S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   2865
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 27, 2023
                                ___________
 
 Introduced  by M. of A. SEAWRIGHT, ROZIC, TAYLOR, STECK, SIMON, EPSTEIN,
   CRUZ, GALLAGHER -- read once and referred to the Committee on  Judici-
   ary
 
 AN  ACT to amend the civil practice law and rules and the executive law,
   in relation to  jury  awards  for  unlawful  discriminatory  practices
   relating to employment

   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Subdivision (a) of rule 4404 of the civil practice law  and
 rules,  such  rule  as renumbered by chapter 315 of the laws of 1962, is
 amended to read as follows:
   (a) Motion after trial where jury required. After a trial of  a  cause
 of  action  or  issue triable of right by a jury, upon the motion of any
 party or on its own initiative, the court may set aside a verdict or any
 judgment entered thereon and direct that judgment be entered in favor of
 a party entitled to judgment as a matter of law or it may  order  a  new
 trial  of  a  cause  of  action  or separable issue where the verdict is
 contrary to the weight of the evidence, in the interest  of  justice  or
 where  the jury cannot agree after being kept together for as long as is
 deemed reasonable by the court. NO COURT SHALL ORDER A NEW TRIAL ON  THE
 GROUND THAT THE JURY AWARD WAS EXCESSIVE, OR OTHERWISE ACT TO REDUCE THE
 JURY'S  AWARD  IN  A  CASE INVOLVING AN UNLAWFUL DISCRIMINATORY PRACTICE
 UNDER SECTION TWO HUNDRED NINETY-SIX OF THE EXECUTIVE  LAW  RELATING  TO
 EMPLOYMENT,  INCLUDING  A  CLAIM  BY  A  NON-EMPLOYEE  UNDER SECTION TWO
 HUNDRED NINETY-SIX-D OF THE EXECUTIVE LAW, WITHOUT FULLY SATISFYING  THE
 PERTINENT  STANDARDS  SET  FORTH  IN PARAGRAPH TWO OF SUBDIVISION (C) OF
 SECTION FIFTY-FIVE HUNDRED ONE OF THIS  CHAPTER  AND  PARAGRAPH  (B)  OF
 SUBDIVISION  NINE  OF  SECTION TWO HUNDRED NINETY-SEVEN OF THE EXECUTIVE
 LAW.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD00427-01-3
 A. 2865                             2
 
              

   § 2. Subdivision (c) of section 5501 of the  civil  practice  law  and
 rules, as amended by chapter 474 of the laws of 1997, is amended to read
 as follows:
   (c)  Appellate  division. 1. The appellate division shall review ques-
 tions of law and questions of fact on an appeal from a judgment or order
 of a court of original instance and on an appeal from an  order  of  the
 supreme  court,  a  county  court  or  an  appellate term determining an
 appeal.  The notice of appeal from an order directing summary  judgment,
 or  directing  judgment on a motion addressed to the pleadings, shall be
 deemed to specify a judgment upon said order entered  after  service  of
 the  notice  of  appeal  and  before entry of the order of the appellate
 court upon such appeal, without however affecting the taxation of  costs
 upon the appeal.  In reviewing a money judgment in an action in which an
 itemized  verdict  is  required by rule forty-one hundred eleven of this
 chapter in which it is contended that the award is excessive  or  inade-
 quate and that a new trial should have been granted unless a stipulation
 is  entered to a different award, the appellate division shall determine
 that an award is excessive or inadequate if it deviates materially  from
 what would be reasonable compensation.
   2.  WHERE AN AWARD IS MADE BY A JURY FOR ANY DAMAGES IN A CASE INVOLV-
 ING AN UNLAWFUL DISCRIMINATORY PRACTICE UNDER SECTION TWO HUNDRED  NINE-
 TY-SIX OF THE EXECUTIVE LAW RELATING TO EMPLOYMENT, INCLUDING A CLAIM BY
 A  NON-EMPLOYEE  UNDER SECTION TWO HUNDRED NINETY-SIX-D OF THE EXECUTIVE
 LAW, THE JURY'S VERDICT IS  PRESUMED  TO  BE  CORRECT  AND  ENTITLED  TO
 SUBSTANTIAL  DEFERENCE. ANY SUCH AWARD SHALL NOT BE DISTURBED UNLESS THE
 COURT FINDS THAT THE  PROPONENT  HAS  PROVEN  BY  CLEAR  AND  CONVINCING
 EVIDENCE  THAT  THE  VERDICT  COMPELS  THE  CONCLUSION THAT THE JURY WAS
 INFLUENCED BY PARTIALITY, PREJUDICE, MISTAKE OR CORRUPTION, AND REMITTI-
 TUR OR ADDITUR IS NECESSARY TO AVOID A COMPLETE MISCARRIAGE OF  JUSTICE.
 IN  MAKING  SUCH DETERMINATION, THE COURT SHALL NOT SUBSTITUTE ITS JUDG-
 MENT FOR THE JURY'S, SHALL GIVE PRIMARY WEIGHT TO THE  REMEDIAL  PURPOSE
 OF  THE  LAW, AND SHALL NOT LIMIT ANY AWARD BY INCLUSION IN OR EXCLUSION
 FROM ANY CATEGORY OF CASE OR BY USING  ANY  CHARACTERIZATIONS  OF  OTHER
 DAMAGE AWARDS. IN REVIEWING ANY SUCH VERDICT IN ANY CASE FILED AFTER THE
 EFFECTIVE  DATE  OF  THIS PARAGRAPH, THE COURT SHALL NOT BE BOUND BY ANY
 PRECEDENT WHICH UTILIZED THE CONCEPT OF  MATERIAL  DEVIATION  FROM  WHAT
 WOULD  BE  REASONABLE  COMPENSATION,  OR A JUDGE'S PERSONAL KNOWLEDGE OR
 EXPERIENCES FROM PRIOR CASES. THE EVIDENCE  SHALL  BE  REVIEWED  IN  THE
 LIGHT  MOST FAVORABLE TO SUSTAINING THE VERDICT. A COURT SHOULD EXERCISE
 ITS AUTHORITY TO ORDER A REMITTITUR OR ADDITUR ONLY IN THE  MOST  EXCEP-
 TIONAL OF CIRCUMSTANCES.
   §  3. 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. (A) Any person claiming to be aggrieved by an unlawful  discrimina-
 tory  practice  shall have a cause of action in any court of appropriate
 jurisdiction for damages, including, in cases  of  employment  discrimi-
 nation  related  to  private  employers and housing discrimination only,
 punitive damages, and such other remedies as may be appropriate, includ-
 ing 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 pursuant to
 the provisions of section two  hundred  ninety-six-a  of  this  article,
 provided  that,  where  the division has dismissed such complaint on the
 grounds of administrative convenience, on the grounds  of  untimeliness,
 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
 A. 2865                             3
 
 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
 election  of  remedies so that the human rights law 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 stat-
 ute 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  determi-
 nation  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 commission 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 subdivi-
 sion. 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 proba-
 ble 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 pursuant 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 ninety-six of this article. Nothing in this
 section shall in any way limit rights or remedies  which  are  otherwise
 available  under law to the attorney general or any other person author-
 ized to bring an action under this section.
   (B) A VERDICT INVOLVING  AN  UNLAWFUL  DISCRIMINATORY  PRACTICE  UNDER
 SECTION  TWO  HUNDRED NINETY-SIX OF THIS ARTICLE RELATING TO EMPLOYMENT,
 INCLUDING A CLAIM BY A NON-EMPLOYEE UNDER SECTION  TWO  HUNDRED  NINETY-
 SIX-D OF THIS ARTICLE, SHALL NOT BE SUBJECT TO REMITTITUR OR ADDITUR, OR
 GRANTING  OF  A  MOTION FOR NEW TRIAL ON THE GROUND THAT THE VERDICT WAS
 EXCESSIVE OR INADEQUATE, OR OTHERWISE REDUCED OR INCREASED,  UNLESS  THE
 COURT  FINDS  THAT  THE  PARTY  SEEKING REMITTITUR OR ADDITUR HAS MADE A
 CLEAR AND CONVINCING SHOWING THAT COMPELS THE CONCLUSION THAT  THE  JURY
 WAS  INFLUENCED BY PARTIALITY, PREJUDICE, MISTAKE OR CORRUPTION AND THAT
 REMITTITUR OR ADDITUR IS NECESSARY TO AVOID A  COMPLETE  MISCARRIAGE  OF
 JUSTICE.  IN MAKING SUCH DETERMINATION, A JURY VERDICT SHALL BE PRESUMED
 TO BE CORRECT AND ENTITLED TO SUBSTANTIAL DEFERENCE. THE COURT SHALL NOT
 SUBSTITUTE ITS JUDGMENT FOR THE JURY'S, SHALL GIVE PRIMARY WEIGHT TO THE
 REMEDIAL PURPOSE OF THE LAW, AND SHALL NOT LIMIT ANY AWARD BY  INCLUSION
 A. 2865                             4
 
 IN  OR  EXCLUSION  FROM ANY CATEGORY OF CASE OR ANY CHARACTERIZATIONS OF
 OTHER DAMAGE AWARDS. IN REVIEWING ANY VERDICT IN ANY  CASE  FILED  AFTER
 THE  EFFECTIVE  DATE  OF THIS PARAGRAPH, THE COURT SHALL NOT BE BOUND BY
 ANY PRECEDENT WHICH UTILIZED THE CONCEPT OF MATERIAL DEVIATION FROM WHAT
 WOULD  BE REASONABLE COMPENSATION. A COURT SHOULD EXERCISE ITS AUTHORITY
 TO ORDER A REMITTITUR OR ADDITUR ONLY IN THE MOST EXCEPTIONAL OF CIRCUM-
 STANCES. THIS PROVISION IS SUBSTANTIVE IN NATURE, AS OPPOSED  TO  PROCE-
 DURAL,  AND  SHALL BE SO APPLIED IN ANY EMPLOYMENT DISCRIMINATION ACTION
 UNDER THIS ARTICLE, REGARDLESS OF FORUM.
   § 4. This act shall take effect immediately.