S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  2182--A
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 23, 2023
                                ___________
 
 Introduced  by  M.  of A. DINOWITZ, SEAWRIGHT, PAULIN, STECK, SHIMSKY --
   Multi-Sponsored by -- M. of A. SIMON -- read once and referred to  the
   Committee  on  Governmental Operations -- recommitted to the Committee
   on Governmental Operations in accordance with Assembly Rule 3, sec.  2
   --  committee  discharged,  bill amended, ordered reprinted as amended
   and recommitted to said committee
 
 AN ACT to amend the executive law, in relation  to  awarding  attorneys'
   fees  and  costs  in  an action brought for an unlawful discriminatory
   practice
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  Subdivision  9  of  section  297 of the executive law, as
 amended by chapter 140 of the laws  of  2022,  is  amended  to  read  as
 follows:
   9.  Any  person claiming to be aggrieved by an unlawful discriminatory
 practice shall have a cause of action in any court of appropriate juris-
 diction for damages[, including, in cases of  employment  discrimination
 related  to  private employers and housing discrimination only,] AND MAY
 AWARD punitive damages, and such other remedies as may  be  appropriate,
 including  any civil fines and penalties provided in subdivision four of
 this section, unless such person had filed a complaint hereunder or with
 any local commission on human rights, or with the superintendent  pursu-
 ant  to the provisions of section two hundred ninety-six-a of this arti-
 cle, provided that, where the division has dismissed such  complaint  on
 the  grounds  of administrative convenience, on the grounds of untimeli-
 ness, or on the grounds that the election of remedies is annulled,  such
 person  shall  maintain  all rights to bring suit as if no complaint had
 been filed with the division. At any time prior to a  hearing  before  a
 hearing  examiner,  a person who has a complaint pending at the division
 may request that the division dismiss the complaint and  annul  [his  or
 her]  SUCH  PERSON'S  election  of remedies so that the human rights law
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD04983-02-4
              

 A. 2182--A                          2
 
 claim may be pursued in court, and the division may, upon such  request,
 dismiss  the  complaint on the grounds that such person's election of an
 administrative remedy is annulled. Notwithstanding  subdivision  (a)  of
 section  two  hundred  four  of  the  civil practice law and rules, if a
 complaint is so annulled by the division, upon the request of the  party
 bringing  such  complaint  before  the  division, such party's rights to
 bring such cause of action before a court  of  appropriate  jurisdiction
 shall  be  limited by the statute of limitations in effect in such court
 at the time the complaint was initially filed  with  the  division.  Any
 party  to a housing discrimination complaint shall have the right within
 twenty days following a determination  of  probable  cause  pursuant  to
 subdivision  two of this section to elect to have an action commenced in
 a civil court, and an attorney representing the division of human rights
 will be appointed to present  the  complaint  in  court,  or,  with  the
 consent  of  the  division,  the  case may be presented by complainant's
 attorney. A complaint filed by the equal employment opportunity  commis-
 sion  to  comply  with  the requirements of 42 USC 2000e-5(c) and 42 USC
 12117(a) and 29  USC  633(b)  shall  not  constitute  the  filing  of  a
 complaint  within  the  meaning  of  this subdivision. No person who has
 initiated any action in a court of competent jurisdiction or who has  an
 action  pending  before any administrative agency under any other law of
 the state based upon an act which would be  an  unlawful  discriminatory
 practice  under  this  article, may file a complaint with respect to the
 same grievance under this section or under section two  hundred  ninety-
 six-a of this article. In cases of housing discrimination only, a person
 whose  complaint  has been dismissed by the division after investigation
 for lack of jurisdiction or lack of probable cause  may  file  the  same
 cause  of action in a court of appropriate jurisdiction pursuant to this
 section, unless judicial review of such dismissal has been sought pursu-
 ant to section two hundred ninety-eight of this  article.  The  attorney
 general  shall have the power to commence an action or proceeding in the
 supreme court of the state of New York, if, upon information or  belief,
 the attorney general is of the opinion that an employer has been, is, or
 is  about  to  violate  the provisions regarding unlawful discriminatory
 retaliation pursuant to subdivision seven of section two  hundred  nine-
 ty-six  of  this article. Nothing in this section shall in any way limit
 rights or remedies which are otherwise available under law to the attor-
 ney general or any other person authorized to bring an action under this
 section.
   § 2. Subdivision 10 of section 297 of the executive law, as amended by
 chapter 154 of the laws of 2022, is amended to  read as follows:
   10. (A) In an action or proceeding  at  law  under  this  section  THE
 COMMISSIONER  OR  THE  COURT  SHALL AWARD REASONABLE ATTORNEYS' FEES AND
 COSTS IN THE ACTION TO A PREVAILING PARTY CLAIMING TO BE AGGRIEVED BY AN
 UNLAWFUL DISCRIMINATORY PRACTICE, EXCEPT THAT ATTORNEYS' FEES SHALL  NOT
 BE  AWARDED  TO  THE  DIVISION,  NOR  SHALL  THE DIVISION BE LIABLE TO A
 PREVAILING OR SUBSTANTIALLY PREVAILING PARTY FOR ATTORNEYS' FEES, EXCEPT
 IN A CASE IN WHICH THE DIVISION IS A PARTY TO THE ACTION OR THE PROCEED-
 ING IN THE DIVISION'S CAPACITY AS AN EMPLOYER. EXPERT WITNESS  FEES  MAY
 BE AWARDED IN THE SAME MANNER AS ATTORNEYS' FEES.
   (B)  IN  AN  ACTION OR PROCEEDING AT LAW UNDER THIS SECTION or section
 two hundred ninety-eight of this article, the commissioner or the  court
 may  in  its discretion award reasonable [attorney's] ATTORNEYS' fees to
 any prevailing [or substantially prevailing party] RESPONDENT OR DEFEND-
 ANT; provided, however, that a prevailing  respondent  or  defendant  in
 order  to recover such reasonable [attorney's] ATTORNEYS' fees must make
 A. 2182--A                          3
 
 a motion requesting such fees and show that  the  action  or  proceeding
 brought was frivolous; and further provided that in a proceeding brought
 in the division of human rights, the commissioner may only award [attor-
 ney's]  ATTORNEYS'  fees TO A PREVAILING RESPONDENT OR DEFENDANT as part
 of a final order after a public hearing  held  pursuant  to  subdivision
 four  of  this  section. [In no case shall attorney's fees be awarded to
 the division, nor shall the  division  be  liable  to  a  prevailing  or
 substantially  prevailing party for attorney's fees, except in a case in
 which the division is a party to the action or  the  proceeding  in  the
 division's  capacity as an employer.] Expert witness fees may be awarded
 in the same manner as [attorney's] ATTORNEYS' fees. [In cases of employ-
 ment discrimination, a respondent shall only be  liable  for  attorney's
 fees  under this subdivision if the respondent has been found liable for
 having committed an unlawful discriminatory practice.] In order to  find
 the  action or proceeding to be frivolous, the court or the commissioner
 must find in writing one or more of the following:
   [(a)] (I) the action or proceeding was commenced, used or continued in
 bad faith, solely to delay or prolong the resolution of  the  litigation
 or to harass or maliciously injure another; or
   [(b)]  (II) the action or proceeding was commenced or continued in bad
 faith without any reasonable basis and could not be supported by a  good
 faith  argument  for  an extension, modification or reversal of existing
 law. If the action or proceeding  was  promptly  discontinued  when  the
 party  or  attorney  learned  or  should have learned that the action or
 proceeding lacked such a reasonable basis, the court may find  that  the
 party or the attorney did not act in bad faith.
   §  3.  This  act shall take effect on the thirtieth day after it shall
 have become a law.