S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8282
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                            September 17, 2021
                                ___________
 
 Introduced  by  M.  of  A.  SEAWRIGHT  --  read once and referred to the
   Committee on Judiciary
 
 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.
   §  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:

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD10273-03-1

 A. 8282                             2
 
   (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  separately
 amended  by  chapter 160 of the laws of 2019 and chapter 236 of the laws
 of 2020, 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  [chapter]
 ARTICLE,  provided that, where the division has dismissed such complaint
 on the grounds of administrative convenience, on the grounds of  untime-
 liness,  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

 A. 8282                             3
 
 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.
   (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
 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.