to be broad. Significantly, if the Legislature intended to limit the civil actions for which fees are recoverable under § 8602(a) to those involving judicial review of “administrative proceedings,” it would have done so. The Legislature certainly used that phrase in other parts of Article 86. See CPLR § 8605(b) (“Nothing contained in this article shall be deemed to authorize the institution of a civil action for the sole purpose of obtaining fees incurred by a party to an administrative proceeding.”). 30 Furthermore, limiting the words “any civil action” to the review of the actions of administrative bodies is also inconsistent with the statute’s applicability to “review of an action of the state as defined in subdivision (g)” of CPLR § 8602 (CPLR § 8602[a]). Subdivision (g) defines “state” as “the state or any of its agencies or any of its officials acting in his or her official capacity” (CPLR § 8602[g] [emphasis added]). A party in an Article 78 proceeding must be a “body or officer[,]” which includes “every court, tribunal, board, corporation, officer, or other person, or aggregation of persons, whose action may be affected by a proceeding under this [A]rticle.” (CPLR § 7802[a]). In other words, an Article 78 proceeding may not be brought against the state because it is neither a “body [n]or officer” (see In re Capruso v New York State Police, 300 AD2d 27, 28 [1st Dept 2002] [finding that the State is “not a ‘body or officer’ against whom an [A]rticle 78 proceeding may be brought”]; Ferrick v State of New York, 198 AD2d 822, 823 [4th Dept 1993] [same]). The EAJA, on the other hand, applies to actions against the state as well as its agencies and officials. Therefore, the scope of the EAJA cannot be confined to Article 78 or like proceedings, as the State Police advocates. If the statute were so limited, the Legislature would not have included “the state” as a party under CPLR § 8601[a]. Finally, limiting the definition of any civil action to the review of administrative proceedings is completely contrary to the Legislature’s express 31 intent in CPLR § 8600 that the statute be “similar” to its federal counterpart. The introductory provision to the EAJA – CPLR § 8600 – states: It is the intent of this article, which may hereafter be known and cited as the “New York State Equal Access to Justice Act”, 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). Notably, the 1990 amendment to CPLR § 8600 replaced the incorrect citation contained in CPLR § 8600 (5 U.S.C. § 504),1 with the correct citation 28 U.S.C. §2412(d) (the Federal EAJA), and the Governor’s memorandum approving the 1989 bill stated that “the legislative intent to follow federal case law . . . in interpreting this statute is clear” (A-541 [Bill Jacket, L 1989, ch 779 at 21]). The Legislature’s intent to model the New York EAJA after the federal EAJA is also well recognized in case law. New York precedent frequently examines federal case law when faced with EAJA cases. Although the statutes vary in some specific respects, a review of the relevant provisions makes clear how 1 5 U.S.C. § 504 is the Federal statute which permits, under certain circumstances, recovery of attorneys’ fees and costs to the prevailing party in an administrative proceeding before a Federal agency (see 5 U.S.C. § 504[a][1]). 32 similar the two statutes are with respect to their defined scope of “civil action”: (28 USC § 2412[d][1]A]) (CPLR §§ 8601; 8602[a]) Except 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 cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust. [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]). “Action” means any civil action or proceeding brought to seek judicial review of an action of the state as defined in subdivision (g) of this section, including an appellate proceeding, but does not include an action brought in the court of claims (CPLR § 8602[a]). The bolded language is literally identical in the two statutes, and the remaining portions express the same intent in slightly different ways. Both statutes provide for recovery of fees and expenses in “any civil action” (see CPLR §§ 8601[a], 8602[a]; 28 USC § 2412[d][1][A]). Both statutes also exclude tort actions – the federal EAJA by stating “(other than cases sounding in tort)” and the New York EAJA by excluding actions brought in the court of claims, which is where a tort claim against the state would have to be initiated. Both statutes also specifically 33 include under their ambit proceedings for judicial review of agency action. But, most importantly, neither statute limits its applicability to such proceedings. The parallels between the New York EAJA and its federal counterpart are unmistakable, and CPLR § 8600 expressly states that those parallels are intentional. Therefore, to interpret the New York EAJA as limited to proceedings reviewing administrative actions even though the statute does not so provide and even though the federal EAJA is not so limited would be contrary to the stated intent that the two statutes are to be read as similar. If Article 86 applied only to Article 78 or like proceedings, its scope would be drastically more narrow and it would not be “similar” to the federal EAJA. Furthermore, to the extent the New York Legislature wanted to deviate from the federal EAJA, it did so expressly. For example, Article 86 limits eligible parties to individuals with a net worth of $50,000 or less and owners of businesses with 100 employees or less, while the Federal EAJA embraces individuals with a net worth of $2,000,000 or less and businesses with 500 employees or fewer (cf. CPLR § 8602[d] with 28 USC § 2412[d][1][D][2][B]). Also, the Federal EAJA applies to actions that are brought “by or against the United States” (28 USC § 2412[d][1][A] [emphasis added]), and Article 86 only applies in to actions “brought against the state” (CPLR § 8601 [emphasis added]). By expressly choosing to narrow Article 86 in certain respects in comparison to the Federal 34 EAJA, it can be presumed that the Legislature considered all of the ways in which it could have made the statute more restrictive than the federal law, and incorporated into the new law only those changes that it deemed warranted. Hence, the Legislature did not deviate from the federal statute’s applicability to “any civil action.” C. If the EAJA applies only to Article 78 proceedings and declaratory judgment actions, the language excluding actions commenced in the Court of Claims is rendered meaningless. In addition to impermissibly reading a critical limitation into a broadly written statute, the State Police’s interpretation of the EAJA is also contrary to basic principles of statutory construction because it renders a statutory provision meaningless. The Appellate Division correctly recognized this when it held that “if the Legislature had intended the EAJA to apply exclusively to [Article 78 proceedings and declaratory judgment actions], then the language excluding actions commenced in the Court of Claims would be unnecessary inasmuch as such proceedings do not generally fall within that court’s limited jurisdiction” (Kimmel, 76 AD3d at 192). Because the provision excluding Court of Claims action cannot be reconciled with the interpretation of the statute advocated by the State Police, the decision below should be affirmed. The law requires that “legislation is to be interpreted so as to give effect to every provision” and “[a] construction that would render a provision superfluous is 35 to be avoided” (Majewski v Broadalbin-Perth Cent. Sch. Dist., 91 NY2d 577, 587 [1998]; Matter of OnBank & Trust Co., 90 NY2d 725, 731 [1997] [declining to read amendment is such a way as to render a portion of the statute superfluous]; McKinney’s Cons Laws of NY, Statutes § 98[a] [“effect and meaning must, if possible, be given to the entire statute and every part and word thereof”]). The definition of “action” in CPLR § 8602(a) expressly excludes actions “brought in the court of claims.” If the EAJA applies only to Article 78 proceedings and declaratory judgment actions – as the State Police argues – then the Court of Claims exclusion would be superfluous because neither Article 78 proceedings nor declaratory judgment actions fall within the Court of Claims’ limited jurisdiction. Article 78 proceedings must be brought in Supreme Court (see CPLR § 7804[b]) as the Court of Claims has no jurisdiction to hear declaratory judgment actions brought against the State (see Court of Claims Act § 9; Gordon v State of New York, 146 Misc. 2d 479, 480 [Ct Cl 1990] [holding that the Court of Claims has no power to issue declaratory judgments against the State]). The State Police concedes Appellate Division’s and Respondents’ point by stating that “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” (Appellants’ Br. at 19 [emphasis added]). To read the provision as merely 36 confirmatory is to render it superfluous and unnecessary, which is contrary to the rules of construction (see McKinney’s Cons Laws of NY, Statutes § 98[a]). For the Court of Claims exclusion to have meaning, the EAJA must be read as applicable to a broad range of actions and proceedings – one broad enough to include actions that could potentially be brought in the Court of Claims. POINT II THE APPELLATE DIVISION’S DECISION IS CONSISTENT WITH THE PURPOSE AND SPIRIT OF THE EAJA, WHILE THE STATE’S INTERPRETATION IS CONTRARY TO IT The Appellate Division’s decision should be affirmed because it is wholly consistent with the purpose and spirit of the EAJA. New York rules of statutory construction require consideration of the purpose of the applicable statute: “A basic consideration in the interpretation of a statute is the general spirit and purpose underlying its enactment, and that construction is to be preferred which furthers the object, spirit and purpose of the statute” (McKinney’s Cons Laws of NY, Statutes § 96; see also Hernandez v Barrios-Paoli, 93 NY2d 781, 786 [1999] [holding that in construing a statute, a court must “look at the spirit and purpose of the statute and the objectives sought to be accomplished by the Legislature”]; In re Adoption of Daniel C., 63 NY2d 927, 938 [1984] [an interpretation must not “serve to thwart the very policy considerations underlying the statute”]). 37 A. The stated purpose of Article 86. The New York State Assembly Memorandum in Support of the EAJA stated that the purpose of the bill was “[t]o encourage individuals, small businesses and not-for-profit corporations to challenge state action when it lacks substantial justification by allowing them to recover fees and litigation expenses” (A-551 [Bill Jacket, L 1989, ch 770 at 12]). In his approval memorandum of the EAJA, then-Governor Cuomo noted that: It is a worthwhile experiment in improving access to justice for individuals and businesses who may not have the resources to sustain a long legal battle against an agency that is acting without justification. (A-540 [Bill Jacket, L 1989, ch 779 at 20]). This Court has recognized the principle echoed by the Assembly that the EAJA was enacted to “improv[e] access to justice for individuals and businesses who may not have the resources to sustain a long legal battle against an agency that is acting without justification” (New York State Clinical Laboratory Ass’n v Kaladjian, 85 NY2d 346, 351 [1995], citing Governor’s Approval Mem, L 1989, ch 770). In Wittlinger v Wing, 99 NY2d 425 (2003), this Court summarized the purpose of the EAJA as follows, “[b]y allowing victorious plaintiffs to gain attorneys’ fees, the statute seeks to help those whose rights have been violated but whose potential damage awards may not have been enough to induce lawyers to fight City Hall” (Wittlinger, 99 NY2d at 431). Therefore, this Court has already 38 recognized that the EAJA is to apply to cases that have the potential to be “long legal battles” and result in awards of damages – two characteristics that are hardly descriptive of typical Article 78 proceedings and declaratory judgment actions. And if that were not persuasive enough that the limitation was not intended, Assembly sponsor Schimminger clarified in an October 4, 1989 letter to Governor Cuomo’s Counsel that “factors such as contingent fee arrangements, the novelty of a case, or the result obtained should not be used to increase the fee awarded” (S-15,2 Bill Jacket, L 1989, ch 770). Certainly, the fact that contingency agreements were contemplated indicates an expectation that the statute would apply to actions seeking monetary damages. B. The granting of fees in this case will further the purpose of the EAJA. This case exemplifies the purpose and spirit of the EAJA: it is a story of a grievously wronged individual fighting an extremely lengthy legal battle in the face of the State Police’s obstructionist and delay tactics, repeated failures to obey court orders and tireless defense of indefensible conduct. This case dramatically illustrates how the resources of the State can be used to inflate legal costs for a plaintiff and make undertaking such a case entirely impractical unless there is an opportunity to recover attorneys’ fees. 2 Annexed hereto is the “Supplement to Brief of Intervenor-Respondent Emmelyn S. Logan-Baldwin” (pages S-1 to S-16), which includes certain parts of the legislative history that did not appear in the Record on Appeal below. Ms. Logan-Baldwin respectfully requests that the Court take judicial notice of these documents pursuant to CPLR 4511. 39 The continuous harassment and discrimination that Ms. Kimmel was subjected to during more than a decade of service was so grave and extreme that even the State Police, which has displayed a willingness to raise all sorts of arguments, has not attempted to assert that the conduct was substantially justified or that there are any special circumstances that would warrant an award of fees here unjust. Rendered disabled and unable to work as a result of being assaulted and repeatedly harassed at work (see SA-19-20), Ms. Kimmel filed for bankruptcy in 1995 (A-1072). She commenced this action shortly thereafter, only for the State Police to frustrate the discovery process to such an extent that its Answers were stricken (see A-295-296). It took Ms. Kimmel 12 years to obtain a judgment following a jury trial (see A-135-137), and she has already spent another six years litigating her and her attorneys’ application for fees. Even then, the State Police defendants refused to even consider settling the case or more importantly, to compensate Ms. Kimmel for the wrong she had been done. Instead, the State Police continued to fight every step of the way (see e.g. A-138; A-141-142; A- 1041; A-1054-65; A-1050-1053; A-1071-1080). The fact that the State Police has not changed its tactics even to this very day is illustrated by its challenge to Ms. Kimmel’s financial eligibility under EAJA after she finally obtained a judgment. The State Police first claimed that Ms. Kimmel was ineligible because of her husband’s Kodak pension (A-1071-1073), 40 but it then abandoned that ground and asserted that Ms. Kimmel’s own disability pension rendered her ineligible (see A-1073-1074). The State Police then abandoned both arguments on appeal, and argued only that Ms. Kimmel was required to retain a CPA to provide a financial statement in accordance with GAAP (see A-1074-1075). The Appellate Division found that the State Police’s position on appeal was without a substantial basis in facts or at law (see A-1052). Ms. Kimmel exemplifies the individual claimant which the EAJA was intended to provide access to justice because she suffered from the unjustified conduct of the State Police and her ability to achieve a remedy would be impractical or impossible without the right to recover legal fees. There should be no concern that an affirmance of the Appellate Division here will open the State to substantial liability for legal fees. First, the EAJA applies only to a narrow class of people, i.e. with assets less than $50,000, and recovery by that narrow class of litigants is limited to persons who have been wronged by an action of the State without substantial justification. Further, the State and its agencies can control their exposure to legal fees under the EAJA by not acting without substantial justification in the first instance, but in those cases where they do so act, they can limit their liability to legal fees by promptly evaluating and settling meritorious claims – which could have been the exact result 41 here. Therefore, affirming this case need not and would not result in substantial exposure for legal fees by the State of New York. The State Police argues that “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” (Appellants’ Br. at 20). The facts of this case demonstrate the contrary. As the State Police recognizes, Kimmel and Logan-Baldwin sought a fee award of over $1,000,000 – a request based on the time required to handle the case. The parties have stipulated that the amount that will be awarded if there is an affirmance is $720,511.42 (A-1066-1067), but the lack of incentive for a private attorney to take such a case on contingency is clear whether the actual cost or the stipulated cost is taken into account. Further, because the individual must have less than $50,000 in assets to qualify for fees, a contingent fee is the only viable way for potential plaintiffs to obtain representation. Though the math seems obvious, the State Police questions “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” (Appellants’ Br. at 33). The answer is that for an attorney to accept on contingency a case where the client will be up against the State – which can use its resources to prolong the litigation for years and drive up the time required by the plaintiff’s attorney – there must be an opportunity to 42 recover fees from the State. Otherwise, the risk that fees would exceed the amount of recovery is not one worth taking. One-third of the judgment in this case, especially considering costs and expenses other than attorney time incurred during the case, would cover a fraction of the attorney time expended in fighting repeated meritless motions and obstructionist litigation tactics by the State Police. In other fact situations where the monetary recovery is much less, there would be no incentive at all to seek redress. The EAJA was enacted precisely for this type of case, to give a mistreated individual like Kimmel access to the courts. The State Police takes issue with the fact that “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” (Appellants’ Br. at 22). Regardless of how one defines “action” or “civil action,” Article 86 indisputably intends to single out the State and provides for recovery of fees only if one prevails in an action against the State. Certainly no rule exists that prohibits the Legislature from passing a statute that treats the State differently from other employers in the state. In fact the EAJA does just that – it affords certain rights to a limited class of State employees (i.e., those with limited resources) who have been mistreated by its State employer, if they are successful in their endeavor to hold the State accountable for its actions. The Fourth Department appropriately quoted Sosebee v 43 Astrue, where the Seventh Circuit recognized that “the EAJA is meant to open the doors of the courthouse to parties,” and “[t]he EAJA’s requirements must be interpreted accordingly” (Sosebee v Astrue, 494 F3d 583, 588-589 [7th Cir 2007]; see also A-1052, Kimmel v State, 115 AD3d 1323, 1325 [4th Dept 2014], citing Sosebee). To limit the EAJA’s application to Article 78 proceedings and declaratory judgment actions would only accomplish the opposite – leave claimants seeking redress under the Human Rights Law without a remedy when the State or one of its agencies ruthlessly litigates their claims without a substantial basis. The State Police also claims there is no record of fees being granted in similar cases and virtually all of the reported decisions where fees were awarded involved judicial review of actions administrative in nature (see Appellants’ Br. at 16-17). Besides having no basis in law (the absence of similar cases is of no legal significance where there are also no cases holding the statute inapplicable), the State Police’s reliance on the lack of case law is not persuasive for several reasons. First, this Court recognized in Wittlinger v Wing that the purpose of the EAJA is to allow recovery of fees by victorious plaintiffs whose “potential damage awards may not have been enough to induce lawyers to [represent them]” (Wittlinger, 99 NY2d at 431). This indicates an understanding that the plaintiffs in 44 covered actions may be seeking compensatory damages and not just a declaration or correction of an administrative decision. Second, to fall within the purview of Article 86, the State’s conduct must not only be a statutory violation (torts are excluded), but it must be “not substantially justified.” Thus, the State’s conduct must be – as it is here – more than just wrongful, and the reality is that in the vast majority of cases involving such clear statutory violations, the potential claims are settled rather than litigated for over decade. Here, the State Police inexplicably refused to even discuss settlement with Ms. Kimmel when she suggested that possibility – something we can certainly expect the State to do more routinely if the Appellate Division’s decision is reversed. The State will have little incentive to settle claims with plaintiffs who it knows lack the financial ability to litigate them if the State, as it did here, uses its full financial resources. The third reason for limited case law on the subject is that for a plaintiff to recover fees under Article 86, the fees cannot be “otherwise . . . provided [for] by statute . . . .” (CPLR § 8601[a]). Many claims against the State are based on statutes that otherwise provide for recovery of fees. For example, in Beechwood Restorative Care Ctr. v Signor, 11 AD3d 987, 989 (4th Dept 2004), affd 5 NY3d 435 (2005), the court held that a party successful in a Freedom of Information Law Act (FOIL) claim against the State could not seek fees pursuant to the EAJA 45 because FOIL articulated a stricter standard for recovering attorneys’ fees. This is undoubtedly why there is no similar case under the federal case law. Claims under Title VII of the Civil Rights Law of 1964 (the federal counterpart to the Human Rights Law) are not covered by the Federal EAJA because Title VII contains its own statutory attorney’s fees provision (see 42 USC § 2000e–5(k); Huey v Sullivan, 971 F2d 1362, 1366 [8th Cir 1992] [Federal EAJA did not apply to Title VII suit by former employee against his former employer, Health and Human Services, because “Title VII already authorized specific fee awards against the federal government” under a standard other than EAJA’s “substantially justified” standard]). The New York Human Rights Law does not contain its own attorneys’ fees provision, and thus it does not preempt Article 86’s applicability to such suits. Parties’ usual reluctance to litigate claims where the violation is as clear as here, the time it takes to litigate a civil action in Supreme Court, together with the limitations of Article 86, explains the lack of case law addressing the exact posture of this case. The lack of case law, however, should not displace the language of the statute, which unambiguously encompasses cases like this one. A reversal of the holding below would send a message to the State that it can defend indefensible actions, and do so employing meritless and unjustifiable tactics, with no purpose other than discouraging plaintiffs from commencing or pursuing lawsuits without any risk of paying the legal expenses of the wronged 46 party. It would also send a message to potential litigants and plaintiffs’ attorneys that to the extent they choose to bring claims, there will be no redress if the State chooses to pursue a litigation strategy based solely on the disparity in economic resources available to the parties, rather than the merits of the claims. In short, the purpose of the EAJA is to level the playing field so a litigant with limited resources can pursue a claim against the State. The Appellate Division’s decision must be affirmed for the statute to stay true to that purpose. POINT III THE APPELLATE DIVISION CORRECTLY HELD THAT THE LEGISLATIVE HISTORY OF THE EAJA CONFIRMS THAT THE RIGHT OF THE PREVAILING PARTY TO BE AWARDED LEGAL FEES APPLIES IN ANY CIVIL ACTION AGAINST THE STATE “[I]f the language of a statute is plain and unambiguous” – as it is here – “there is neither need nor warrant to look elsewhere for its meaning” (Roosevelt Raceway, Inc. v Monaghan, 9 NY2d 293, 304 [1961]; see also Amorosi v S. Colonie Ind. Cent. School Dist., 9 NY3d 367, 372-73 [2007]). Accordingly, upon finding that “attorneys’ fees are available to plaintiff under the plain language of the EAJA,” the Appellate Division correctly declined to rely on the legislative history of the statute to discern the legislature’s intent (Kimmel, 76 AD3d at 194). 47 Although the Appellate Division was not required to review the legislative history of the EAJA, it did so, and correctly concluded that the legislative history of the EAJA confirms that the phrase “any civil action” “means just that—any civil action, including an action seeking relief pursuant to the Human Rights Law” (Kimmel, 76 AD3d at 194). A. The statements in the Assembly Memorandum in Support of the EAJA demonstrate that the intent was for it to apply to “any civil action” – including an action under the Human Rights Law. The Assembly Memorandum in Support of the 1989 EAJA bill serves as a “reliable index to the intention of the legislators who passed the bill” (Matter of Delmar Box Co., 309 NY 60, 67 [1955]; see also Frontier Ins. Co. v State, 160 Misc 2d 437, 443 [Ct Cl 1993] [“The intent behind passage of a piece of legislation must be drawn from what the legislators ‘were aware of’ at the time they were studying the bill and casting their vote for or against its enactment.”], affd 197 AD2d 177 [3d Dept 1994], affd 87 NY2d 864 [1995]). The Support Memorandum uses the phrase “any civil action” in describing the scope of the 48 legislation as follows: In any civil action brought against the State, a court may award fees and other expenses to a party that prevails against the State where the position of the State was substantially unjustified. (A-551 [Bill Jacket, L 1989, ch 770 at 12] [emphasis added]). The Support Memorandum uses the phrase “civil action” in the following manner: [C]ertain parties who prevail in adversary adjudications and civil actions brought by or against the State of New York will be entitled to attorneys’ fees and related expenses unless the government action was substantially justified or special circumstances make an award unjust. (id.). The Support Memorandum does not contain language expressing an intention that the bill was to be limited to administrative actions. Rather, by using this clear and unequivocal language, it expressed an intention that the legislation be construed as broadly as possible in describing the cases falling under the EAJA’s purview. Further illustrative as to the legislative intent are those views which are stated during the course of the debate on the floor of the legislature (Matter of Delmar Box Co., 309 NY at 67; see also Schultz v Harrison Radiator Div. Gen. Motors Corp., 90 NY2d 311, 318-19 [1997] [“[S]tatements of legislators made during legislative debates . . . may be accorded some weight in the absence of more definitive manifestations of legislative purpose.”] [citation omitted]; Lloyd v Grella, 83 NY2d 537, 546-47 [1994] [citing and relying upon statements made 49 during New York State Senate and Assembly debates on bill ultimately enacted as Education Law § 2–a. in analysis of its legislative history]). Here, the fact that the Legislature interpreted the phrase “any civil action” as meaning “just that” is also apparent from the Assembly Debate Transcripts on the day of passage (see S-1-13, L 1989, ch 770 NY Assembly Debate Transcripts dated June 28, 1989). During the course of the debate, Assemblymember Schimminger affirmed that the phrase “any civil action” indeed means just that – “any civil action”: MR. PATAKI: Robin, “action” is defined in this as any action brought against the State? MR. SCHIMMINGER: I cannot hear you. MR. PATAKI: “Action”, as you define it, refers to any action brought against the State. Would that include, for example, the taking of property by condemnation, an action to recover reimbursement for that? MR. SCHIMMINGER: Any civil action, correct. MR. PATAKI: It would cover that? MR. SCHIMMINGER: Yes. (S-10 [emphasis added]). Thus, during the course of the debate the sponsor of the legislation again made clear that it was to apply to “any civil action,” without referencing any requirement aimed exclusively at administrative actions. 50 The debate also confirms that the 1989 bill was intended to embrace cases under the Human Rights Law, including cases involving State employees, which is the precise case here (see S-2-3). Earlier in the debate, Assemblymember Schimminger was asked by Assemblymember Healey whether the bill would provide for the right of a party to seek attorneys’ fees in the context of a “human rights application.” The exchange included the following: MR. HEALEY: If I may continue, does this apply to all State agencies? In the event there is a human rights application and the defendant is successful, would he be - the company be entitled to compensation? MR. SCHIMMINGER: A human rights activist being, I take it, a citizen of this State? MR. HEALEY: As an employee of the State to which – MR. SCHIMMINGER: The bill applies to small businesses defined as those with less than 100 employees; it applies to not-for-profit corporations, and it applies to individuals provided they have net worth, excluding their house, of under $50,000; therefore, if this human rights activist, as you call this person, fits that last category of under $50,000 of net worth, then he or she would be eligible under this bill. (S-2-3 [emphasis added]). Thus, Schimminger represented to his fellow legislators, moments before they voted in the 1989 bill, that the bill was meant to apply in the context of a human rights claim, whether it be a small business owner defending itself against a claim, or an employee of the state pursuing a claim against its state employer. 51 Schimminger later articulated the workings of the bill in a similarly broad fashion: MR. SCHIMMINGER: If it was determined that whatever that State agency is that is involved in this matter had taken actions which were not substantially justified . . . and if the small business or that citizen that you are talking about does prevail, then the small business or that individual person would be entitled to have their court costs, lawyer’s fee paid for by that agency, whatever it may be. (S-6). Thus, the Debate Transcript confirms that the Legislature intended that the scope of the EAJA would not be limited to article 78 proceedings and declaratory judgment actions – terms that nowhere appear in the statute, the Sponsor Memorandum, or the Debate Transcript. Rather, the Debate Transcript clearly demonstrates that the legislative intent was to include “any civil action” and to define any civil action as all civil actions against the State or its agencies. B. The contents of the 1989 bill jacket further support the Appellate Division’s conclusion that the EAJA is not limited to review of administrative actions. Although not as reliable a guide to legislative intent as the statements made during legislative debate, correspondence to the Governor in support of or against legislation, or statements made by the Governor in the Approval Memorandum, found in the Bill Jacket, are often considered by courts in gleaning legislative intent (see e.g. Holmes v Winter, 22 NY3d 300, 308-09 [2013], cert denied 134 S Ct 2664 [2014] [relying on views expressed by reporters in bill jacket and on 52 Governor’s approval memorandum which echoed those views]; Weiner v City of New York, 19 NY3d 852, 855 [2012] [relying on statements contained in Governor’s approval memorandum of legislation in analysis of legislation’s history]). As noted by the Appellate Division, “[a]lthough the bill jacket for the 1989 bill contains statements suggesting that the primary intent of the bill was to award attorneys’ fees in proceedings challenging agency action or inaction, there is nothing in the bill jacket that evinces a legislative intents to restrict the application of the EAJA to those types of actions . . .” (Kimmel, 76 AD3d at 195). “To the contrary, many statements contained in the bill jacket reflect a broader view of the 1989 bill” (id.). For example, after the 1989 bill had passed both the Assembly and Senate, Schimminger continued to use the phrase “civil action” without qualification in correspondence dated September 21, 1989 to then-Governor Cuomo, explaining that the bill: [W]ould 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 against the State and the court finds that the State’s position lacks substantial justification. (A-542 [Bill Jacket, L 1989, ch 770 at 6] [emphasis added]). Again, the sponsor did not use any qualifying language when speaking of “civil action” that would 53 indicate an intent to limit it to appeals from administrative determinations or proceedings. Bar associations commenting on the 1989 bill similarly interpreted it to apply to any action against the State except tort actions. In the Association of the Bar of the City of New York’s (“NYC Bar Association”) Report on Legislation, it interpreted the 1989 bill as promoting “equal justice by authorizing an award of attorney[’]s fees and other reasonable expenses incurred by prevailing parties in civil proceedings, with the exception of tort actions, against the State” (A-548 [Bill Jacket, L 1989, ch 770 at 55] [emphasis added]). The New York State Bar Association (“State Bar Association”), for its part, similarly declared in correspondence to the Governor that the bill applied “only to non-Court of Claims actions” (S-15 [Bill Jacket, L 1989, ch 770]). Further, the NYC Bar Association’s Report on Legislation noted that: While fees are currently available to parties who prevail in challenges to unjustified federal governmental action and parties who prevail against the State on federal statutory constitutional grounds, there is no State statute authorizing attorney[‘]s fees to parties who successfully contest unreasonable State actions on state law grounds. (A-549 [Bill Jacket, L 1989, ch 770 at 56] [emphasis added]). The NYC Bar Association also noted that unlike the 1989 bill, prior iterations of the bill “failed to confer any benefits on low income individuals seeking to enforce civil and 54 legal rights through the courts” (A-550 [Bill Jacket, L 1989, ch 770 at 57] [emphasis added]). The State Bar Association recognized the positive impact the adoption of the Bill would have on access to justice and declared that “[w]hile the EAJA does not remedy the overall problem of unmet legal needs, it constitutes a critical step toward opening the courthouse doors to those who otherwise would be unable to obtain judicial review” (S-15 [Bill Jacket, L 1989, ch 770]). The State Bar Association also observed that the “EAJA is consistent with New York’s long standing commitment to the fundamental principle of equal access to justice” (S-15 [Bill Jacket, L 1989, ch 770]). It did not limit its reference to “justice” as exclusively applying Article 78 proceedings and declaratory judgment actions. Governor Cuomo specifically cited to the memoranda of the State and NYC Bar Associations in his Approval Memorandum for the 1989 bill, and echoed the rationales articulated therein, noting in relevant part: It is a worthwhile experiment in improving access to justice for individuals and businesses who may not have the resources to sustain a long legal battle against an agency that is acting without justification. (A-540 [Bill Jacket, L 1989, ch 779 at 20]). Governor Cuomo expressed his satisfaction with the bill in that it set “appropriate limits on the types of individuals and organizations that may recover attorneys’ fees” as well as limits on the amount of fees that can be awarded (id.) Like Assemblymember Schimminger, the 55 Governor did not articulate that the Legislature intended to confine the application of the EAJA to Article 78 proceedings and declaratory judgment actions. C. The 1989 bill’s significant divergence from the vetoed 1982, 1983, 1984, and 1986 bills further supports the EAJA’s applicability to the present action. The State Police rely on the bills vetoed by the Governors in 1982, 1983, 1984 and 1986 as supporting their narrow interpretation of the 1989 bill, but those earlier bills actually demonstrate that the 1989 bill was not intended to be limited to administrative actions (see Kimmel, 76 AD3d at 195). The insertion of the EAJA into the CPLR, rather than in the State Administrative Procedure Act as contemplated by the earlier bills, demonstrates the Legislature’s intent that the statute would not be limited to administrative actions (see In re Grand Jury Subpoena Duces Tecum Served on Museum of Modern Art, 93 NY2d 729, 738 [1999] [noting that the law is “settled that legislative intent may be inferred from the omission of proposed substantive changes in the final legislative enactment.”]). The earlier bills, which proposed to amend the State Administrative Procedure Act, were indeed limited to cases involving “judicial review of an agency action.” The 1982 bill defined “judicial review” as “an appeal of an agency action” and defined “agency action” as “an action by a state agency [that] compels a regulated entity to act, enjoins a regulated entity from acting[,] or fines a regulated entity” (A-495 56 [1982 NY Assembly Bill A11940-A]). The 1982 bill’s definition of “regulated entity” included individuals other than employees of the State (id.) The 1983 and 1984 bills similarly defined “agency action”, but were more narrow in scope than the 1982 bill in that they applied exclusively to small businesses (see A-512-514 [1983 NY Senate Bill S434-A]; A-524-526 [1984 NY Senate Bill S9054-B]). The 1982, 1983, and 1984 bills were named “Equal Access to Justice” – a misnomer noted in then-Governor Carey’s Veto Message for the 1982 bill (see A-511 [Governor’s Veto Message at 2, 1982 NY Assembly Bill A11940-A, Veto 273 of 1982]). Governor Cuomo’s Veto Messages for the 1983 and 1984 bills pointed out that that instead of establishing a policy of enabling the poor to gain access to the judicial forum, the bills shifted the litigation costs of certain businesses to taxpayers (see A-522 [Governor’s Veto Message, 1983 NY Senate Bill S434-A, Veto Jacket, Veto 71 of 1983 at 90]; A-533 [Governor’s Veto Message, 1984 NY Senate Bill S9054-B, Veto Jacket, Veto 26 of 1984 at 14]). The 1986 bill reflected a new name that more accurately reflected its contents – “Small Business Protection From Regulatory Excesses” – and again embodied a proposed amendment to the Administrative Procedure Act which was limited to judicial review of an “agency action” as that term was defined in the earlier bills (see A-534 [1986 Senate Bill S8567-A]). Accordingly, Governor 57 Cuomo vetoed the 1986 bill due to his “previously enumerated concerns” (A-539 [Governor’s Veto Message, 1986 NY Senate Bill S8567-A, Veto 26 of 1986]). In contrast, the 1989 bill, subsequently codified as Article 86, “bears little resemblance to th[e] prior versions” of the bill (Kimmel, 76 AD3d at 194). It contains no exclusions for state employees, is available to individuals falling within the net-worth restrictions, and is not limited to judicial review of “agency actions” (and therefore does not define that term). By failing to include, in the final version of the statute, the limiting language regarding judicial review of an agency action, the Legislature necessarily intended that, under 1989 bill, the right to an award of attorneys’ fees was not to be so limited (see In re Grand Jury Subpoena, 93 NY2d at 738 [1999]). Further, the EAJA expressly states that it is be interpreted consistently with the Federal EAJA, codified at 28 USC § 2412(d) (see CPLR § 8600). The provision that is absent from the 1982, 1983, 1984, and 1986 bills, surely because they were so unlike the Federal EAJA. The intent of the Legislature, therefore, is that, with respect to Article 86, Courts in need of guidance should look to the Federal law, not to bill jackets with dissimilar bills with the same name. D. The portions of the 1989 bill jacket cited by the State Police do not support the narrow construction of the EAJA it urges. The State Police’s reliance on out-of-context snippets from the legislative history do not support its strained construction of the statute. For example, the 58 State Police cite portions of Assemblymember Schimminger’s September 21, 1989 letter to the Governor that focused on the interests of “small business owners and public interest groups” and “New York’s small businessmen and women”, which Schimminger declared are affected by “unfair agency enforcement actions” or where State agencies use their “regulatory powers” irresponsibly (A-542-543 [Bill Jacket, L 1989, ch 779 at 06-07]). Schimminger’s highlighting of the effects on certain classes of litigants that might benefit from the EAJA – i.e., small businesses and their owners – does negate the applicability of the statute to the remaining classes of litigants, such as individuals who might be the victims of actions by the State unrelated to its agencies’ enforcement of regulations. By contrast, the statements made by the NYC and NYS bar associations – which represent the bodies of attorneys who may represent all categories of litigants that might avail themselves of the EAJA (i.e., individuals, small businesses, and not-for-profits falling within the net-worth restrictions) – included references to the full scope of the EAJA. The State Police also relies on the August 31, 1989 letter of Alexander Sussman, which enclosed the NYC Bar Association’s Report, as evidence of the purported limited scope of Article 86, stating that “[i]n that letter Mr. Sussman states that ‘the legislation would provide an incentive to State agencies to reach more considered determinations’” (Br. at 46). But the State Police omit the 59 remainder of the sentence, which continues: “ . . . or to settle hopeless litigation at an earlier stage, and thus might even save the State money in the long run” (A-547 [Bill Jacket, L 1989, ch 779 at 54]). The present case falls into the second category noted by Mr. Sussman – hopeless litigation that the State could and should have settled rather than vehemently defending the State Police’s course of conduct which condoned the brazen and systematic harassment and retaliation against a female state trooper. Then-Governor Cuomo also adopted the State’s incentive to avoid “hopeless litigation” as a justification for his approval of the 1989 bill, noting his Approval Memorandum that “[i]t is a worthwhile experiment in improving access to justice for individuals and businesses who may not have the resources to sustain a long legal battle against an agency that is acting without justification” (A-540 [Bill Jacket, L 1989, ch 779 at 20] [emphasis added]). It is illogical to assume that the Governor was contemplating an Article 78 proceeding when he referred to a “long legal battle against an agency” given that “[t]he significant advantage of a special proceeding is that it is summary in nature and can usually be initiated and concluded expeditiously, without the extended discovery and motion practice that typically plagues other types of commercial litigation” (Haig, Commercial Litigation in New York State Courts, § 102:2 [3d Ed.]). 60 The emphasis placed by the State Police on the Division of Budget’s “Budget Report on Bills” (“Budget Report”) for the 1989 bill is also misplaced. Preliminarily, the Budget Report, dated July 19, 1989 (A-546), was not before the Assembly or Senate when it voted on the bill on June 28, 1989 and June 30, 1989, respectively (see A-546; S-17-18 [Bill Jacket, L 1989, ch 779 at 3-4]). Therefore, its contents cannot shed light on what the intent of Legislature was in passing the 1989 bill. Further, the Budget Report invents language that appears nowhere in the 1989 bill, further limiting any value it might have in gleaning legislative intent. The Division of Budget essentially developed not one, but two, circumstances for when litigants might seek an award of fees (i.e., where an “unjustifiable ruling” is “appealed” and where an “unfavorable ruling” is issued “without good cause”) (see A-544, §§1-2). Neither of these circumstances are articulated in the 1989 bill, which clearly states that the statute applies where fees are incurred by a prevailing party “in any civil action brought against the state, unless the court finds that position of the state was substantially justified or that special circumstances make an award unjust” (CPLR § 8601). Notably, Governor Cuomo did not cite the Budget Report in his Approval Memorandum, and the Approval Memorandum does not contain any of the invented language appearing in the Budget Report 61 (see A-540-541). Because the Budget Report deviates so drastically from the plain language of the statute, it can hardly be determinative of legislative intent. The State Police further argues that the use of the language “arbitrary and unreasonable” in the 1989 bill jacket supports the EAJA as being limited to actions seeking judicial review of state agency rulings, regulations, and procedures. However, although the standard used in certain types of article 78 proceedings is indeed “arbitrary and capricious” (not “arbitrary and unreasonable”) (see CPLR § 7803[3]), that is one of four standards that might be applied in an article 78 proceeding involving a state agency. If the use of the phrase “arbitrary and unreasonable” were construed to define the only legal standard that might be applied in an action subject to the EAJA, then the other three types of standards contemplated by Article 78 would be excluded from the purview of the statute – a result even the State Police would disagree with (see Appellants’ Br. at 46-47). Nowhere in the 1989 bill jacket is there any indication that the statute was intended to be restricted to Article 78 proceedings and declaratory judgment actions against state agencies – let alone restricted to only a subset of those proceedings. In sum, the Appellate Division correctly concluded that consideration of the legislative history of the EAJA results in the same conclusion as a review of the plain language of the statute – the legislature did not intend to exclude from the EAJA’s purview an action seeking damages against the state for alleged sexual 62 250124 2401861 harassment and discrimination under the Human Rights Law (see Kimmel, 76 AD3d at 194-96). As a prevailing party of limited means in a civil action against the state brought properly in Supreme Court rather than the Court of Claims, Ms. Kimmel is entitled to an award of fees. If this was “an unintended result of the plain language of the statute, then that is a consequence best left to the Legislature to evaluate and, if necessary, resolve” (id. at 196). CONCLUSION For the foregoing reasons, Emmelyn S. Logan-Baldwin respectfully requests that this Court affirm the Fourth Department’s decision, and grant such other and further relief as the Court deems just and proper. Dated: January 21, 2015 Respectfully submitted, HARRIS BEACH PLLC By: s/A. Vincent Buzard A. Vincent Buzard Svetlana K. Ivy Allison A. Bosworth Attorneys for Intervenor-Respondent Emmelyn S. Logan-Baldwin 99 Garnsey Road Pittsford, New York 14534 Tel.: (585) 419-8800