This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 36
Betty L. Kimmel,
            Respondent,
        v.
State of New York et al.,
            Appellants.
--------------------------------
Emmelyn Logan-Baldwin,
    Interested Party-Respondent.




          Mitchell J. Banas, Jr., for appellants.
          A. Vincent Buzard, for respondents Kimmel and
Logan-Baldwin.
          Empire Justice Center et al.; Legal Services of Central
New York, amici curiae.




DiFIORE, Chief Judge:
          Under the Equal Access to Justice Act (CPLR article 86;
hereinafter EAJA), in certain circumstances a court may award
reasonable attorneys' fees and costs to a prevailing plaintiff or
petitioner in a suit against the State.   In this appeal we are
asked to decide whether the EAJA permits the award of attorneys'
fees and costs to a prevailing plaintiff in an action against the


                              - 1 -
                                - 2 -                        No. 36

State under the Human Rights Law for sex discrimination in
employment by a state agency.   We conclude that it does.
                                 I.
          From 1980 through 1994, plaintiff Betty Kimmel worked
as a New York State Trooper.    During plaintiff's tenure, she was
assigned to several different police stations, often as the first
woman to serve as a State Trooper at that station.   In 1995,
plaintiff filed a complaint alleging that she was subjected to
discrimination, sexual harassment, and retaliation based on her
sex and was exposed to a hostile work environment.   She sought
back pay, front pay, benefits, compensatory damages, reasonable
attorneys' fees, and an injunction restraining defendants from
continuing their discriminatory practices.   Defendants included
the State of New York and the New York State Division of State
Police (collectively, the State defendants), along with
individual defendants not relevant to this appeal.
          According to the complaint, and supporting exhibits,
coworkers posted lewd cartoons portraying plaintiff naked and
engaged in various sexual acts, suggested that plaintiff perform
sexual acts on them and other coworkers and engaged in other
harassing and hostile conduct, including a physical assault on
plaintiff, which required emergency room treatment and doctor-
ordered work leave.
          Throughout the course of plaintiff's 14-year tenure,
she made repeated complaints.   In 1982, plaintiff made a sexual


                                - 2 -
                                 - 3 -                        No. 36

harassment claim under Article 9 of the New York State Police
Administrative Manual, but the harassment continued.    When she
was assaulted by a coworker in 1993, plaintiff requested a formal
hearing, but was dissuaded from moving forward when her request
to have a private attorney present was denied and her union
representative suggested that she would not receive a fair
hearing.    Despite plaintiff's efforts, neither her supervisors
nor her Troop Commanders put a stop to her coworkers' offensive
behavior.    Plaintiff repeatedly sought legal assistance, but had
difficulty finding an attorney to take her case.
            In 1995, plaintiff commenced this litigation.   The
State defendants denied that the agency had engaged in any
wrongdoing whatsoever, and asserted as a defense that "[a]ll
actions taken by the defendants were official acts taken in the
exercise of their discretion."    Over the next ten years, the
State defendants repeatedly engaged in what the Appellate
Division characterized as "obstructionist and delaying tactics"
(261 AD2d 843, 845 [4th Dept 1999]), including their failure to
comply with basic discovery requests.    Eventually, based on their
continued defiance of court orders, the Appellate Division struck
the State defendants' answers (see 286 AD2d 881, 883 [4th Dept
2001]).
            When the case went to trial over a decade after the
complaint was filed, plaintiff prevailed and received a jury
award of over $700,000.    The jury award included past earnings of


                                 - 3 -
                               - 4 -                          No. 36

$160,000; past lost retirement earnings of $60,000; future lost
retirement earnings of $491,000; and past pain and suffering of
$87,000.   Plaintiff's current and former counsel1 then sought
attorneys' fees and costs under the EAJA.
           Supreme Court held that attorneys' fees and costs could
not be awarded in this action because the EAJA did not apply
"where a plaintiff has recovered compensatory damages for
tortious acts of the State and its employees."
           The Appellate Division reversed in a split decision,
holding that a plain reading of the EAJA and its definition of
the term "action" compelled the conclusion that the EAJA applies
to this case (76 AD3d 188, 191-194 [4th Dept 2010]).   Although
the Appellate Division noted that resort to the legislative
history was unnecessary, it nonetheless observed that the
legislative history supported its position.   The Court concluded
that if the legislature had not intended the EAJA to cover this
type of case, then the legislature, and not the court, was the
appropriate body to resolve the issue (see 76 AD3d at 196).
           The dissent would have concluded that "'the spirit and
purpose of the legislation,' as gleaned from the statutory
context and the legislative history," demonstrated that the EAJA
should be applied only to review of administrative actions (id.
at 199 [citation omitted]).


     1
       Plaintiff's former counsel intervened in this action and
will hereinafter be referred to as intervenor.

                               - 4 -
                                - 5 -                          No. 36

            Supreme Court subsequently entered a final judgment
awarding plaintiff and intervenor attorneys' fees and expenses.
Defendants now appeal as of right pursuant to CPLR 5601 (d),
bringing the prior nonfinal Appellate Division order up for our
review.
                                 II.
            We look "first to the plain language of the statute[]
as the best evidence of legislative intent" (Matter of Malta Town
Ctr. I, Ltd. v Town of Malta Bd. of Assessment Review, 3 NY3d
563, 568 [2004]).    New York's EAJA is located in article 86 of
the CPLR.    CPLR 8601 (a) provides in relevant part:
            "except as otherwise specifically provided by
            statute, a court shall award to a prevailing
            party, other than the state, fees and other
            expenses incurred by such party in any civil
            action brought against the state, unless the
            court finds that the position of the state
            was substantially justified or that special
            circumstances make an award unjust"
(CPLR 8601 [a] [emphasis added]).      CPLR 8602 defines the term
"Action" as "any civil action or proceeding brought to seek
judicial review of an action of the state as defined in
subdivision (g) of this section, including an appellate
proceeding, but does not include an action brought in the court
of claims" (CPLR 8602 [a]).    Subdivision (g) defines "State" as
"the state or any of its agencies or any of its officials acting
in his or her official capacity" (CPLR 8602 [g]).
             Thus, there are only two express limitations on the
expansive term "any civil action."      First, in CPLR 8601 (a), the

                                - 5 -
                               - 6 -                          No. 36

phrase "except as otherwise specifically provided by statute"
makes clear that the EAJA applies "only where another statute
does not specifically provide for counsel fees" (Matter of
Beechwood Restorative Care Ctr. v Signor, 5 NY3d 435, 443
[2005]).   It is undisputed that the Human Rights Law did not
provide attorneys' fees at the time this suit was brought and was
not amended to provide such fees until 2015 (see Executive Law §
297, as amended by L 2015, ch 364).2   Second, in CPLR 8602 (a),
the definition of "action" excludes actions commenced in the
Court of Claims.   This case was brought in Supreme Court pursuant
to Executive Law § 297 (9), not in the Court of Claims.
Accordingly, neither limitation on "any civil action" applies
here.
           We have repeatedly held that "the word 'any' means
'all' or 'every' and imports no limitation" (Zion v Kurtz, 50
NY2d 92, 104 [1980] [emphasis added]).   Ignoring both that
precedent and the "or" in the statutory definition ("any civil
action or proceeding brought to seek judicial review" [emphasis



     2
       Although they do not limit the phrase "any civil action,"
other provisions in the EAJA place limitations on fee awards.
CPLR 8601 (a) provides that fees will not be awarded when the
State's position is "substantially justified" or when "special
circumstances make an award unjust" (CPLR 8601 [a]). Individual
plaintiffs and petitioners must have a net worth of $50,000 or
less at the time the case was commenced, excluding the value of
their principal residences, in order to be eligible for fees (see
CPLR 8602 [d]). The lower courts determined that plaintiff met
all of these strict requirements, and their applicability is not
before us in this appeal.

                               - 6 -
                               - 7 -                          No. 36

added]), the State defendants argue that the term "judicial
review" in the definition of "action" places another express
limitation on "any civil action," thereby excluding cases, like
this one, that seek compensatory damages.   According to the State
defendants, the term judicial review modifies both "any civil
action" and "proceeding" and, therefore, restricts EAJA awards to
prevailing parties in article 78 proceedings, as well as a
limited subset of civil actions seeking review of a state
agency's administrative actions.   We disagree.
          In interpreting the term "action" we are guided by the
principle that a statute should be construed to avoid rendering
any of its provisions superfluous (see Majewski v Broadalbin-
Perth Cent. School Dist., 91 NY2d 577, 587 [1998]).   Neither
article 78 proceedings nor declaratory judgment actions against
the State can be brought in the Court of Claims (see CPLR 3001;
7804; cf. Court of Claims Act § 9 [9-a]), instead they must be
brought in Supreme Court.   Likewise, the Court of Claims does not
have jurisdiction over actions for injunctive relief (see Court
of Claims Act § 9; Psaty v Duryea, 306 NY 413, 416 [1954]).
Under the State defendants' interpretation, therefore, the
statutory exclusion for "an action brought in the court of
claims" would have no meaning (CPLR 8602 [a]).3


     3
       The dissent argues that the statutory exclusion for "an
action brought in the court of claims" is superfluous in any
event because the Court of Claims Act already bars attorneys'
fees (see dissenting op at 6-7). But the EAJA's Court of Claims

                               - 7 -
                               - 8 -                          No. 36

          Additionally, before the EAJA was enacted, we held that
Human Rights Law claims seeking monetary relief against the State
could be brought in Supreme Court (see Koerner v State of N.Y.,
Pilgrim Psychiatric Ctr., 62 NY2d 442, 449 [1984]).   When the
legislature enacted the EAJA five years later, it is presumed to
have known of our decision (see Arbegast v Board of Educ. of S.
New Berlin Cent. School, 65 NY2d 161, 169 [1985]); thus, the
Court of Claims exclusion was not intended to exclude Human
Rights Law claims from eligibility for an EAJA award.   Indeed, in
Koerner, we observed that discrimination is "all the more
invidious . . . when it is practiced by the State" (62 NY2d at
448), providing the legislature with all the more reason to
permit Human Rights Law claims such as this one to be eligible
for an award of attorneys' fees under the EAJA.
          Other principles of statutory interpretation guide our
reading as well.   Where the legislature has addressed a subject
and provided specific exceptions to a general rule -- as it has
done here -- the maxim expressio unius est exclusio alterius
applies (see McKinney's Cons Laws of NY, Book 1, Statutes § 240,
at 412-413 ["where a statute creates provisos or exceptions as to
certain matters the inclusion of such provisos or exceptions is
generally considered to deny the existence of others not
mentioned"]).   The State defendants ask us to create yet another


exclusion was necessary and avoided any suggestion that EAJA's
attorney's fees provision conflicted with or abrogated the Court
of Claims bar.

                               - 8 -
                                 - 9 -                        No. 36

exception to the statutory term "any civil action."    To do so,
however, would give effect to an assumed legislative intent by
judicial construction.
          The State defendants offer an additional explanation
for how the term "judicial review" impacts the phrase "any civil
action or proceeding brought to seek judicial review of an action
of the state" (CPLR 8602 [a]).    They argue that the term
"judicial review" is used to clarify that there can be no fees
awarded with respect to agency proceedings that take place before
the aggrieved individual, small business, or not-for-profit
entity goes into court to appeal -- by way of "judicial review"
(i.e., court review) -- an adverse agency ruling.   Indeed, both
the State defendants and intervenor agree that the term "judicial
review" was used to clarify that EAJA fee awards are not
available in connection with administrative agency proceedings
that precede court review (see e.g. Matter of Greer v Wing, 95
NY2d 676, 680 [2001]).   We agree.   By interpreting "judicial
review" in this way -- to modify solely the term "proceeding" --
this portion of the definition of "action" is harmonized with the
rest of the definition and the Court of Claims exclusion is not
rendered meaningless.4


     4
       Notably, the State defendants concede elsewhere that
"judicial review" is often given a broad definition. For
example, they cite Black's Law Dictionary's definition, which
includes "[a] court's power to review the actions of other
branches . . . of government" (Black's Law Dictionary 924 [10th
ed 2014]). Our decision in Matter of Pan Am. World Airways v New

                                 - 9 -
                               - 10 -                           No. 36

          Our conclusion is also consistent with the EAJA's
statutory scheme.    CPLR 8600 provides that the "intent" of the
EAJA was to create a mechanism comparable to that in the federal
Equal Access to Justice Act (federal EAJA), which is set forth in
28 USC § 2412 (d).    The federal EAJA provides:
          "Except as otherwise specifically provided by
          statute, a court shall award to a prevailing
          party other than the United States fees and
          other expenses, in addition to any costs
          awarded pursuant to subsection (a), incurred
          by that party in any civil action (other than
          cases sounding in tort), including
          proceedings for judicial review of agency
          action, brought by or against the United
          States in any court having jurisdiction of
          that action, unless the court finds that the
          position of the United States was
          substantially justified or that special
          circumstances make an award unjust"
(28 USC § 2412 [d] [1] [A] [emphasis added]).      The federal EAJA
undisputedly applies to "any civil action" brought against the
United States except for those sounding in tort.     In our statute,
the Court of Claims exclusion is the equivalent of the federal
exclusion of tort actions, since tort claims against the State
can only be brought in the Court of Claims.5    Likewise, our


York State Human Rights Appeal Bd. (61 NY2d 542, 548 [1984]),
likewise uses the term "judicial review" to mean review by a
court without reference to an agency decision -- indeed, we
pointed out in that case that the Human Rights Law expressly
permits either administrative review through the Human Rights
Division or, as an alternative, "judicial review."
     5
       As the parties agree, and contrary to the Supreme Court's
holding, claims brought under the Human Rights Law are not tort
claims (Margerum v City of Buffalo, 24 NY3d 721, 730 [2015]
[concluding no notice of claim requirement applies because

                               - 10 -
                              - 11 -                           No. 36

EAJA's reference to a "proceeding brought to seek judicial
review" was meant to mirror similar language in the federal EAJA.
The dissent ignores the fact that the phrase in the federal EAJA
"including proceedings for judicial review of agency action" was
not even in the federal EAJA when it was first enacted, but was
added in 1985 to overrule a federal decision, which held that the
federal EAJA did not apply to court review of administrative
agency rulings (see Gregory C. Sisk, The Essentials of the Equal
Access to Justice Act: Court Awards of Attorney's Fees for
Unreasonable Government Conduct [Part One], 55 La L Rev 217, 230,
230 n 75 [November 1994], citing to Natl. Wildlife Fedn. v
F.E.R.C., 870 F2d 542, 543 [9th Cir 1989]).   Indeed, the addition
of this phrase in the federal EAJA was intended to clarify the
expansiveness of the statute's coverage by acknowledging that
agency rulings reviewed by the courts, as well as all other civil
actions with the exception of tort actions, were eligible for
awards.   Thus, our reading of "proceeding brought to seek
judicial review" in the EAJA is entirely consistent with its
federal counterpart.
           Further, at the time our EAJA was passed, federal
courts in New York had already held that the federal EAJA was a
remedial statute (see Barriger v Bowen, 673 F Supp 1167, 1169 [ND



"(h)uman rights claims are not tort actions under (General
Municipal Law §) 50-e and are not personal injury, wrongful
death, or damage to personal property claims under (General
Municipal Law §) 50-i"]).

                              - 11 -
                              - 12 -                           No. 36

NY 1987]; Envtl. Defense Fund, Inc. v Watt, 554 F Supp 36, 41 [ED
NY 1982]).6   New York's EAJA is a remedial statute as well.    As
such, it should be "liberally construed to carry out the reforms
intended and to promote justice" (McKinney's Cons Laws of NY,
Book 1, Statutes § 321), and "interpreted broadly to accomplish
[its] goals" (People v Brown, 25 NY3d 247, 251 [2015]; see also
Matter of Scanlan v Buffalo Pub. School Sys., 90 NY2d 662, 676
[1997]; Post v 120 E. End Ave. Corp., 62 NY2d 19, 24 [1984]).7
          The purpose of the EAJA is "[t]o encourage individuals,
small businesses and not-for-profit corporations to challenge
state action when it lacks substantial justification by allowing
them to recover fees and litigation expenses" (Assembly Mem, Bill
Jacket, L 1989, ch 770 at 10 [emphasis added]).   The State
defendants' restrictive interpretation of "any civil action" is
inconsistent with these goals.   Moreover, we have held that
limitations should not be read into such remedial statutes
"unless the limitation[s] proposed [are] 'clearly expressed'"



     6
       Additionally, since the federal EAJA's passage, other
federal courts have consistently concluded that it is a remedial
statute (see e.g. Phillips v Shinseki, 581 F3d 1358, 1367 [Fed
Cir 2009], citing Scarborough v Principi, 541 US 401, 406-407
[2004]).
     7
       Fee-shifting statutes that provide fees to the prevailing
party in derogation of the common-law rule are generally
interpreted narrowly (see e.g. Vucetovic v Epsom Downs, Inc., 10
NY3d 517, 521 [2008]). However, when interpreting a fee-shifting
statute that is remedial in nature, we have held that the statute
may nonetheless be interpreted broadly (see Graham Ct. Owners
Corp. v Taylor, 24 NY3d 742, 750-751 [2015]).

                              - 12 -
                              - 13 -                          No. 36

(Brown, 25 NY3d at 251, quoting People v Sosa, 18 NY3d 436, 440-
441 [2012]).   As noted, there are only two clear exclusions from
the term "any civil action" and the State defendants' proposed
limitation for cases seeking monetary damages is not one of them.
                               III.
           The legislative history from 1989, when the EAJA
became law, demonstrates that the EAJA was "targeted at those
businesses and individuals . . . who often lack the resources
necessary to vindicate their civil and legal rights" (Letter from
New York Lawyers for the Public Interest, Inc., Bill Jacket, L
1989, ch 770 at 46).   Although the plain language of the statute
provides the best evidence of legislative intent, "the
legislative history of an enactment may also be relevant and is
not to be ignored, even if words be clear [because the] primary
goal of the court in interpreting a statute is to determine and
implement the Legislature's intent" (Matter of Tompkins County
Support Collection Unit v Chamberlin, 99 NY2d 328, 335 [2003]
[internal quotation marks and citations omitted]).
          Here, the legislative history also leads to the
conclusion that "any civil action" means what it says, subject to
the express exclusions in the statute.   While article 78
proceedings were undoubtedly a focus of interest in the bill, and
some portions of the legislative history reflect this, the
legislative history also supports our conclusion that the statute
permits an award of attorneys' fees and costs to the plaintiff in


                              - 13 -
                                - 14 -                         No. 36

this case.
          Notably, the 1989 bill that subsequently was codified
as CPLR article 86 differed from earlier versions of the statute
-- all vetoed by the governor -- in important ways.    Most of the
earlier versions applied only to small businesses and not
individuals; one excluded claims brought by "state employees";
one defined "judicial review" as "an appeal of agency action";
and, as the governor's vetoes of these earlier bills indicated,
all failed to establish a policy of providing New York's poor
with access to the courts (see e.g. Governor's Veto Message, No.
71, 1983 NY Legis Ann at 99).    The legislature made very
different choices when it drafted and passed the EAJA as we now
know it: individual plaintiffs and petitioners are covered with
no exclusion for state employees; there is no limiting definition
of "judicial review"; and the clear intent is to advance
individuals' "civil rights" (the very words used in supporting
materials in the bill jacket) as well as other rights.    We
conclude that the earlier bills shed light on the critical
differences that make the EAJA that did pass a true vehicle for
improved access to justice for those who would otherwise be
unable to afford a lengthy legal battle with a state actor.
          Even the legislative history cited by the dissent
supports this case's eligibility for fees under the EAJA.      For
example, in Governor Mario Cuomo's memorandum approving the bill,
the governor commented that the statute authorized a fee award to


                                - 14 -
                               - 15 -                        No. 36

"certain plaintiffs or petitioners who prevail in litigation
reviewing State agency action or inaction when the State's
position in the case is not substantially justified" and that its
purpose was to "improv[e] access to justice for individuals and
businesses who may not have the resources to sustain a long legal
battle" against the State (Governor's Mem approving L 1989, ch
770, 1989 Legis Ann at 336).   That, of course, was the situation
here.   The State defendants defended the agency's inaction in
failing to address rampant sex discrimination in its ranks on the
ground that the agency's official acts were within its
discretion.   At the same time, their dilatory and obstructive
conduct in the litigation seemed designed to wear down plaintiff
and exhaust her resources.
           The dissent concludes that "[w]ithin all the
legislative history over the course of the decade in which the
EAJA was contemplated and developed, there is no discussion of a
drastic change in the statute's purpose or applicability from its
earlier incarnations" (dissenting op at 13).   This is incorrect.
The Report of the Association of the Bar of the City of New York
described the change from earlier versions in some detail:
           "Bills denominated 'Equal Access to Justice'
           Acts have been passed by both houses of the
           state legislature during the past several
           years, only to be vetoed by the Governor.
           Those bills, however, were not truly Equal
           Access to Justice Acts because, although they
           assisted small businesses regulated by state
           agencies, they failed to confer any benefits
           on low income individuals seeking to enforce
           civil and legal rights through the courts.

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                              - 16 -                           No. 36

          As Governor Cuomo's 1983 veto message stated,
          'This bill does not establish a policy of
          enabling the poor to gain access to the
          judicial forum.' The EAJA in its current
          form would be the first bill to reach the
          Governor's desk that directly promotes equal
          access to justice by significantly lowering
          economic barriers that currently prevent many
          individuals from contesting irrational an[d]
          illegal State government action"
(Assn. of the Bar of City of New York, Report on Legislation,
Bill Jacket, L 1989, ch 770 at 57).
           Additionally, other proponents of the EAJA, such as
the State Bar Association, praised the 1989 bill as "designed to
accomplish precisely what its title suggests -- enhanced access
to the courts for those who historically have been unable to make
use of the judicial process simply because they lacked financial
resources" (Letter from New York State Bar Assn., Bill Jacket, L
1989, ch 770 at 48).   These proponents further heralded its
passage as timely given the then-recent findings of the Marrero
Committee (see id. at 49), which was constituted "to study the
extent of the unmet need for civil legal services among the poor
in New York State and to recommend ways to improve the
availability of those services" (Victor Marrero, Committee to
Improve the Availability of Legal Services -- Final Report to the
Chief Judge of the State of New York, 19 Hofstra L Rev 755, 756
[Summer 1991]).   The Committee's Preliminary Report, which was
issued while the EAJA was under consideration, concluded that
"the critical problem of underrepresentation of the poor . . .
'jeopardize[d] both the welfare of poor persons and the

                              - 16 -
                              - 17 -                          No. 36

legitimacy of the legal system itself'" (Letter from New York
State Bar Assn., Bill Jacket, L 1989, ch 770 at 49, quoting
Marrero Committee Preliminary Report).
          Moreover, as noted in the governor's signing statement,
the 1989 EAJA differed from EAJA bills he had vetoed in the past
because, in addition to opening up the EAJA to individuals to
vindicate their civil and other legal rights, it had "necessary
safeguards" absent from prior versions of the bill (Governor's
Mem approving L 1989, ch 770 at 20).   Specifically, the governor
noted the "appropriate limits" on the classes of individuals and
entities that can seek EAJA awards, including the $50,000 net
worth requirement (id.).8   The governor also observed that the
1989 version limited fees and costs to those cases where the
State's position was not "'substantially justified'" and to an
amount that was deemed "'reasonable'" (id. at 20).   Thus, our
interpretation does not "open the floodgates" since these various
restrictions keep them firmly shut to all but the neediest and
most deserving plaintiffs and petitioners.
          In discussing these restrictive "necessary safeguards"
placed on EAJA awards, the governor referred to the federal EAJA
and cited the differences between the federal statute and New


     8
       New York's $50,000 requirement was the most restrictive of
any of the other 29 states that approved state EAJAs around this
time, many of which placed no restrictions on an individual's
wealth (see Susan M. Olson, How Much Access to Justice from State
"Equal Access to Justice Acts"?, 71 Chi-Kent L Rev 547, 561-562
[1995]).

                              - 17 -
                               - 18 -                          No. 36

York's EAJA.   The federal EAJA undeniably applies to all civil
actions, except those where costs and fees are already provided
for by another statute and tort actions.   If the governor
understood the EAJA to apply to a subset of civil actions that
was more limited than the federal statute's coverage, he surely
would have noted it in discussing these important restrictions,
given the emphasis placed on safeguards that would lessen the
financial burden on the State.   The governor's failure to mention
any such limitation in the 1989 bill provides further support for
the conclusion that there was no such limitation.
          Several other proponents and opponents of the bill
observed that the EAJA was modeled after the federal EAJA (Bill
Jacket, L 1989, ch 770 at 11, 23, 25, 27, 39).   Yet not one
stated that the EAJA excluded virtually all civil actions -- as
the State argues it does.   To the contrary, several of the
submissions in the Bill Jacket describe the EAJA as applicable to
all civil actions brought against the State with the exception of
those commenced in the Court of Claims or tort actions,
consistent with the federal EAJA (see Bill Jacket, L 1989, ch 770
at 49, 53).    Similarly, a report from the Association of the Bar
of the City of New York stated that the EAJA applied to
"prevailing parties in civil proceedings, with the exception of
tort actions, against the State" (id. at 55).
          Finally, attorneys' fees and costs are now specifically
provided for under the Human Rights Law in cases of housing


                               - 18 -
                             - 19 -                               No. 36

discrimination and in cases of sex discrimination in credit or
employment (L 2015, ch 364, § 1).       The 2015 amendment reflects
the legislature's acknowledgment that fee-shifting provisions are
appropriate in the area of Human Rights Law violations.       The
amendment also means that attorneys' fees in certain civil
actions and proceedings brought under the Human Rights Law
alleging sex discrimination will no longer be subject to the
EAJA's limiting requirements but to the separate requirements set
forth in the Human Rights Law itself.       Contrary to the dissent's
position, the enactment of the 2015 amendment does not mean that
litigants prior to that time had no recourse to EAJA; rather, the
amendment allows for attorneys' fees without the limiting
requirements that EAJA imposes.
                                  IV.
          In sum, the plain language, legislative history and
remedial nature of the EAJA together demonstrate that this civil
action is eligible for an award of attorneys' fees.       We hold that
for cases commenced before the effective date of the 2015
amendment to the Human Rights Law, the EAJA permits the award of
attorneys' fees and costs to a prevailing plaintiff in an action
against the State under the Human Rights Law for sex
discrimination in employment by a state agency.       The plain
language of the statute, which is supported by the legislative
history, compels the conclusion that "any civil action"
encompasses cases brought under the Human Rights Law.       It is not


                             - 19 -
                              - 20 -                        No. 36

for this Court to engraft limitations onto the plain language of
the statute.   Indeed, "[t]his Court should be very cautious in
interpreting statutes based on what it views as a better choice
of words when confronted with an explicit choice made by the
Legislature" (Matter of Orens v Novello, 99 NY2d 180, 190
[2002]).   We agree with the Appellate Division that we may "not
legislate under the guise of interpretation and, if application
of the EAJA to this action is an unintended result of the plain
language of the statute, then that is a consequence best left to
the Legislature to evaluate and, if necessary, resolve" (76 AD3d
at 196 [internal citations and quotations omitted]).
           Accordingly, the judgment appealed from, and order of
the Appellate Division insofar as brought up for review, should
be affirmed, with costs.




                              - 20 -
Kimmel v State of New York
No. 36




WILSON, J. (concurring in the result):
          I believe the CPLR 8602 (a) language defining "action"
as "any civil action or proceeding brought to seek judicial
review of an action of the state" is facially ambiguous (although
slightly suggestive of review of administrative decision-making).
However, I agree with the dissent's conclusion that the


                              - 1 -
                                - 2 -                         No. 36

legislative history, coupled with the explicit exclusion of
actions in the Court of Claims, supports the proposition that the
Equal Access to Justice Act was intended to address article 78
proceedings and other actions seeking injunctive or other
equitable relief rather than monetary damages.   Nevertheless,
because of the peculiar facts of this case and the admissions
made by the State at oral argument, I agree in the result reached
by the plurality for the following reasons.
          Ms. Kimmel filed her lawsuit in 1995 after suffering
widespread gender discrimination and sexual harassment within the
New York State Police, where she had been employed as a State
Trooper for fourteen years.   She sought not merely damages for
herself, but also declaratory and injunctive relief to benefit
all women on the force who suffered such discrimination. As
chronicled in numerous decisions of the lower courts, and
reiterated in the plurality and dissent, the State Police shirked
its disclosure obligations and endlessly stonewalled Ms. Kimmel.
After twelve years of the State's obstructionist and delaying
tactics, and as a sanction for the gross misconduct of the State
in this litigation, Supreme Court struck the State's answers and
entered judgment in Ms. Kimmel's favor on the claims for money
damages. At that point, she had still been utterly frustrated in
her efforts to obtain discovery from the State to which she was
entitled and which was relevant to all her claims, whether for
damages or injunctive relief.   Prior to that point, Ms. Kimmel's


                                - 2 -
                              - 3 -                           No. 36

lawsuit could fairly be characterized as one seeking both money
damages for herself and injunctive relief for herself and others;
subsequent to it, the proceedings have largely been to pursue an
award of attorney's fees, less the cost of the trial on damages
after the court struck the State's answers.
          At oral argument, counsel for the State repeatedly
responded that a plaintiff in Supreme Court proceeding not under
article 78 but in a lawsuit brought under the Human Rights Act
against a State agency and "looking for injunctive relief . . .
is seeking judicial review" and "article 86 would apply in such a
situation," even if that situation included a plea for both
injunctive relief and money damages.   Thus, the State has
conceded, if only for the purposes of this case, the Equal Access
to Justice Act entitles Ms. Kimmel to recover attorneys' fees for
any portion of her lawsuit related to her claim for injunctive
relief, including her efforts to reform the discriminatory
practices of the State Police to the benefit of other women.
          That concession operates in two ways. First, it is an
admission by the State that, at least in this case, a civil Human
Rights Law action filed in Supreme Court can meet the statutory
definition of "judicial review of an action of the state."
Because the record before the court in this case would be the
same regardless of the nature of the prayer for relief, the
State's concession is wholly incompatible with its contention
that "judicial review" is limited to article 78 suits challenging


                              - 3 -
                              - 4 -                           No. 36

administrative decision-making and can never apply to a suit
under the Human Rights Law.
          Second, counsel for the State's concession means that
Ms. Kimmel, who sued a State agency under the Human Rights Law
for both money damages for herself and injunctive relief
benefitting herself and others, is entitled to recover some
amount of attorney's fees. Although the State advocated
apportioning the fees between those allocable to her claim for
money damages and those allocable to her claims for injunctive
and declaratory relief, those portions of the suit are, in this
case, indistinguishable as a result of the State's egregious
discovery abuses and the attendant unusual procedural history.
Thus, the result of the plurality's opinion is the same result I
would reach, albeit for a different reason.
          Therefore, I would affirm.




                              - 4 -
Kimmel v State of New York
No. 36




GARCIA, J.(dissenting):
          I agree with the plurality that the conduct of the
defendants in this case was egregious.   That plaintiff received
truly reprehensible treatment, however, does not entitle her
attorneys to recoup fees under a statute that does not, and has
never been used to, provide for such an award in this type of
case.
                                I.


          Plaintiff, one of the first women to become a state
trooper in New York, experienced years of discrimination and
harassment during her employment by defendants State of New York
and the New York State Division of State Police.   This long
period of mistreatment included vandalism of plaintiff's
property, the posting of offensive cartoons depicting plaintiff
performing sexual acts, and a physical attack by a co-worker that
placed her in the emergency room.    After attempts to seek redress
of these wrongs internally, plaintiff filed suit in 1995 alleging
sex discrimination, sexual harassment, retaliation, and hostile
work environment and seeking $15,000,000 in damages as well as
back pay, front pay, benefits, injunctive relief, and
reinstatement.   Before the suit was filed, plaintiff obtained two


                               - 1 -
                               - 2 -                          No. 36

attorneys, one of whom (the intervenor) had extensive experience
in discrimination law cases.   Both attorneys signed a contingency
fee contract with plaintiff, agreeing to share one-third of any
award received.
          Plaintiff's complaint attached numerous exhibits that
documented the harassment she experienced.   In response to
plaintiff's complaint, the State defendants denied wrongdoing.
After "obstructionist" and dilatory conduct on the part of the
State, a court later found that defendants "had repeatedly
disobeyed discovery orders of Supreme Court and [the Appellate
Division]" and so struck defendants' answer (286 AD2d 881, 882
[4th Dept 2001]; 261 AD2d 843, 845 [4th Dept 1999]).   Judgment
was entered in plaintiff's favor on the issue of liability.1
          In 2005, after a dispute arose, plaintiff fired the
intervenor.2   After the intervenor refused to provide plaintiff
with the case file, plaintiff and her remaining attorney moved to
obtain the file and the intervenor cross-moved for a lien.     A
judge ordered the intervenor to turn the case file over to



     1
       In 2002, the parties entered into a stipulation pursuant
to which defendants agreed to pay more than $76,000 of
plaintiff's attorneys' fees to resolve a sanctions motion.
     2
       The intervenor's high fee requests led in part to a
breakdown in the attorney-client relationship. Plaintiff
attested that "[f]rom May 2004 to March 2005 [the intervenor's]
bill increased by 50% . . . I cannot pay this bill." She also
stated that the intervenor "would continually file appeals,
motions, etc. without ever conferring" with plaintiff and that
plaintiff believed some of these actions "were unnecessary."

                               - 2 -
                                - 3 -                           No. 36

plaintiff's remaining attorney and placed a charging lien on any
proceeds recovered in the pending suit.    At that point, the
intervenor's bill for her services was approximately $490,000.
            On the eve of trial in 2006, in a letter responding to
a general question about fees posed by the trial judge "[a] few
months ago," plaintiff's remaining attorney raised for the first
time the theory that the case might qualify for a fee award under
the EAJA.    In the letter, that attorney inquired about
"defendants' position concerning settlement . . . in light of
this information [that plaintiff may be entitled to fees]" and
stated that any "[s]erious settlement talks really means getting
beyond a 6 figure amount[]."    The parties did not reach a
settlement.    After a trial on damages in 2006, a jury awarded
plaintiff approximately $800,000 total for lost past earnings,
lost past retirement earnings, lost future retirement benefits,
and past pain and suffering.
            In 2008, plaintiff, her remaining attorney, and the
intervenor moved for attorneys' fees and expenses under the EAJA.
The intervenor asked for more than $1,000,000 in attorneys' fees,
including "enhanced fees" of $180,663 for what she described as
"'bad faith' and frivolous and dilatory conduct of the State of
New York and the New York State Police in their defense of
plaintiffs' claims."3   Supreme Court denied the motion, finding

     3
        Legislators and the Governor were particularly concerned
about attorneys seeking enhanced fees when considering passage of
the EAJA (see Letter from Sponsor, Bill Jacket, L 1989, ch 770,

                                - 3 -
                                - 4 -                         No. 36

that the EAJA did not apply to plaintiff's claim for compensatory
damages.    A divided Appellate Division reversed, holding that
plaintiff's claim was eligible for attorneys' fees under the
EAJA.    This holding was based on the Appellate Division
majority's determination that the plain meaning of the EAJA
compelled a conclusion that it applied to this case; that the
statute's Court of Claims exclusion would be superfluous if the
EAJA was limited to article 78 proceedings and declaratory
judgment actions because those actions cannot be brought in the
Court of Claims anyway; and that the legislative history
supported its interpretation.    Two justices dissented, noting
conversely that the statute's plain meaning and legislative
history demonstrated that the EAJA was inapplicable to
plaintiff's suit.
                                II.
            The EAJA, which also bears the title "Counsel Fees and
Expenses in Certain Actions Against the State," provides that "a
court shall award to a prevailing party . . . fees and other
expenses incurred by such party in any civil action brought
against the state, unless the court finds that the position of
the state was substantially justified or that special
circumstances make an award unjust" (CPLR 8601 [a]).    Section
8602 provides corresponding definitions for terms in the statute
and defines "action" as "any civil action or proceeding brought


at 8).

                                - 4 -
                               - 5 -                          No. 36

to seek judicial review of an action of the state as defined by
subdivision [g] of this section, including an appellate
proceeding, but does not include an action brought in the court
of claims" (CPLR 8602 [a]).
           The crux of this dispute concerns the clause "any civil
action or proceeding brought to seek judicial review" and whether
that includes suits for compensatory damages.   Essentially, the
plurality reads the statute to say "any civil action or any
proceeding brought to seek judicial review" (see plurality op at
6-7).   Yet the definition of "civil action" enacted by the
legislature limits the EAJA's applicability to either civil
actions brought to seek judicial review of an action of the
state, or proceedings brought to seek judicial review of an
action of the state.   This limitation accordingly cabins the
applicability of the EAJA to actions seeking to challenge an
action taken by a state agency or one of its officials acting in
his or her official capacity, including article 78 proceedings,
declaratory judgment actions involving state agency rulings, and
actions seeking injunctive relief from state agency rulings.
           This interpretation is consistent with the other
provisions of article 86.   The statute provides in section 8601
(a) that "[w]hether the position of the state was substantially
justified shall be determined solely on the basis of the record
before the agency or official whose act, acts, or failure to act
gave rise to the civil action."   But there is no such "record


                               - 5 -
                               - 6 -                            No. 36

before the agency or official" in plenary actions seeking
principally compensatory damages like the instant action.
Consistent with this provision, "position of the state" is
defined as "the act, acts or failure to act from which judicial
review is sought" (see CPLR 8602 [e]).    Likewise, section 8602
defines "fees and other expenses" as those "incurred in
connection with an administrative proceeding and judicial
action," further demonstrating that the statute applies only to
suits challenging state administrative action.
           The plurality supports its argument for a broad reading
of the EAJA with an assertion that under a narrow interpretation,
the statute's provision carving out "an action brought in the
court of claims" is superfluous (plurality op at 7-9).    The
Appellate Division majority also noted that, under the
interpretation outlined above, "the language excluding actions
commenced in the Court of Claims would be unnecessary inasmuch as
such proceedings do not generally fall within that court's
limited jurisdiction" (76 AD3d at 406).    But this provision is
"unnecessary" under either interpretation.    The Court of Claims
Act specifically bars attorneys' fees (see Court of Claims Act §
27).   Even under the plurality's interpretation of the EAJA,
therefore, the Court of Claims "carve out" is superfluous.
Accordingly, in light of the language used in the remainder of
the statute, as well as the legislative history supporting a
narrow interpretation, this language must be attributed to a


                               - 6 -
                               - 7 -                          No. 36

redundancy on the part of the legislature and not as an
indication that the statute should be read broadly.    "Redundancy
is hardly unusual in statutes addressing costs," and "the canon
against surplusage is not an absolute rule" (Marx v General
Revenue Corp., 133 S Ct 1166 [2013]).4   The carve out for the
Court of Claims merely reiterates that compensatory damage claims
-- required in nearly every case to be brought in the Court of
Claims -- do not qualify for attorney's fees under the EAJA.
          The fact that Human Rights Law cases may be brought in
Supreme Court does not affect this interpretation.    Before we
decided Koerner v State of New York (62 NY2d 442 [1984]), this
case would have originated in the Court of Claims, because money
damages are not otherwise available against the State in Supreme
Court; Koerner created a narrow exception, pursuant to which
Human Rights Law cases may be brought in either Supreme Court or
the Court of Claims.   While the legislature is "presumed to have
known of our decision" in Koerner (plurality op at 8), the
general impression at the time, which remains true in all other
contexts outside the HRL, was that the State could not be sued
for monetary damages in Supreme Court.   Moreover, the EAJA, as a
fee-shifting statute in derogation of the common law, must be
strictly construed (see Peck v New York State Div. of Hous. &


     4
       Nor does our interpretation violate the principle of
"expressio unius est exclusio alterius" (plurality op at 9). A
narrow reading of the EAJA gives the limitation on "any civil
action" its intended meaning based on the statute's language.

                               - 7 -
                               - 8 -                           No. 36

Community Renewal, 188 AD2d 327, 327-328 [1st Dept 1992]).5     The
statute's plain language, with its express limitation on what
constitutes a "civil action" eligible for fees, otherwise
establishes that the statute is not applicable to employment
discrimination actions for compensatory damages.6
                               III.
           Despite the Appellate Division majority's belief that
"there is no need to resort to legislative history to discern the
intent of the Legislature" (76 AD3d at 194), it is appropriate to
consider legislative history even where a statute's plain meaning
is clear (see Riley v County of Broome, 95 NY2d 455, 463-64
[2000]).   Such review is particularly appropriate where, as here,
multiple judges have expressed diametrically opposed views of
that "plain meaning."
           The legislative history unambiguously supports an
interpretation of the statute as limited to judicial review of
agency action.   The legislature began attempting to pass some
statutory mechanism for providing attorneys' fees to prevailing


     5
       It is true that "limitations should not be read into . . .
remedial statutes 'unless the limitation[s] proposed [are]
clearly expressed'" (plurality op at 17). The definition of
"action" in section 8602 (a) clearly expresses such a limitation.

     6
       The concurrence argues that the State conceded at oral
argument that the EAJA entitles plaintiff to recover fees for
that portion of her lawsuit that related to her claim for
injunctive relief (concurring op at 2-3). Any such concession
"is not binding on this Court" (People v Sincerbeaux, 27 NY3d
683, 689 n 3 [2016]).

                               - 8 -
                                - 9 -                       No. 36

parties challenging unjust state agency action beginning in 1982.
The legislature noted the "tremendous power in [the state's]
ability to impose fines, suspend or revoke licenses or compel or
restrict the activities of regulated entities" and that suits
contesting these actions are extremely costly (Assembly Bill
11940-A [March 1982]).   There is no dispute that this version of
the bill only applied to review of state agency action.   The bill
was vetoed in large part because of cost concerns and breadth, as
were the similar 1983 and 1984 draft bills.
          The 1986 bill, drafted more narrowly than the previous
bills, continued to address only state agency action, and again
was vetoed, at least in part, because of cost concerns.   While
these bills over time became increasingly more narrow to address
concerns over breadth and cost, the overall purpose remained the
same -- reimbursement for costs incurred in challenging state
agency action.   Although the plurality finds the legislative
history of the earlier draft bills indicative of support for a
broad interpretation of the EAJA in light of the differences
among the previous bills and the final version (plurality op at
20-22), there is no legislative history suggesting a broadening
of the bill's applicability in terms of the type of "action" for
which fees could be awarded.7


     7
       The Report of the Association of the Bar of the City of
New York does not suggest a change in the statute's purpose (see
plurality op at 16), but instead discusses the value that the
final bill adds by "significantly lowering economic barriers that

                                - 9 -
                                - 10 -                         No. 36

           Moreover, the legislative history surrounding the
passage of the 1989 bill "compels a conclusion that the
Legislature intended that the EAJA would be utilized to seek
attorneys' fees and expenses in an action that involved judicial
review of an administrative action of the State," as the dissent
below noted (79 AD3d at 201).    In Governor Cuomo's memorandum of
approval of the bill, he commented that the statute "authorize[d]
a court to award attorneys' fees to certain plaintiffs or
petitioners who prevail in litigation reviewing State agency
action or inaction when the State's position in the case is not
substantially justified . . . .    It is a worthwhile experiment in
improving access to justice for individuals and businesses who
may not have the resources to sustain a long legal battle against
an agency that is acting without justification" (Governor's
Approval Mem, Bill Jacket, L 1989, ch 770, at 20 [emphasis
added]).   Likewise the bill's sponsor noted that the bill was
requested in order to "protect such parties from unfair agency
enforcement actions" in light of the "prohibitive cost of
contesting . . . an action taken against them by a State agency"
(Letter from Sponsor, Bill Jacket, L 1989, ch 770, at 6 [emphasis
added]).   The "prime Senate sponsor" of the bill acknowledged


currently prevent many individuals from contesting irrational
an[d] illegal State government action" (Assoc. of the Bar of the
City of New York Report, L 1989, ch 770, R 57). This statement
does not evince awareness of an intent to change the types of
cases eligible for fees under the EAJA and indeed speaks to
reigning in problematic agency action.

                                - 10 -
                              - 11 -                           No. 36

that it was intended to provide attorneys' fees for litigants
"that were successful in challenging unwarranted state actions"
(Letter from Sponsor, Bill Jacket, L 1989, ch 770, at 5).
Another letter of support speaks to the bill's purpose in
providing "a mechanism for overcoming the economic barriers that
frequently prevent poor persons from contesting erroneous agency
actions" (Letter from New York State Bar Association, Bill
Jacket, L 1989, ch 770 [emphasis added]).   In fact, the letter
relied upon by the Appellate Division majority to support their
interpretation stated that "the legislation would provide an
incentive to State agencies to reach more considered
determinations" (Letter from Sponsor, Bill Jacket, L 1989, ch
770, at 54).   These statements would be wholly illogical and
inexplicable if plenary actions seeking to recover compensatory
damages were eligible for fee awards under the statute.
          Striking a similar theme, the Budget Report on Bills
submitted to the Governor in opposition to the EAJA stated that
the bill's purpose was to allow legal fees "when . . .
individuals or entities appeal an unjustifiable ruling of a State
agency, board or commission" and that the bill "provides a means
of redress for individuals, small businesses, and not-for-profit
corporations in situations where a State agency, board or
commission is given an unfavorable ruling without good cause"
(Budget Report on Bills, A. 3313 [1989]).   The arguments in
support of the bill recounted in this budget report noted that


                              - 11 -
                               - 12 -                           No. 36

the bill "would encourage individuals, small businesses and not-
for-profit corporations to seek redress when they feel the State
has made a ruling that unjustly affects them" (id.).    This
language reflects an understanding of the statute as limited to
actions challenging a state agency ruling or determination.
While plaintiff argues that the budget report is of no use in
determining the statute's goal because it was not before the
Assembly or Senate when the bill was passed, the budget report
was presented to the Governor before he approved the passage of
the bill.    This interpretation of the budget report is also
consistent with the letter sent by the bill's sponsor to the
Governor after the budget report was issued, noting that the
"fiscal impact" of the bill would be minimal "if State agencies
are using their regulatory powers responsibly and judiciously"
(Letter from Robin Schimminger to Governor Cuomo re A. 3313-B,
dated September 21, 1989).    As noted above, the Governor in
vetoing prior iterations of this legislation was particularly
concerned with costs and would certainly have been misled by this
budget analysis.
            The legislative history demonstrates both the
legislature's and Governor's continued concern with the bill's
cost.   This concern is borne out by the statute's final product;
in particular, section 8604 requires annual reporting describing
the "number, nature and amount of each award in the previous
fiscal year."    The bill's expected annual cost was less than


                               - 12 -
                                - 13 -                        No. 36

$500,000 annually, and its major purpose was to help those "whose
rights have been violated but whose potential damage awards may
not have been enough to induce lawyers to fight City Hall"
(Wittlinger v Wing, 99 NY2d 425, 431 [2003]).    It is difficult to
align this concern with plaintiff's $15 million demand for
compensatory damages.   Indeed two lawyers, without any apparent
expectation of fee recovery from the state, signed contingency
fee agreements with plaintiff.
           Within all the legislative history over the course of
the decade in which the EAJA was contemplated and developed,
there is no discussion of a drastic change in the statute's
purpose or applicability from its earlier incarnations.    All
involved in the 1989 bill's passage assumed it was of limited
applicability to judicial review of agency actions and not one
statement in the record contradicts that conclusion.
           Plaintiff also argues that the federal EAJA supports
her interpretation because CPLR 8600 states that the EAJA was
intended "to create a mechanism comparable to that in the federal
Equal Access to Justice Act."    This argument fails for several
reasons.   First, despite the plurality's suggestion that the
federal EAJA contains a similar definition of civil action, the
federal EAJA in fact uses different language (plurality op at 10-
11).   Under the federal statute, the phrase "any civil action" is
plainly not limited to those seeking judicial review, as the
statute identifies "any civil action" as "including," among other


                                - 13 -
                              - 14 -                         No. 36

things, "proceedings for judicial review of agency action" (28
USC § 2412 [d] [1] [A]), necessarily signaling that the phrase
"any civil action" is a broad and inclusive term.   This inclusive
language reflects the broader applicability of that statute, in
comparison with the state version, which limits an award of fees
only to "any civil action or proceeding brought to seek judicial
review" (CPLR 8602 [a]).   We have recognized that "although the
State EAJA purports to be modeled after the Federal act, the
Legislature departed from the Federal model in certain
significant respects" and, thus, the use of different language in
the state EAJA "evinces an intent" to have a stricter or more
narrow statute than the federal counterpart (Matter of New York
State Clinical Lab. Assn. v Kaladjian, 85 NY2d 346, 353 [1995]).
Here, the legislature's choice to depart from the language of the
federal statute reflects a conscious decision to limit the
application of the state EAJA.8   Moreover, the federal EAJA would
not apply to plaintiff's claim here, as Title VII includes an
attorneys' fees provision (42 USC § 2000e-5 [k]).



     8
       The fact that this language was not in the federal EAJA
when it was first enacted demonstrates how broader language is
necessary to expand the scope of the EAJA. Moreover, the federal
EAJA is broader than our state version in another manner -- it
allows for recovery by a prevailing party whether the action is
brought "by or against the United States or any agency" (28 USC §
2412 [a] [1]), while our EAJA is limited to only actions "brought
against the state" (CPLR 8601 [a]). The plurality's decision to
read the State EAJA as "entirely consistent with its federal
counterpart" (plurality op at 11) is not supported by the
language of the statute or our precedent.

                              - 14 -
                              - 15 -                          No. 36

          The legislature's recent amendment to the Human Rights
Law, awarding attorneys' fees to prevailing parties in certain
discrimination suits, echoes this federal scheme and further
undermines plaintiff's interpretation.    The change reflects a
legislative belief that, prior to the amendment, fees were not
recoverable in gender-based discrimination actions.    In fact, the
sponsors' memorandum for the amendment is devoid of reference to
the EAJA and refers to the fact that "because [the HRL] does not
provide for an award of attorneys fees, many plaintiffs are
unable to pursue the vindication of their rights" (Sponsors' Mem,
L 2015, ch 364).   The legislature's understanding at the time of
the HRL amendments that individuals in similar situations to
plaintiff were not able to recover attorneys' fees for Human
Rights Law claims further supports a narrow interpretation of the
statute's limitations. Instead, the plurality's opinion opens the
door to awards of attorneys' fees in numerous other actions,
exclusively against the State, for compensatory damages not
contemplated by the holding herein and not subject to fees under
the revised provisions of the Human Rights Law.
                                IV.
          The meaning of article 86 has been plain to courts in
this State for the past 28 years.     New York courts have applied
article 86 only in the context of article 78 proceedings,
declaratory judgment actions, and actions for injunctive relief.
In more than 70 published cases contemplating article 86, courts


                              - 15 -
                              - 16 -                          No. 36

have considered it exclusively in the context of actions seeking
judicial review of agency administrative actions.   For example,
Supreme Court, Erie County granted attorneys' fees to a
petitioner in an article 78 proceeding seeking to annul a
determination of an administrative law judge of the State Office
of Children and Family Service sustaining a maltreatment report
against petitioner (Wright v New York State Office of Children &
Family Servs., 2003 WL 21665633 [Sup Ct Erie County 2003]).
Likewise, the Second Department addressed whether attorneys' fees
were owed to a petitioner in an article 78 proceeding challenging
the termination of petitioner's personal care benefits by the
Westchester County Department of Social Services (Barnett v New
York State Dept. of Soc. Servs., 212 AD2d 696 [2d Dept 2012]).
Similarly, in annual reports issued pursuant to section 8604 from
2004 through 2014, all included awards were granted in cases that
fit this description.   For example, in fiscal year 2014, each of
the reported suits awarding attorneys' fees pursuant to the EAJA
involved a challenge to state agency action (see Letter from
Thomas DiNapoli to Governor Cuomo re Article 86 Report [Nov. 13,
2014]).   These cases demonstrate the type of litigation to which
the statute is intended to apply, in which a plaintiff with
limited resources and a limited potential monetary recovery would
need assistance "fighting City Hall."   During the same period, in
more than 10 annual reports made of fee awards under the EAJA,
there is no record of a single case in which plaintiff attempted


                              - 16 -
                                   - 17 -                           No. 36

to obtain attorneys' fees under article 86 in a suit seeking
predominantly compensatory damages -- until now.
                                     V.
             The facts of this case are compelling, both as to the
injuries suffered by the plaintiff and the conduct engaged in by
the defendant.9    But in response the plurality establishes a rule
that will have repercussions well beyond awarding fees to this
particular plaintiff's attorneys.         The plurality does this in
contradiction to the plain meaning of the statute, the
unequivocal legislative history, and the interpretation given to
the statute by courts and litigants for the past 28 years.          Their
motives in doing so are understandable, but the rule created is
nevertheless unsupportable.
             Accordingly, I dissent.
*   *    *     *   *   *   *   *     *      *   *   *   *   *   *   *   *
Judgment appealed from, and order of the Appellate Division
insofar as bought up for review, affirmed, with costs. Opinion
by Chief Judge DiFiore. Judges Rivera and Acosta concur. Judge
Wilson concurs in the result in a separate concurring opinion.
Judge Garcia dissents in an opinion in which Judge Stein concurs.
Judge Fahey took no part.

Decided May 9, 2017




     9
       Alternative remedies exist to punish and prevent the
dilatory conduct engaged in by the State, including sanctions.
In fact, as discussed, State defendants in this case were
sanctioned multiple times and settled one such motion by agreeing
to pay more than $76,000 in attorneys' fees.

                                   - 17 -
