S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5065
 
                        2025-2026 Regular Sessions
 
                             I N  S E N A T E
 
                             February 18, 2025
                                ___________
 
 Introduced by Sen. SEPULVEDA -- read twice and ordered printed, and when
   printed to be committed to the Committee on Investigations and Govern-
   ment Operations
 
 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
 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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD07232-01-5
              

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 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  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-
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 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.