A former state trooper who sued the state police agency for sex discrimination, sexual harassment and retaliation under the Human Rights Law is entitled to legal fees and expenses under the state’s Equal Access to Justice Act (EAJA), an upstate appellate court ruled on Friday.
In Kimmel v. State, 13-01417, the Appellate Division, Fourth Department, affirmed Supreme Court Justice Evelyn Frazee (See Profile) of Monroe County in holding that Betty Kimmel had sufficiently established that she had a net worth of less than $50,000 when the case was filed.
The EAJA, similar to a federal statute, allows prevailing parties in discrimination actions to obtain counsel fees if their income falls under a certain threshold. For federal purposes, that threshold is $2 million.
The state had disputed that Kimmel was eligible for counsel fees under the law, but the plaintiff’s proof, including a bankruptcy petition that she and her husband filed, persuaded Frazee and the Fourth Department that she met the EAJA test.
In a unanimous memorandum by Presiding Justice Henry Scudder (See Profile) and Justices Nancy Smith (See Profile), Edward Carni (See Profile), Stephen Lindley (See Profile) and Rose Sconiers (See Profile), the court said the proof was “more than ample” to sustain an award of counsel fees.
The court said Frazee properly credited the bankruptcy petition as well as an affidavit from her accountant. It sent the case back to Frazee to determine the amount of legal fees and disbursements Kimmel incurred defending the appeal.
Harriet Zunno of Hilton appeared for Kimmel. Bradley Hoppe of Jaeckle Fleischmann & Mugel represented the state and the state police. A. Vincent Buzard of Harris Beach in Pittsford represented another respondent identified as an “interested party.”