S T A T E O F N E W Y O R K
________________________________________________________________________
2865--A
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, SHRESTHA, RAJKUMAR, WEPRIN -- read once and referred
to the Committee on Judiciary -- recommitted to the Committee on Judi-
ciary 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 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, OR UNDER ANY ANALOGOUS LOCAL
OR MUNICIPAL HUMAN RIGHTS LAW, IF APPLICABLE, 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
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD00427-05-3
A. 2865--A 2
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:
(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, OR UNDER ANY ANALO-
GOUS LOCAL OR MUNICIPAL HUMAN RIGHTS LAW, 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. ANY SUCH JURY AWARD
SHALL NOT BE DISTURBED UNLESS THE COURT FINDS, REVIEWING THE EVIDENCE IN
THE LIGHT MOST FAVORABLE TO SUSTAINING THE VERDICT, EXCEPTIONAL CIRCUM-
STANCES WHICH COMPEL THE CONCLUSION THAT (I) THE JURY WAS INFLUENCED BY
PARTIALITY, PREJUDICE, MISTAKE OR CORRUPTION, AND (II) REMITTITUR OR
ADDITUR IS NECESSARY TO AVOID A COMPLETE MISCARRIAGE OF JUSTICE. IN
MAKING SUCH DETERMINATION, THE COURT SHALL GIVE PRIMARY WEIGHT TO THE
REMEDIAL PURPOSE OF THE LAW, AND SHALL NOT LIMIT ANY AWARD BY USING ANY
CHARACTERIZATIONS OF OTHER DAMAGE AWARDS. IN ANY SUCH CASE, THE COURT
SHALL NOT BE BOUND BY ANY PRECEDENT WHICH UTILIZED THE CONCEPT OF MATE-
RIAL DEVIATION FROM WHAT WOULD BE REASONABLE COMPENSATION, OR A JUDGE'S
PERSONAL KNOWLEDGE OR EXPERIENCES FROM PRIOR CASES.
§ 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
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
A. 2865--A 3
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, OR UNDER ANY ANALOGOUS LOCAL OR HUMAN RIGHTS LAW,
IF APPLICABLE, SHALL NOT BE SUBJECT TO REMITTITUR OR ADDITUR, OR GRANT-
ING OF A MOTION FOR NEW TRIAL ON THE GROUND THAT THE VERDICT WAS EXCES-
SIVE OR INADEQUATE, OR OTHERWISE REDUCED OR INCREASED, UNLESS THE COURT
FINDS, REVIEWING THE EVIDENCE IN THE LIGHT MOST FAVORABLE TO SUSTAINING
THE VERDICT, EXCEPTIONAL CIRCUMSTANCES WHICH COMPEL THE CONCLUSION THAT
(I) THE JURY WAS INFLUENCED BY PARTIALITY, PREJUDICE, MISTAKE OR
CORRUPTION AND (II) THAT REMITTITUR OR ADDITUR IS NECESSARY TO AVOID A
COMPLETE MISCARRIAGE OF JUSTICE. IN MAKING SUCH DETERMINATION, THE COURT
SHALL GIVE PRIMARY WEIGHT TO THE REMEDIAL PURPOSE OF THE LAW, AND SHALL
NOT LIMIT ANY AWARD BY USING ANY CHARACTERIZATIONS OF OTHER DAMAGE
AWARDS. IN ANY SUCH CASE, THE COURT SHALL NOT BE BOUND BY ANY PRECEDENT
WHICH UTILIZED THE CONCEPT OF MATERIAL DEVIATION FROM WHAT WOULD BE
REASONABLE COMPENSATION. THIS PROVISION IS SUBSTANTIVE IN NATURE, AS
A. 2865--A 4
OPPOSED TO PROCEDURAL, AND SHALL BE SO APPLIED IN ANY EMPLOYMENT
DISCRIMINATION ACTION UNDER THIS ARTICLE, REGARDLESS OF FORUM.
§ 4. This act shall take effect immediately and shall apply to all
pending cases where a verdict has not yet been reached as of such effec-
tive date, as well as all claims filed on or after such effective date.