author: ClPARICK, J.

text:
    [820 NE2d 863, 787 NYS2d 219]
    The People of the State of New York, Respondent, v Ederick Fabricio, Appellant.
    Argued October 21, 2004;
    decided December 2, 2004

      POINTS OF COUNSEL

      Office of the Appellate Defender, New York City (Michael Pinard, Richard M. Greenberg and Daniel A. Warshawsky of counsel), for appellant.
    The trial court violated Ederick Fabricio’s federal constitutional rights as well as his state constitutional and statutory rights when it conducted a Sandoval/ Ventimiglia hearing during his cross-examination outside his presence, as Mr. Fabricio waited on the witness stand and while the jury remained in the courtroom. (Snyder v Massachusetts, 291 US 97; People v Dokes, 79 NY2d 656; People v Spotford, 85 NY2d 593; People v Sandoval, 34 NY2d 371; People v Fardan, 82 NY2d 638; People v Rodriguez, 85 NY2d 586; People v Dickerson, 87 NY2d 914; People v Haywood, 280 AD2d 282, 97 NY2d 641; People v Corcos, 288 AD2d 40.)

      Robert M. Morgenthau, District Attorney, New York City (Patrick J. Hynes and Hilary Hassler of counsel), for respondent.
    Defendant had no right to be present at a sidebar discussion, held while he was testifying, during which the prosecutor informed the court of his good faith basis for inquiring about a prior inconsistent statement. (People v Velasquez, 1 NY3d 44; People v Maher, 89 NY2d 318; People v Andrew, 1 NY3d 546; People v Cody, 260 AD2d 718; People v Antommarchi, 80 NY2d 247; People v Dokes, 79 NY2d 656; People v Robles, 86 NY2d 763; People v Narayan, 54 NY2d 106; People v Torres, 267 AD2d 261; People v Sprowal, 84 NY2d 113.)
   OPINION OF THE COURT

ClPARICK, J.

On this appeal, the issue presented is whether a sidebar conference held while defendant was on the witness stand and the jury was seated in the jury box constituted either a Sandoval or Ventimiglia hearing, at which defendant had a right to be present (see People v Sandoval, 34 NY2d 371 [1974]; see also People v Ventimiglia, 52 NY2d 350 [1981]). Because the sidebar concerned only a legal issue, we conclude that the conference was not a Sandoval or a Ventimiglia hearing, and defendant’s right to be present was not violated.

In connection with the robbery and shooting death of Jose Perez, defendant was arrested and charged with murder in the second degree, robbery in the first degree and robbery in the second degree. Under direct examination, defendant testified that he traveled by plane from Florida to New York on the day before the charged crimes took place. He further testified that Pedro Aviles, an accomplice, paid his airfare. During cross-examination, defendant again maintained that he did not pay for his airline ticket.

The People requested a sidebar conference which took place while defendant was on the witness stand and the jury was in the jury box. The record reflects that the trial judge, prosecutor and defense counsel were present at the conference. We do not know the exact location of the sidebar, but for purposes of our analysis will assume that all discussions were held out of defendant’s presence. During the sidebar, the following colloquy took place:

“[prosecutor]: I’d ask for a ruling on a Sandoval Ventimiglia situation. The defendant told Pedro and the cab driver on the trip from Kennedy [Airport] to Yonkers that he got the money for the ticket by doing a robbery. And that that is how he got up here.
“[defense counsel]: That the defendant got the money—
“[prosecutor]: The defendant did.. And I want to inquire about that.
“[defense counsel]: Obviously, I would object to first of all, I never seen the statement or heard about the statement at all. The statement allegedly made by the defendant as to where all the evidence has been, the defendant came up to New York and got the money. Got the ticket because Pedro had bought a pre-purchased ticket for him.
“[prosecutor]: He never told any law enforcement that this is through the cab driver.
“[defense counsel]: I am going to object to it.
“the court: He has a good faith basis for asking. I don’t know if it is a Sandoval Ventimiglia.
“[prosecutor]: It may not be.”

The sidebar was then concluded, and the court ordered a brief recess.

Cross-examination resumed, and defendant affirmatively recalled his previous testimony that he did not pay for his airline ticket. Thereafter, the prosecutor asked defendant “didn’t you explain to Pedro and to [the taxi driver] that in order to get the plane up here and pay for it, you had to commit a robbery?” Over objection, defendant answered in the negative. No further inquiries were made concerning the alleged statement.

At the conclusion of the trial, Supreme Court convicted defendant, upon a jury verdict, of murder in the second degree and robbery in the first and second degrees, and sentenced him to concurrent terms of 25 years to life, 12V2 to 25 years and 5 to 15 years. Defendant appealed his conviction arguing that he was denied his right to be present at a material stage of trial by his exclusion from the sidebar conference, which he characterized as a Sandoval/Ventimiglia hearing (see People v Sandoval, 34 NY2d 371 [1974]; see also People v Ventimiglia, 52 NY2d 350 [1981]).

The Appellate Division, over a one-Justice dissent, rejected this argument and affirmed the conviction, reasoning that the record did not establish defendant’s absence from the sidebar and that, “[i]n any event, the conference concerned a pure issue of law as to whether the prosecutor had a good faith basis for questioning defendant about a prior inconsistent statement” (307 AD2d 882, 883 [2003] [citations omitted]). The dissenting Justice voted to reverse defendant’s conviction and remand the case for a new trial on the ground that the sidebar conference was a Sandoval hearing, at which defendant had a right to be present. By permission of the dissenting Justice, defendant appeals from the order of the Appellate Division, and we now affirm.

Defendant argues that the challenged sidebar conference constituted a Sandoval/Ventimiglia hearing and that, as a result of his absence, he was denied his statutory and constitutional right to be present during material stages of the criminal proceeding (see CPL 260.20; US Const 6th, 14th Amends; NY Const, art I, § 6). The People effectively counter that the conference involved only questions of law, making defendant’s presence during the discussion unnecessary (see People v Rodriguez, 85 NY2d 586, 591 [1995]).

In determining whether a defendant has a right to be present during a particular proceeding, an essential factor is the potential for the defendant to meaningfully participate in the subject discussions (see People v Spotford, 85 NY2d 593, 596 [1995]; see also People v Dokes, 79 NY2d 656, 661 [1992]). An important consideration “is whether the proceeding involved factual matters about which [the] defendant might have peculiar knowledge that would be useful in advancing the defendant’s or countering the People’s position” (Dokes, 79 NY2d at 660). In the Sandoval¡Ventimiglia context, the trial court balances the probative value of proposed evidence against its prejudicial impact, considering the nature of the defendant’s alleged prior bad acts and their similarity to the pending charges (see Dokes, 79 NY2d at 661).

Here, the sidebar conference focused on a pure question of law—whether defendant’s testimony “opened the door” to the use of his prior inconsistent statement and whether the People had a good faith basis to inquire about it. Defendant did not have a right to be present, as the subject legal discussion did not implicate his peculiar factual knowledge or otherwise present the potential for his meaningful participation (see People v Rodriguez, 85 NY2d 586, 591 [1995]). To be sure, in allowing the prosecutor to proceed with the inquiry, the trial court ruled that the People had a good faith basis for the question. The court correctly did not consider the application to be in the realm of Sandoval or Ventimiglia, requiring a balancing of prejudice and probative value (see Dokes, 79 NY2d at 661).

Moreover, defense counsel objected only on the ground that he had no notice or knowledge of defendant’s statement. The colloquy centered on that objection, and none of the parties to the conference made even a single inquiry about the uncharged robbery itself. For these reasons, any claim based on defendant’s absence from the conference is unpreserved for this Court’s review.

Accordingly, the order of the Appellate Division should be affirmed.

Chief Judge Kaye and Judges G.B. Smith, Rosenblatt, Graffeo, Read and R.S. Smith concur.

Order affirmed.

       It is noteworthy that the People made no further mention about the prior inconsistent statement or the alleged robbery but, during summation, stated that the evidence established that—as defendant testified—his accomplice Pedro Aviles paid his airfare.


source: Caselaw Access Project

author: Chief Judge Kaye. Read, J. (dissenting).

license: Public Domain

text:
    [821 NE2d 530, 788 NYS2d 292]
    Aldo Rubeis et al., Plaintiffs, v The Aqua Club, Inc., Doing Business as V.I.P. Tennis & Beach Club, Ltd., et al., Defendants. The Aqua Club, Inc., Third-Party Plaintiff-Appellant, v Venezia Iron Works, Inc., Third-Party Defendant-Respondent. Jorge Largo-Chicaiza, Plaintiff, v Westchester Scaffold Equipment Corp. et al., Defendants. Vermont Slate Roof Co. et al., Third-Party Plaintiffs, and Peter B. McCaffrey et al., Third-Party Plaintiffs-Appellants, v Salvatore Sanzo, Third-Party Defendant-Respondent. Thomas Knauer, Respondent, v Diane L. Anderson, as Executrix of William F. Anderson, Sr., et al., Defendants. Diane L. Anderson, as Executrix of William F. Anderson, Sr., et al., Third-Party Plaintiffs, and B.T.S. Services, Inc., Third-Party Plaintiff-Respondent, v Ronald A. Knauer, Jr., Doing Business as Knauer Electric, Third-Party Defendant-Appellant.
    Argued October 12, 2004;
    decided November 23, 2004

      POINTS OF COUNSEL

      Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success (Steven J. Ahmuty and Christopher Simone of counsel), for Aqua Club, Inc., defendant and third-party plaintiff-appellant in the first above-entitled action.
    I. Under the acquired brain injury category of “grave injury” in Workers’ Compensation Law § 11, the requirement of “permanent total disability” should be determined in reference to the injured worker’s employability, not the ability to engage in day-to-day functions. (Castro v United Container Mach. Group, 96 NY2d 398; Meis v ELO Org., 97 NY2d 714; Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577; Way v Grantling, 289 AD2d 790; Knauer v Anderson, 2 AD3d 1314; Schuler v Kings Plaza Shopping Ctr. & Mar., 294 AD2d 556; Dunn v Smithtown Bancorp, 286 AD2d 701; Fitzpatrick v Chase Manhattan Bank, 285 AD2d 487; Olszewki v Park Terrace Gardens, 306 AD2d 128; We’re Assoc. Co. v Cohen, Stracher & Bloom, 65 NY2d 148.) II. In the event this Court concludes that “employability” is the controlling standard, then in light of the jury’s verdict finding that plaintiff sustained a “grave injury” under Workers’ Compensation Law § 11, Aqua Club is entitled to reversal of the Appellate Division’s order and reinstatement of the indemnification judgment in its favor. (Alexander v Eldred, 63 NY2d 460.)

      Michael J. Hutter, Albany, for third-party defendant-respondent in the first above-entitled action.
    I. The requirement of an injured worker’s “permanent total disability” under the acquired brain injury category of “grave injury” in Workers’ Compensation Law § 11 must be determined in reference to the worker’s ability to engage in life’s daily activities, and where it is undisputed, as here, that the competent medical proof shows the employee has some ability, physical and mental, albeit on a diminished level, as compared to the worker’s preaccident abilities, there is no “permanent total disability” and thus no “grave injury.” (Westchester Light. Co. v Westchester County Small Estates Corp., 278 NY 175; Dole v Dow Chem. Co., 30 NY2d 143; Ibarra v Equipment Control, 268 AD2d 13; Kelly v Long Is. Light. Co., 31 NY2d 25; Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577; Castro v United Container Mach. Group, 96 NY2d 398; Meis v ELO Org., 97 NY2d 714; Patrolmen’s Benevolent Assn. v City of New York, 41 NY2d 205; People v White, 73 NY2d 468; Council of City of N.Y. v Giuliani, 93 NY2d 60.) II. Assuming arguendo that this Court concludes that “permanent total disability” is to be determined solely in reference to plaintiffs ability to engage in employment, a new trial on the issue of whether plaintiff sustained a “permanent total disability” under that employability standard must be ordered.

      Fishman, Dorfman & Callahan, Pearl River (Jayne F. Monahan of counsel), for third-party plaintiffs-appellants in the second above-entitled action.
    I. There are conflicts in the rulings of the Appellate Division Departments on the interpretation of permanent total disability. (Schuler v Kings Plaza Shopping Ctr. & Mar., 294 AD2d 556; Dunn v Smithtown Bancorp, 286 AD2d 701; Fitzpatrick v Chase Manhattan Bank, 285 AD2d 487; Way v Grantling, 289 AD2d 790; Knauer v Anderson, 2 AD3d 1314.) II. The Second Department’s definition of permanent total disability is too narrow. (Castro v United Container Mach. Group, 96 NY2d 398.) III. Plaintiff Jorge Largo-Chicaiza suffered a grave injury utilizing the definitions as set forth by the Third and Fourth Departments.

      Baxter & Smith, PC., White Plains (Robert C. Baxter and Sim R. Shapiro of counsel), for third-party defendant-respondent in the second above-entitled action.
    I. The Appellate Division, Second Department, has correctly defined the term “permanent total disability.” (Castro v United Container Mach. Group, 96 NY2d 398; Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577; Aguirre v Castle Am. Constr., 307 AD2d 901; Trimble v Hawker Dayton Corp., 307 AD2d 452; Way v Grantling, 289 AD2d 790; Tassone v Mid-Valley Oil Co., 291 AD2d 623; Knauer v Anderson, 2 AD3d 1314; Schuler v Kings Plaza Shopping Ctr. & Mar., 294 AD2d 556; Dunn v Smithtown Bancorp, 286 AD2d 701; Rubeis v Aqua Club, 305 AD2d 656.) II. Under the Appellate Division, Second Department’s interpretation of “permanent total disability,” plaintiff, Jorge Largo-Chicaiza, did not sustain a “grave injury” pursuant to Workers’ Compensation Law § 11. (Rubeis v Aqua Club, 305 AD2d 656; Schuler v Kings Plaza Shopping Ctr. & Mar., 294 AD2d 556; Dunn v Smithtown Bancorp, 286 AD2d 701; Barbieri v Mount Sinai Hosp., 264 AD2d 1.) III. Even using the definition of the Appellate Division, Third Department, in Way v Grantling (289 AD2d 790 [2001]) in which it held that “permanent total disability” relates to a plaintiffs employability, Jorge Largo-Chicaiza has not sustained a “grave injury.”

      Michael J. Hutter, Albany, and Underberg & Kessler, LLP, Buffalo (J. David Sampson of counsel), for third-party defendant-appellant in the third above-entitled action.
    I. The requirement of an injured worker’s “permanent total disability” under the acquired brain injury category of “grave injury” in Workers’ Compensation Law § 11 must be determined in reference to the worker’s ability to engage in life’s daily activities, and where it is undisputed, as here, that the competent medical proof shows the employee has some ability, physical and mental, albeit on a diminished level as compared to the worker’s preaccident abilities, there is no “permanent total disability” and thus no “grave injury.” (Westchester Light. Co. v Westchester County Small Estates Corp., 278 NY 175; Dole v Dow Chem. Co., 30 NY2d 143; Ibarra v Equipment Control, 268 AD2d 13; Kelly v Long Is. Light. Co., 31 NY2d 25; Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577; Castro v United Container Mach. Group, 96 NY2d 398; Meis v ELO Org., 97 NY2d 714; Patrolmen’s Benevolent Assn. v City of New York, 41 NY2d 205; People v White, 73 NY2d 468; Council of City of N.Y. v Giuliani, 93 NY2d 60.) II. Assuming arguendo that this Court concludes that “permanent total disability” is to be determined solely in reference to plaintiffs ability to engage in employment, a new trial on the issue of whether plaintiff sustained a “permanent total disability” under that employability standard must be ordered.

      Connors & Vilardo, LLP, Buffalo (John T. Loss and Terrence M. Connors of counsel), for respondent in the third above-entitled action.
    I. “Permanent total disability” must encompass an injury that results in the complete and permanent inability to be employed in any capacity whatsoever. Way v Grantling, 289 AD2d 790; Rubeis v Aqua Club, 305 AD2d 656; LargoChicaiza v Westchester Scaffold Equip. Corp., 5 AD3d 355; Castro v United Container Mach. Group, 96 NY2d 398; Matter of Schurick v Bayer Co., 272 NY 217.) II. Knauer Electric’s proposed definition is radical, unprecedented, and contrary to what the Legislature intended. Way v Grantling, 289 AD2d 790; Matter of Schurick v Bayer Co., 272 NY 217; Castro v United Container Mach. Group, 96 NY2d 389.)

      Gibson, McAskill & Crosby, LLP, Buffalo (Norman B. Viti, Jr., Victor Alan Oliveri and Timothy J. Graber of counsel), for third-party plaintiff-respondent in the third above-entitled action.
    The Appellate Division, Fourth Department, correctly held that the plain meaning of “permanent total disability” as used in section 11 of the Workers’ Compensation Law in reference to “an acquired injury to the brain” relates to a plaintiffs permanent total disability from employment and not to his or her ability to otherwise care for himself or herself and function in a modern society.
   OPINION OF THE COURT

Chief Judge Kaye.

An employer’s liability for an on-the-job injury is generally limited to workers’ compensation benefits, but when an employee suffers a “grave injury” the employer also may be Hable to third parties for indemnification or contribution. In the three actions before us, we are again asked to define the scope of an enumerated “grave injury” in Workers’ Compensation Law § 11—this time “an acquired injury to the brain caused by an external physical force resulting in permanent total disability.” We hold that a brain injury results in “permanent total disability” under section 11 when the evidence establishes that the injured worker is no longer employable in any capacity.

Rubeis v Aqua Club, Inc.

Aldo Rubeis, an ironworker, sustained a brain injury when he fell approximately 19 feet from a ladder while instalhng a steel cupola at the Aqua Club. At the time of the accident, Rubeis was employed by Venezia Iron Works, Inc. Rubeis commenced a personal injury action against Aqua Club, which then impleaded Venezia alleging a cause of action for common-law indemnification and contribution. Aqua Club claimed that plaintiff sustained a grave injury under Workers’ Compensation Law § 11 and thus plaintiffs employer was Hable.

At the close of the liability phase of trial, the court granted Aqua Club judgment on its claim against Venezia, subject to resolution of the question whether plaintiff sustained a grave injury, which it submitted to the jury. The court instructed the jury that

“[i]n order to prove a grave injury . . . the medical evidence must indicate that . . . plaintiff is unable to return to any employment. You may consider plaintiffs ability to obtain other employment and should also consider his abiHty to perform the usual and customary tasks of ordinary day-to-day living, such as whether he is physically independent and ambulatory, in determining whether or not plaintiff suffered a grave injury. . . .”

The jury found that the plaintiff sustained a grave injury and awarded him approximately $3.2 million in damages. The trial court denied Venezia’s motion to set aside the verdict, but the Appellate Division, Second Department, reversed and granted the motion. Relying on Second Department case law holding that brain injury does not result in permanent total disability where the employee is able to perform day-to-day functions, the Appellate Division concluded that plaintiff had not suffered a grave injury under Workers’ Compensation Law § 11.

Largo-Chicaiza v Westchester Scaffold Equipment Corp.

Jorge Largo-Chicaiza, a day-laborer, sustained a brain injury when he fell from the roof of a six-story house owned by Peter and Catherine McCaffrey while removing shingles. At the time of the accident, he was employed by the general contractor, Salvatore Sanzo. Largo-Chicaiza brought a personal injury action against the McCaffreys, Sanzo and the roofing subcontractors. In their answers, defendants each sought dismissal of the complaint and, in the alternative, cross-claimed for indemnification and contribution against Sanzo pursuant to Workers’ Compensation Law § 11.

Sanzo sought summary judgment against plaintiff and dismissal of all cross claims against him on the ground that he was plaintiffs employer, and plaintiffs sole recovery against him were therefore workers’ compensation benefits. The trial court granted Sanzo’s motion for summary judgment as against plaintiff, but denied his motion seeking to prohibit impleader actions against him and converted defendants’ cross claims into third-party actions against Sanzo. Citing Way v Grantling (289 AD2d 790, 792 [3d Dept 2001]) for the proposition that permanent total disability relates to the injured party’s employability, not ability to function in society, the trial court concluded that the evidence raised material questions of fact. The Appellate Division, Second Department, reversed and, citing Rubeis (305 AD2d 656 [2003]), concluded that plaintiffs injuries were not a grave injury under Workers’ Compensation Law § 11.

Knauer v Anderson

Thomas Knauer, an electrician employed by Knauer Electric, sustained a brain injury when he fell 17 feet from a ladder and crashed headfirst onto a gravel floor. Knauer commenced a personal injury action against the general contractor and the property owner. The defendants then brought a third-party action against plaintiffs employer for indemnification. The trial court denied the employer’s motion for summary judgment, finding a triable issue of fact regarding whether plaintiff sustained a grave injury.

After trial, the court charged the jury that permanent total disability means permanent total disability from employment and does not require that plaintiff lack all capacity to perform personal or household activities. The jury found in plaintiffs favor, awarding him $11 million, and the Appellate Division, Fourth Department, affirmed, relying on Way. The Court reasoned, “evidence that a plaintiff has suffered the specified injury to the brain resulting in permanent total disability relates to his or her permanent total disability from employment, not to his or her ability to otherwise care for himself or herself and function in a modern society” (2 AD3d 1314, 1315 [4th Dept 2003] [internal quotation marks omitted]).

We granted leave to address this split among Departments on the meaning of “permanent total disability” under Workers’ Compensation Law § 11.

Analysis

Workers’ Compensation Law § 11 provides:

“An employer shall not be liable for contribution or indemnity to any third person based upon liability for injuries sustained by an employee acting within the scope of his or her employment for such employer unless such third person proves through competent medical evidence that such employee has sustained a ‘grave injury’ which shall mean only one or more of the following: death, permanent and total loss of use or amputation of an arm, leg, hand or foot, loss of multiple fingers, loss of multiple toes, paraplegia or quadriplegia, total and permanent blindness, total and permanent deafness, loss of nose, loss of ear, permanent and severe facial disfigurement, loss of an index finger or an acquired injury to the brain caused by an external physical force resulting in permanent total disability.”

Section 11 was enacted in 1996 as part of a comprehensive reform intended to reduce costs for employers while also protecting the interests of injured workers (Omnibus Workers’ Compensation Reform Act of 1996, L 1996, ch 635; Governor’s Approval Mem, Bill Jacket, L 1996, ch 635, at 54, 1996 NY Legis Ann, at 459). Before that, New York State stood alone in freely allowing a defendant in a personal injury action brought by an employee injured on the job to seek indemnification or contribution from the employer. Central to the reform was immunity from tort liability for employers who provide workers’ compensation coverage by exposing employers to third-party liability “only in cases involving narrowly defined ‘grave’ injuries” (Governor’s Approval Mem, Bill Jacket at 55, 1996 NY Legis Ann, at 460). The injuries enumerated as grave were “deliberately both narrowly and completely described. The list is exhaustive, not illustrative: it is not intended to be extended absent further legislative action” (id.).

This legislative directive has consistently guided our determination as to whether a particular injury is a grave injury within the statute. In Castro v United Container Mach. Group, Inc. (96 NY2d 398 [2001]), for example, we held that the term “ loss of multiple fingers’ cannot sensibly be read to mean partial loss of multiple fingers” (id. at 401). The word finger in the statute means the whole finger, not just its tip. And in Meis v ELO Org., LLC (97 NY2d 714, 716 [2002]), we concluded that loss of a thumb is not “permanent and total loss of use” of a hand, and thus not a grave injury.

In Castro and Meis, the words of the statute alone answered the question before us. Partial loss of multiple fingers, and loss of a thumb, simply do not fit the clear literal terms of the statute. The statutory words “an acquired injury to the brain caused by an external physical force resulting in permanent total disability,” however, do not alone answer the question whether a particular injury is a grave injury. That phrase requires interpretation.

The definition of “permanent total disability” within section 11 has, moreover, divided the Appellate Divisions. The Third and Fourth Departments conclude that the permanent total disability envisioned by the section “relates to the injured party’s employability and not his or her ability to otherwise care for himself or herself and function in a modern society” (Way v Grantling, 289 AD2d 790, 792 [3d Dept 2001]; Knauer v Anderson, 2 AD3d 1314 [4th Dept 2003]). In Way, the Third Department found a material issue of fact as to permanent total disability when evidence suggested that the employee’s postconcussive syndrome permanently disabled him from competitive employment in even the most menial tasks, and where he had been awarded Social Security disability benefits. When defining “permanent total disability” the Second Department, by contrast, has focused on the injured party’s ability to engage in day-to-day functions (see Schuler v Kings Plaza Shopping Ctr. & Mar., Inc., 294 AD2d 556, 559 [2d Dept 2002] [no grave injury where injured plaintiff managed a limited social agenda and was able to, among other things, dress and feed himself and handle simple arithmetic]).

These appeals in fact place before us two possible definitions of permanent total disability: the Second Department’s standard essentially requiring a vegetative state, and the Third and Fourth Departments’ standard essentially requiring unemployability. In choosing between these alternatives, our guiding principle is, of course, to implement the intent of the Legislature—in this case to narrow tort exposure for employers while also protecting the interests of injured workers—by considering both the language used and objects to be accomplished. While both definitions are plausible, the second, in our view, better fits section 11 and better effectuates the legislative purposes.

First, we consider the choices within the context of section 11 itself. The Legislature in section 11 has itself defined a grave injury to include “loss of multiple fingers,” “loss of multiple toes,” “loss of nose,” “loss of ear,” “permanent and severe facial disfigurement” and “loss of an index finger.” None of those enumerated grave injuries has the effect of preventing an employee from performing daily life activities. Limitation of permanent total disability to a vegetative state thus is too harsh a test, out of step with the balance of the section.

Next, we consider the two alternatives within the larger context of the Workers’ Compensation Law, where the customary definition of “disability” relates to employment. The Workers’ Compensation Law deals with employment benefits, and the term “disability” generally refers to inability to work. Workers’ Compensation Law § 201 (9) (A) and Department of Labor Rules and Regulations (12 NYCRR) § 363.1, for example, relate disability to inability to perform duties of employment. And section 37 (1), which refers to occupational diseases, states, “ ‘[disability’ means the state of being disabled from earning full wages at the work at which the employee was last employed.” The Workers’ Compensation Law is about workers and their work.

Finally, we make clear that the test we adopt for permanent total disability under section 11 is one of unemployability in any capacity. “In any capacity” is in keeping with legislative intent and sets a more objectively ascertainable test than equivalent, or competitive, employment.

Accordingly, in Rubeis v Aqua Club, Inc., the order of the Appellate Division should be reversed, with costs, and the order of Supreme Court, Rockland County, reinstated; in Largo-Chicaiza v Westchester Scaffold Equipment Corp., the order of the Appellate Division should be reversed, with costs, and the third-party complaint reinstated; and in Knauer v Anderson, the judgment appealed from and order of the Appellate Division brought up for review should be affirmed, with costs.

Read, J. (dissenting).

As between the two plausible definitions for a “permanent total disability” with respect to an acquired brain injury under Workers’ Compensation Law § 11, the narrower one is, in my view, more faithful to legislative intent. Accordingly, I dissent, and would affirm the orders in Rubeis and Largo-Chicaiza and reverse the order in Knauer.

The 1996 amendment of Workers’ Compensation Law § 11, which created the “grave injury” exception for indemnification or contribution claims against an injured worker’s employer (L 1996, ch 635, § 2), was heavily negotiated. The particular compromises struck to develop the list of grave injuries are unknowable and, in some cases, the results seem downright peculiar. Why, for example, is the loss of an index finger a grave injury while the loss of a thumb is not? We clearly know, however, what the Legislature intended, which was to curtail third-party actions against the employer of an injured worker sharply and to do so, in large part, by designating grave injuries that were “deliberately both narrowly and completely described,” “exhaustive, not illustrative” and “not intended to be extended further absent legislative action” (Castro v United Container Mach. Group, Inc., 96 NY2d 398, 402 [2001], quoting Governor’s Approval Mem, Bill Jacket, L 1996, ch 635, at 55, 1996 NY Legis Ann, at 460).

Despite the Legislature’s best efforts to insulate the grave injuries in section 11 from judicial interpretation (and the perceived attendant risk of judicial expansion), the phrase “an acquired injury to the brain caused by an external physical force resulting in permanent total disability” is not self-explanatory. In adopting a standard for permanent total disability essentially requiring unemployability rather than the competing and narrower standard, the inability to perform the usual activities of daily living, the majority deploys tools of statutory interpretation that are tried-and-true, but unsuited to the particular task. Specifically, since many (but certainly not all) of the grave injuries listed in section 11 do not prevent an employee from performing daily life activities, the majority reasons that “[Limitation of permanent total disability to a vegetative state ... is too harsh a test, out of step with the balance of the section” (majority op at 417). This kind of text-based analysis ill-fits section 11 since the list of grave injuries is, as previously noted, the singular product of legislative compromise, and is exhaustive, not illustrative. It is difficult to reason by analogy to the other grave injuries on the list when these are as various as the loss of a finger and quadriplegia.

The majority further observes that the word “disability” generally refers to employment within the “larger context” of the Workers’ Compensation Law (majority op at 417). But these employment-related definitions of “disability” appear in provisions of the statute relating to payment of compensation (see e.g. Workers’ Compensation Law § 15 [1]; §§ 37, 201 [9]). These provisions bear no relationship to section ll’s very different and overriding goal—to safeguard employers from impleader except in rare circumstances.

When the Legislature adopted section 11, it intended to retrench an employer’s exposure to costly third-party actions, and thereby reduce the employer’s insurance premiums and out-of-pocket payments. The Legislature did this by barring third-party actions against employers except in the limited circumstances of a grave injury. As has been pointed out, the 1996 amendment of section 11 to carry out this goal “[was] at best indifferent to the employee, its aim being to protect the employer” (Under Workers’ Compensation Reform Act, Loss of Thumb is Held to Mean Loss of Use of Hand, Supporting Impleader of Employer, 109 Siegel’s Practice Review 1 [May 2001]). In light of this goal and the concomitant legislative intent for us to exercise our interpretive function particularly sparingly and narrowly with respect to grave injuries under section 11,1 would adopt the more restrictive of the two plausible, and equally workable, definitions for a “permanent total disability” developed by the Appellate Divisions; namely, that a “permanent total disability” with respect to an acquired brain injury means the inability to perform the usual activities of daily living, essentially requiring a vegetative state.

Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo and R.S. Smith concur with Chief Judge Kaye; Judge Read dissents and votes to affirm in a separate opinion.

In Rubeis v Aqua Club, Inc.: Order reversed, etc.

In Largo-Chicaiza v Westchester Scaffold Equipment Corp.: Order reversed, etc.

Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo and R.S. Smith concur with Chief Judge Kaye; Judge Read dissents and votes to reverse in a separate opinion.

In Knauer v Anderson: Judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs.

       “[P]ermanent total disability” is defined in section 15 (1)—which authorizes schedule compensation awards based on a worker’s wages at the time of the accident—to mean, “[l]oss of both hands, or both arms, or both feet, or both legs, or both eyes, or of any two thereof shall, in the absence of conclusive proof to the contrary, constitute permanent total disability.” The purpose there is, however, different from the section before us (see Castro, 96 NY2d 398, 401 n 2).

       In fact, the Legislature seems to have borrowed section ll’s definition of an acquired brain injury from Public Health Law § 2741, not from any other provision in the Workers’ Compensation Law. In relevant part, section 2741 defines “traumatic brain injury” to mean “an acquired injury to the brain caused by an external physical force resulting in total or partial disability or impairment” (emphasis added). The Legislature considerably limited this definition in section 11 by eliminating the words “partial” and “impairment” and adding the word “permanent” to describe, along with “total,” the profound extent of disability required to quality as a grave injury. Nothing in section 2741 or article 27-CC of the Public Health Law relates the word “disability” to the concept of employability.


author:
Graffeo, J.
      Read, J. (dissenting).

text:
    [821 NE2d 519, 788 NYS2d 281]
    Donna McGrath et al., Respondents, v Toys “R” Us, Inc., Appellant.
    Argued October 12, 2004;
    decided November 23, 2004

      POINTS OF COUNSEL

      Quirk and Bakalor, P.C., New York City (H. Nicholas Goodman and Charles M. Henderson, III, of counsel), for appellant.
    I. This Court should adopt the standards set forth in Farrar v Hobby (506 US 103 [1992]). (Hughes v Rowe, 449 US 5; Christianburg Garment Co. v Equal Empl. Opportunity Commn., 434 US 412; McIntyre v Manhattan Ford, Lincoln-Mercury, 176 Misc 2d 325; Umansky v Masterpiece Intl., 276 AD2d 692; Cruz v Coach Stores, Inc., 202 F3d 560; Farias v Instructional Sys., Inc., 259 F3d 91; Shannon v Fireman’s Fund Ins. Co., 156 F Supp 2d 279; Cabrera v Jakabovitz, 24 F3d 372; Pino v Locas

      cio, 101 F3d 235.) II. A new standard has no precedent in New York law. (Matter of Freeman, 34 NY2d 1; Matter of Karp, 145 AD2d 208; Matter of Potts, 213 App Div 59.) III. Adopting respondents’ position would encourage litigation of trivial cases. (Adams v Rivera, 13 F Supp 2d 550.) IV To the extent this Court recognizes a significant public purpose exception to the Farrar rule, this Court should narrowly limit the exception to cases which lead to ground-breaking conclusions of law. (Cabrera v Jakabovitz, 24 F3d 372; Cabrera v Fischler, 814 F Supp 269; LeBlanc-Sternberg v Fletcher, 143 F3d 748; Pino v Locascio, 101 F3d 235; Adams v Rivera, 13 F Supp 2d 550; Heymach v Cardiac Pacemakers, 183 Misc 2d 584; Marks v United States, 430 US 188; Campbell v St. Tammany Parish School Bd., 64 F3d 184.) V This case does not qualify for the significant public purpose exception. (McCardle v Haddad, 131 F3d 43; Baird v Boies, Schiller & Flexner LLP, 219 F Supp 2d 510; Texas State Teachers Assn. v Garland Ind. School Dist., 489 US 782; Buckhannon Bd. & Care Home, Inc. v West Virginia Dept. of Health & Human Resources, 532 US 598; Marbley v Bane, 57 F3d 224; Matter of Wittlinger v Wing, 289 AD2d 171; Matter of Auguste v Hammons, 285 AD2d 417; Fish v St. Cloud State Univ., 295 F3d 849; Hensley v Eckerhart, 461 US 424; Ciaprazi v County of Nassau, 195 F Supp 2d 398.)

      Shanahan & Associates, P.C., New York City {Thomas D. Shanahan of counsel), and Meltzer Lopresti, LLP (Anthony A. LoPresti of counsel), for respondents.
    I. This Court must not apply the Farrar v Hobby (506 US 103 [1992]) standard because the drafters of the Administrative Code of the City of New York explicitly stated that “judges interpreting the City’s Human Rights Law are not to be bound by restrictive state and federal rulings and are to take seriously the requirement that this law be liberally and independently construed.” (Matter of Wittlinger v Wing, 99 NY2d 425; Shannon v Fireman’s Fund Ins. Co., 156 F Supp 2d 279; McIntyre v Manhattan Ford, Lincoln-Mercury, 176 Misc 2d 325; Hensley v Eckerhart, 461 US 424.) II. Precedent established by both this Court and the Second Circuit preFarrar v Hobby (506 US 103 [1992]), if applied broadly, provides the proper standard to determine what constitutes a reasonable fee award for a prevailing party who has received only nominal damages. (Ruggiero v Krzeminski, 928 F2d 558; Ortiz v Regan, 980 F2d 138; Fassett By & Through Fassett v Haeckel, 936 F2d 118; Milwe v Cavuoto, 653 F2d 80; McCann v Coughlin, 698 F2d 112; Matter of Thomasel v Perales, 78 NY2d 561; Joseph v Ruffo, 64 NY2d 980; Matter of Johnson v Blum, 58 NY2d 454;
      Matter of Freeman, 34 NY2d 1; Matter of Karp, 145 AD2d 208.) III. Under Farrar v Hobby (506 US 103 [1992]) the Administrative Code of the City of New York still authorizes a fee award here because respondents’ case did serve a significant public purpose under both a restrictive and broad interpretation of “significant public purpose” as mandated by the drafters of the Administrative Code. (Carroll v Blinken, 105 F3d 79; Blanchard v Bergeron, 489 US 87; Quaratino v Tiffany & Co., 166 F3d 422; Cabrera v Jakabovitz, 24 F3d 372; Farias v Instructional Sys., Inc., 259 F3d 91; DeFilippo v Morizio, 759 F2d 231; Adams v Rivera, 13 F Supp 2d 550; LeBlanc-Sternberg v Fletcher, 143 F3d 748; Red Cloud-Owen v Albany Steel, Inc., 958 F Supp 94; Ciaprazi v County of Nassau, 195 F Supp 2d 398.) IV Respondents’ case served a significant public purpose where clear distinctions exist between prior cases; respondents’ case was the first public accommodation case to proceed to trial and secure a favorable jury verdict and the law was so unclear that the New York City Council had to enact a law to clarify the Administrative Code of the City of New York. (Maffei v Kolaeton Indus., 164 Misc 2d 547; Matter of Rivera, 165 Misc 2d 307; Davidson v Aetna Life & Cas. Ins. Co., 101 Misc 2d 1; Richards v United States Tennis Assn., 93 Misc 2d 713; Matter of Denise R. v Lavine, 39 NY2d 279.)

      Lansner & Kubitschek, New York City (Carolyn A. Kubitschek of counsel), Eugene B. Nathanson and Norman L. Reimer for New York County Lawyers’ Association, amicus curiae.
    I. The New York City Council’s intent to encourage private enforcement of the Human Rights Law would be frustrated by a stringent standard for awarding attorney’s fees. (Carney v Philippone, 1 NY3d 333; Chambers v TRM Copy Ctrs. Corp., 43 F3d 29; Newman v Piggie Park Enters., Inc., 390 US 400; Christianburg Garment Co. v Equal Empl. Opportunity Commn., 434 US 412; Northcross v Board of Educ. of Memphis City Schools, 412 US 427; Hughes v Rowe, 449 US 5; Farrar v Hobby, 506 US 103; Hensley v Eckerhart, 461 US 424; Ruggiero v Krzeminski, 928 F2d 558; Crue v Aiken, 370 F3d 668.) II. This Court should adopt the attorney fee standard formulated in Hensley v Eckerhart (461 US 424 [1983]). (City of Riverside v Rivera, All US 561; Texas State Teachers Assn. v Garland Ind. School Dist., 489 US 782.)

      Michael A. Cardozo, Corporation Counsel, New York City (Edward F.X. Hart and Tahirih M. Sadrieh of counsel), for City of New York, amicus curiae.
    I. This Court should adopt the Far

      rar v Hobby (506 US 103 [1992]) standard in evaluating a reasonable attorney’s fee under the New York City Human Rights Law. (Umansky v Masterpiece Intl., 276 AD2d 692; Ferrante v American Lung Assn., 90 NY2d 623; Farias v Instructional Sys., Inc., 259 F3d 91; Hensley v Eckerhart, 461 US 424; Matter of Johnson v Blum, 58 NY2d 454; Newman v Piggie Park Enters., Inc., 390 US 400; Northcross v Memphis Bd. of Educ. of Memphis City Schools, 412 US 427; Hooper Assoc. v AGS Computers, 74 NY2d 487; Baker v Health Mgt. Sys., 98 NY2d 80; Matter of New York State Clinical Lab. Assn. v Kaladjian, 85 NY2d 346.) II. New York should not adopt a public purpose exception to the Farrar v Hobby (506 US 103 [1992]) rule. (Cabrera v Jakabovitz, 24 F3d 372; Cabrera v Fischler, 814 F Supp 269; Pino v Locascio, 101 F3d 235; Maffei v Kolaeton Indus., 164 Misc 2d 547; Buckhannon Bd. & Care Home, Inc. v West Virginia Dept. of Health & Human Resources, 532 US 598; Texas State Teachers Assn. v Garland Ind. School Dist., 489 US 782; Hensley v Eckerhart, 461 US 424; Hewitt v Helms, 482 US 755.)

      Craig Gurian, Brooklyn, for Anti-Discrimination Center of Metro New York, Inc., and others, amici curiae.
    I. Adoption of the Farrar v Hobby (506 US 103 [1992]) standards would contradict New York City’s intention that its Human Rights Law be construed independently and liberally to achieve the law’s broad, remedial objectives. (Farias v Instructional Sys., Inc., 259 F3d 91; Matter of Cahill v Rosa, 89 NY2d 14; Ruggiero v Krzeminski, 928 F2d 558; Milwe v Cavuoto, 653 F2d 80; McCann v Coughlin, 698 F2d 112; Buckhannon Bd. & Care Home, Inc. v West Virginia Dept, of Health & Human Resources, 532 US 598; Matter of 119-121 E. 97th St. Corp. v New York City Commn. on Human Rights, 220 AD2d 79; Hughes v Rowe, 449 US 5; Christianburg Garment Co. v Equal Empl. Opportunity Commn., 434 US 412; Estate of Farrar v Cain, 941 F2d 1311.) II. Establishment of liability should in general be sufficient to justify the award of attorney’s fees. (New York State Club Assn. v City of New York, 69 NY2d 211; Levin v Yeshiva Univ., 96 NY2d 484.)
   OPINION OF THE COURT

Graffeo, J.

In Farrar v Hobby (506 US 103 [1992]), the United States Supreme Court concluded that a plaintiff in a federal civil rights action who obtains only nominal damages is a “prevailing party” eligible to apply for an attorney’s fee award but that an award in those circumstances would rarely be appropriate unless the litigation served a significant public purpose. Certifying four questions to this Court, the United States Court of Appeals for the Second Circuit has asked us to address whether the Farrar standard is applicable to attorney’s fees awarded under the New York City Human Rights Law. Because the attorney’s fee provision of the New York City Human Rights Law is textually indistinguishable from the federal statutes interpreted in Farrar and we find nothing in the legislative history that directs a different standard, we conclude that counsel fee awards under the City Human Rights Law are subject to the Farrar analysis.

I.

The three plaintiffs in this action, who identify themselves as preoperative transsexuals, commenced a federal action against defendant Toys “R” Us alleging that they were harassed by store employees while shopping in a Toys “R” Us store in December 2000. Plaintiffs contended that defendant’s employees violated the New York City Human Rights Law, a civil rights statute that prohibits discrimination in public accommodation. In the complaint, plaintiffs sought compensatory and actual damages in an amount not less than $100,000 for each plaintiff, punitive damages in an amount not less than $100,000 for each plaintiff, attorney’s fees and injunctive relief.

A nine-day jury trial ensued in June 2002. At trial, plaintiffs’ attorney requested substantial compensatory and punitive damages, but did not seek injunctive relief. The jury rendered a verdict in favor of plaintiffs, finding that the conduct of defendant’s employees violated plaintiffs’ rights under the New York City Human Rights Law, but awarded damages of only $1 for each plaintiff.

Following the trial, plaintiffs applied for attorney’s fees in the amount of approximately $206,000. Defendant opposed the request, arguing that a fee award was not warranted because plaintiffs had received only nominal damages. Noting that the attorney’s fee provision in the New York City Human Rights Law is similar to the fee provisions in the federal civil rights statutes, the court applied the rule articulated by the United States Supreme Court in Farrar v Hobby (506 US 103 [1992]). In Farrar, the Supreme Court held that it will rarely be appropriate to grant attorney’s fees in a case where plaintiff obtained only nominal damages unless the case served a significant public purpose. While recognizing that fee awards in nominal damages cases are not the norm, the District Court in this case concluded that “[t]his case is one of those unusual and infrequent instances in which attorneys fees should be awarded.” The court observed that this was the first public accommodation discrimination case to proceed to trial under the New York City Human Rights Law and the first case in which the rights of transsexuals were asserted and vindicated. In addition, at the time this action was commenced, it was unclear whether the New York City Human Rights Law covered transsexuals as the law was not amended to specifically include that class of individuals until just prior to trial. Ultimately, the District Court awarded attorney’s fees in the amount of $193,551, the “lodestar” figure calculated by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate.

Defendant appealed the attorney’s fee determination to the Second Circuit, which noted that there are virtually no New York cases interpreting or applying the fee provision in the New York City Human Rights Law. Accordingly, the Second Circuit certified the following questions to this Court:

“1. In determining whether an award of attorney’s fees is reasonable under New York City Administrative Code § 8-502(f), does New York apply the standards set forth in Farrar v. Hobby, 506 U.S. at 114-15, i.e., (a) that ‘the most critical factor ... is the degree of success,’ and (b) that when a party is awarded nominal damages, ‘the only reasonable fee is usually no fee at all’?
“2. If the Farrar standard does not apply, what standard should a court use to determine what constitutes a reasonable fee award for a prevailing party who has received only nominal damages?
“3. If the Farrar standard applies, does Administrative Code § 8-502(f) authorize a fee award to a prevailing plaintiff who receives only nominal damages but whose lawsuit served a significant public purpose?
“4. If New York recognizes ‘service of a significant public purpose’ as a factor warranting an attorney’s fee award to a plaintiff recovering only nominal damages, would a plaintiff who is the first to secure a favorable jury verdict on a claim of unlawful discrimination against transsexuals in public accommodation, see N.Y. City Admin. Code § 8-107.4(a), be entitled to a fee award even though the law’s prohibition of discrimination against transsexuals in employment, see id. § 8-107.1(a), has previously been recognized?” (McGrath v Toys “R” Us, Inc., 356 F3d 246, 254 [2d Cir 2004].)

We accepted the certified questions and now answer questions 1, 3 and 4 in the affirmative, rendering question 2 academic.

II.

Although the District Court employed the Farrar standard when it awarded attorney’s fees, plaintiffs now argue that this Court should decline to follow Farrar because the rule is unduly restrictive. Plaintiffs suggest that Farrar was a significant departure from prior federal fee award jurisprudence that will impede the ability of individuals who have suffered discrimination to retain counsel to prosecute a meritorious civil rights claim. In urging rejection of the federal approach, plaintiffs primarily rely on statements in the legislative history of the local law that suggest that the law is intended to be broadly construed to effectuate its remedial purposes.

In New York, civil rights are cherished and highly protected. Legislation at the state and local levels prohibits discrimination in many spheres, including housing, employment and public accommodation. The litigation in this case was brought under the public accommodation provision of the New York City Human Rights Law, which protects against discrimination based on “actual or perceived race, creed, color, national origin, age, gender, disability, marital status, sexual orientation or alienage or citizenship status” (Administrative Code of City of NY § 8-107 [4] [a]).

A private action under the New York City Human Rights Law has been authorized since 1991 when the City Council amended the Code to grant the right to sue to any individual in a protected class who is subjected to discriminatory treatment. The legislation also gave a private party who prevailed in the lawsuit the right to seek attorney’s fees. The fee provision states: “[i]n any civil action commenced pursuant to this section, the court, in its discretion, may award the prevailing party costs and reasonable attorney’s fees” (Administrative Code § 8-502 [f]).

The attorney’s fee provision is indistinguishable from provisions in comparable federal civil rights statutes. For example, title VII of the Civil Rights Act of 1964’s attorney’s fee statute authorizes a court, in its discretion, to “allow the prevailing party ... a reasonable attorney’s fee . . . as part of the costs” (42 USC § 2000e-5 [k]). Similarly, 42 USC § 1988 (b), applicable to a myriad of civil rights claims, provides that “the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.”

Where our state and local civil rights statutes are substantively and textually similar to their federal counterparts, our Court has generally interpreted them consistently with federal precedent (see Forrest v Jewish Guild for Blind, 3 NY3d 295, 305 n 3 [2004]; Rainer N. Mittl, Ophthalmologist, P.C. v New York State Div. of Human Rights, 100 NY2d 326 [2003]; Matter of Aurecchione v New York State Div. of Human Rights, 98 NY2d 21 [2002]; Ferrante v American Lung Assn., 90 NY2d 623, 629 [1997]). For instance, we have held that federal burden-shifting standards apply to claims brought under the state and local Human Rights Laws (see Forrest v Jewish Guild for Blind, 3 NY3d at 305 n 3; Mittl v New York State Div. of Human Rights, 100 NY2d at 330-331). Where state and local provisions overlap with federal statutes, our approach to resolution of civil rights claims has been consistent with the federal courts in recognition of the fact that, whether enacted by Congress, the State Legislature or a local body, these statutes serve the same remedial purpose—they are all designed to combat discrimination.

Under the comparable federal civil rights statutes authorizing fee awards, federal courts employ a two-step process for determining whether a discretionary attorney’s fee award is appropriate (see Hensley v Eckerhart, 461 US 424, 433 [1983]). First, in order to be eligible to apply for an award, plaintiff must be a “prevailing party” in the litigation. If this threshold requirement is met, the court must then determine what constitutes a reasonable award, a discretionary inquiry that takes into account a multitude of factors, although “the most critical factor is the degree of success obtained” (id. at 436). The determination is relatively straightforward when a plaintiff obtains what amounts to complete relief—plaintiff is usually entitled to an award that compensates counsel for the time reasonably expended in the lawsuit (id. at 435). Commonly referred to as the “lodestar” method, the amount of the award is calculated by multiplying the number of hours reasonably expended by a reasonable hourly rate, a procedure that subsumes many of the factors (id. at 434 n 9).

Since its 1983 decision in Hensley v Eckerhart, the Supreme Court has made clear that where a plaintiff obtains only partial success, the procedure for assessing a reasonable counsel fee award is more complex. The inquiry is not answered merely by applying the lodestar formula because, if plaintiff “has achieved only partial or limited success,” an award based solely on the lodestar figure may be excessive (id. at 436). Emphasizing that calculation of an appropriate fee award is a discretionary procedure best left in the hands of trial courts who have a “superior understanding of the litigation,” the Court noted that the trial court “should make clear that it has considered the relationship between the amount of the fee awarded and the results obtained” (id. at 437). If plaintiff has attained only partial success, the award may be adjusted accordingly.

In its 1992 decision in Farrar v Hobby, the Supreme Court addressed a particular type of partial success case—the circumstance where a plaintiff obtains a favorable civil rights judgment on the merits but the only relief granted is nominal damages. The issue was whether a plaintiff who received only nominal damages was a “prevailing party” eligible to seek attorney’s fees. The District Court in Farrar had awarded plaintiffs attorney’s fees in the amount of $280,000, but the Fifth Circuit vacated the award, concluding plaintiffs were not prevailing parties and, as such, were ineligible for an attorney’s fee award.

All nine members of the Supreme Court concluded that plaintiffs were prevailing parties under the federal statutes, clarifying that “the prevailing party inquiry does not turn on the magnitude of the relief obtained” (Farrar v Hobby, 506 US at 114). The Court explained that “a plaintiff ‘prevails’ when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant’s behavior in a way that directly benefits the plaintiff’ (id. at 111-112). Because a damages judgment, whatever the amount, forces defendant to pay a sum to plaintiff that defendant would not otherwise be required to pay, it modifies defendant’s behavior in a manner beneficial to plaintiff, making plaintiff a prevailing party.

The Court split, however, on whether it should review the propriety of the amount of the award. Four Justices saw “no reason for the Court to reach out and decide what amount of attorney’s fees constitutes a reasonable amount in this instance” because “[t]hat issue was neither presented in the petition for certiorari nor briefed by petitioners” (id. at 123 [partial dissent]). In contrast, the majority reasoned that “ [although the ‘technical’ nature of a nominal damages award or any other judgment does not affect the prevailing party inquiry, it does bear on the propriety of fees awarded” (id. at 114). In other words, the Court held that the fact that plaintiff obtained only nominal damages went to the second part of the attorney’s fee inquiry—the reasonableness of the award.

The Court emphasized its previous holding in Hensley that “the most critical factor in determining the reasonableness of a fee award is the degree of success obtained,” thereby reasserting that where a plaintiff achieves only limited success, an award determined solely by calculating the lodestar may be excessive (id. [internal quotation marks omitted]). Applying that principle, the Court concluded that “[w]hen a plaintiff recovers only nominal damages because of his failure to prove an essential element of his claim for monetary relief . . . the only reasonable fee is usually no fee at all” (id. at 115 [internal citation omitted]). Comparing the amount of damages sought by the plaintiff ($17 million) with the amount recovered ($1), the Court found that the plaintiff in Farrar had obtained only a de minimis victory rendering any fee award in that case unreasonable as a matter of law.

Justice O’Connor concurred, but wrote separately to clarify that the difference between the amount of damages recovered and the amount sought is not the only factor to be considered in determining the degree of a plaintiff’s success in a nominal damages case. In appropriate cases, the court can consider the significance of the legal issue on which plaintiff prevailed and whether the litigation “accomplished some public goal other than occupying the time and energy of counsel, court, and client” {id. at 121-122 [concurring op]). This analysis has been referred to as the “significant public purpose” exception to the Farrar rule.

Federal courts have interpreted Farrar as holding that “while there is no per se rule that a plaintiff recovering nominal damages can never get a fee award . . . the award of fees in such a case will be rare” (Pino v Locascio, 101 F3d 235, 238 [2d Cir 1996]) and is appropriate only when plaintiffs success can be viewed as significant despite the failure to obtain more meaningful relief. For example, in Cabrera v Jakabovitz (24 F3d 372, 393 [2d Cir 1994], cert denied 513 US 876 [1994]), the Second Circuit held that a defendant who was ordered to pay only nominal damages could nonetheless be subject to pay an attorney’s fee award because “plaintiffs prevailed on a significant legal issue—namely, that landlords can be held liable for employing real estate brokers who are engaged in racial steering.” Quoting Justice O’Connor’s concurrence, the court noted that “[o]ne does not search ‘in vain for the public purpose’ this litigation has served” (id.). But in a hostile work environment sexual harassment claim where plaintiff received only nominal damages and no new rule of law was recognized or applied, the Second Circuit relied on the Farrar standard to vacate an attorney’s fee award (see Pino v Locascio, 101 F3d at 239). In Pino, the court found that “[t]he vast majority of civil rights litigation does not result in ground-breaking conclusions of law, and therefore, will only be appropriate candidates for fee awards if a plaintiff recovers some significant measure of damages or other meaningful relief’ (id.).

Primarily relying on the legislative history of the 1991 amendment to the New York City Human Rights Law, plaintiffs in this case argue that the Farrar standard should not be applied to attorney’s fee claims under the local law notwithstanding the fact that the language in the fee provision is substantively indistinguishable from the federal attorney’s fee statutes. We are unpersuaded. There are many general statements in the legislative history indicating that the private right of action provision, adopted to keep the City at the forefront of human rights protection, should be liberally construed (see e.g. Report of Legal Div, Comm on Gen Welfare, at 12-13, Local Law Bill Jacket, Local Law No. 39 [1991] of City of New York). As we recently observed when interpreting the punitive damages provision of the New York City Human Rights Law, added in the same 1991 legislation, “[t]hese statements merely reflect the broad policy behind the local law to discourage discrimination” (Krohn v New York City Police Dept. 2 NY3d 329, 337 [2004]). But, in this instance, such broad expressions of overriding policy offer no basis to overlook the textual similarities between the local law fee provision and the federal statutes or to abandon our general practice of interpreting comparable civil rights statutes consistently, particularly since these broad policies are identical to those underlying the federal statutes.

There is sparse reference to the attorney’s fee provision— Administrative Code § 8-502 (f)—in the legislative history, much less an indication that it is to be interpreted differently from its federal counterparts. In the Report of the Legal Division prepared for the City Council, a distinction is drawn between the city law as amended and the State Human Rights Law (see Executive Law § 296) since the latter does not authorize attorney’s fee awards (Report of Legal Div, Comm on Gen Welfare, Section-by-Section Analysis, at 34-35, Local Law Bill Jacket, Local Law No. 39 [1991]). But no distinct standard for determining fee awards is described, nor is there any criticism of the federal approach to such awards. Certainly, there is no reference to the narrow issue we address today—how attorney’s fees are to be determined in nominal damages cases.

Granted, it is not surprising that the legislative history does not address the Farrar rule since the amendments predated Farrar by one year. But if Farrar constituted a departure from the attorney fee standard the City Council intended to adopt as plaintiffs suggest, we cannot discern it. The City Council has not hesitated in other circumstances to amend the New York City Human Rights Law to clarify its disagreement with evolving Supreme Court precedent. At the same time it added the private right of action provision in 1991, the City Council amended other parts of the Human Rights Law to expressly reject the Supreme Court’s then-recent disparate impact analysis in Wards Cove Packing Co., Inc. v Atonio (490 US 642 [1989]) and to adopt for purposes of the New York City Human Rights Law the approach taken in the Supreme Court’s prior decision in Griggs v Duke Power Co. (401 US 424 [1971]; see Administrative Code § 8-107 [17]; Report of Legal Div, Comm on Gen Welfare, Section-by-Section Analysis, at 22-23, Local Law Bill Jacket, Local Law No. 39 [1991]). Despite its evident willingness to amend the Human Rights Law to establish legal guidelines different from those of the Supreme Court, here the City Council has not acted to alter the attorney’s fee provision in the 12 years since Farrar. And, perhaps most significantly, long before Farrar, the Supreme Court had emphasized in Hensley that the degree of success obtained was the critical factor in determining a reasonable award in a case where plaintiff obtained only limited success. If the City Council disagreed with that approach, it had ample opportunity to say so.

Instead, the City Counsel adopted a fee provision that appears to have been modeled after the federal statutes interpreted in Farrar. Because the provision is substantively and textually indistinguishable from its federal counterparts, and absent any basis in the legislative history for a different standard, we conclude that the Farrar standard is applicable to attorney’s fee claims under the New York City Human Rights Law.

III.

The Second Circuit has not asked us to apply the Farrar standard to the facts and circumstances of this case, or to review whether it was appropriate for the District Court to grant attorney’s fees in the full lodestar figure given the extent of relief plaintiffs obtained. These tasks it has reserved to itself. As we understand question 4, we are to determine whether this claim could have fallen within the “significant public purpose” exception addressed in the Farrar concurrence even though, prior to this litigation, some courts had held that transsexuals were protected from employment discrimination under the New York City Human Rights Law. We answer the fourth question in the affirmative because we cannot say, as a matter of law, that a court that reached that conclusion would have abused its discretion.

New York City Administrative Code § 8-107 (4) (a) prohibits discrimination in public accommodation on the following grounds: “actual or perceived race, creed, color, national origin, age, gender, disability, marital status, sexual orientation or alien-age or citizenship status.” Administrative Code § 8-107 (1)— which covers discrimination in employment—protects the same classes of individuals. At the time this litigation was commenced, the term gender was not defined in the Administrative Code and the term “sexual orientation” was defined as “heterosexuality, homosexuality, or bisexuality” (Administrative Code § 8-102 [20]). Thus, the former provision did not explicitly encompass discrimination based on transsexualism.

There were lower court decisions concluding that employment discrimination based on transsexualism fell under the anti-discrimination umbrella of the Code. For example, in Maffei v Kolaeton Indus. (164 Misc 2d 547 [Sup Ct, NY County 1995]), the trial court ruled that a person who identified herself as a transsexual had stated a claim under the New York City Human Rights Law’s prohibition of gender discrimination in employment, despite the failure of the Code to expressly cover transsexuals. The New York City Commission on Human Rights had reached the same conclusion in administrative decisions (see e.g. Matter of Arroyo v New York City Health & Hosp. Corp., 1994 WL 932424 [NY City Commn on Human Rights 1994]).

About two months before this case went to trial, the City Council passed legislation that added a new definition of “gender” to the New York City Human Rights Law, erasing any doubt about whether transsexuals were protected under the Code (see Administrative Code § 8-102 [23]; Local Law No. 3 [2002] of City of New York). The legislative history of the local law indicates that the City Council believed that the scope of the existing gender-based discrimination provision required clarification (see Local Law 3, § 1 [“Legislative findings and intent”]). In other words, the City Council determined that, in its view, the Code already protected transsexuals but was concerned that, without the amendment, the law could be misinterpreted as excluding this class of individuals from coverage.

In the District Court and again in this Court, defendant has emphasized that at the time this action was commenced, there were lower court decisions interpreting the Code as protecting transsexuals from discrimination in employment. As such, defendant argues that this litigation was not significant. We do not believe that the latter necessarily follows from the former. As was apparent to the City Council, the fact that a handful of lower courts had interpreted the statute broadly did not put to rest the scope of coverage issue.

In this case, the District Court reasoned that the verdict was significant and performed a public purpose because it involved a series of “firsts”—e.g., it was the first public accommodation case that went to verdict under the New York City Human Rights Law, and was the first judgment in favor of transsexuals. We cannot conclude that a judgment in favor of a historically unrecognized group can never serve an important public purpose; a groundbreaking verdict can educate the public concerning substantive rights and increase awareness as to the plight of a disadvantaged class. Particularly in the civil rights arena, a jury verdict can communicate community condemnation of unlawful discrimination. It is therefore reasonable for a court to consider whether the verdict served this function in determining the significance of the relief obtained, although this is neither the only factor that may be considered nor will it necessarily be determinative.

Given the uncertain state of the law at the time this action was commenced and the fact that the breadth of the Code was not clarified until shortly before trial, many city residents might have been unaware at the time of verdict that discrimination against transsexuals was prohibited. We are therefore unpersuaded that the fact that a few lower courts had interpreted the Code as covering transsexuals rendered plaintiffs’ verdict—the first of its kind—insignificant as a matter of law. In light of the procedural posture of this case, the fact-dependent nature of the “significant public purpose” inquiry and the limits of certified question 4, we have no occasion to further address the District Court determination in this regard.

Accordingly, certified questions 1, 3 and 4 should be answered in the affirmative and certified question 2 not answered upon the ground that it has been rendered academic.

Read, J. (dissenting).

I dissent with respect to certified question 4 only, which I would answer in the negative.

In Cabrera v Jakabovitz (24 F3d 372 [2d Cir 1994])—the Second Circuit’s seminal case applying the “significant public purpose” exception of Farrar v Hobby (506 US 103 [1992])—the court approved attorney’s fees based on its conclusion that the plaintiffs had “prevailed on a significant legal issue—namely, that landlords can be held liable for employing real estate brokers who are engaged in racial steering” (24 F3d at 393). In Cabrera, the plaintiffs, by creating a new rule making landlords vicariously liable for the discriminatory actions of the real estate brokers that they employ, prevailed on a novel issue of law that served a significant public purpose. As the Second Circuit later stressed in Pino v Locascio (101 F3d 235, 239 [2d Cir 1996]), however, the holding in Cabrera was “limited.” “The vast majority of civil rights litigation does not result in ground-breaking conclusions of law, and therefore, will only be appropriate candidates for fee awards if a plaintiff recovers some significant measure of damages or other meaningful relief” (id.).

The plaintiffs here recovered only nominal damages and sought no injunctive relief. Under Farrar and the relevant Second Circuit precedent, Cabrera and Pino, adopted by us today, the question then becomes whether these plaintiffs achieved a “ground-breaking conclusion[ ] of law.”

“[W]hen courts speak of issues of first impression, they speak only of these relatively few cases, which require consideration of adjustments of substantive rules of law” (Tancredi v Metropolitan Life Ins. Co., 256 F Supp 2d 196, 201 [SD NY 2003], revd on other grounds 378 F3d 220 [2d Cir 2004]). This is primarily because,

“[a]t too high a level of generality, there are no cases of first impression, while at too low a level, every case is one of first impression. . . . [Although every motor vehicle accident case is one of ‘first impression,’ there are very few indeed in which the factual context from which they are born requires courts to give serious consideration to altering or adjusting legal rules in order to resolve them. So too in all areas of the law” (id.).

While in some instances the first jury verdict pursuant to a particular statutory provision may qualify as a case of first impression, this cannot be so where, as here, the purportedly groundbreaking legal principle—the recognition of transsexuals as members of a protected class safeguarded against discrimination by the New York City Human Rights Law—had already been supported by the only courts to have considered the question (see Maffei v Kolaeton Indus., 164 Misc 2d 547 [Sup Ct, NY County 1995]; Rentos v Oce-Office Sys., 1996 WL 737215, 1996 US Dist LEXIS 19060 [SD NY, Dec. 24, 1996]). As the majority points out, the New York City Commission on Human Rights, the administrative agency responsible for interpreting and enforcing the New York City Human Rights Law, had endorsed the same reading of the Human Rights Law in its administrative decisions.

In Maffei, which preceded plaintiffs’ action by over six years, Supreme Court expressly rejected the argument of a transsexual plaintiffs employer that the New York City Human Rights Law did not recognize transsexuals as a protected class. In refusing to adopt the employer’s narrow interpretation of the statutory phrase “discrimination based on sex,” the court explained that the “New York City law is intended to bar all forms of discrimination in the workplace and to be broadly applied” (164 Misce 2d at 555 [emphasis added]). In Rentos, the United States District Court for the Southern District of New York embraced Maffei’& interpretation, holding that the transsexual plaintiff’s complaint, alleging employment discrimination based on “sex,” “clearly allege[d] membership in what at least one court has found to be a protected class under city and state law” (1996 WL 737215, *9, 1996 US Dist LEXIS 19060, *26). The present litigation cannot be viewed as groundbreaking when the pioneering legal precedent had already been this firmly established.

Although believing that the New York City Human Rights Law already protected transsexuals against discrimination, the New York City Council adopted an amendment in 2002 to guard against any misinterpretation. The majority views the Council’s action in this regard as further evidence of the uncertain state of the law when plaintiffs commenced this litigation. Once the amendment was enacted on April 30, 2002, however, plaintiffs’ trial, which did not begin until about two months later, was rendered even more obviously irrelevant to establishing the protection of transsexuals under the New York City Human Rights Law.

In fact, the law was so certain that defendant Toys “R” Us never challenged plaintiffs’ assertion that, as pre-operative transsexuals, they were members of a protected class under Administrative Code § 8-107 (4). To the contrary, defendant acknowledged from the outset of this litigation that section 8-107 (4) of the Code, proscribing discrimination in places of public accommodation, applied to transsexuals and to plaintiffs as pre-operative transsexuals. Settlement talks collapsed on the eve of trial when plaintiffs demanded $600,000 (just reduced from $3.2 million plus attorney’s fees), and defendant signaled a willingness to enter into productive negotiations only if plaintiffs lowered their demand to $60,000 (increased from a longstanding offer of $10,000). At trial, the parties litigated only factual issues related to whether and to what extent defendant’s actions discriminated against plaintiffs. In short, defendant never contested the supposedly novel issue of law on which plaintiffs prevailed and premise their request for attorney’s fees.

An attorney’s fee provision in an anti-discrimination statute “is not a relief Act for lawyers” (Farrar, supra, 506 US at 122 [O’Connor, J., concurring] [citation and internal quotation marks omitted]). Rather, there is a strong “public interest in preventing dubious or trivial claims from flooding the . . . courts” (Adams v Rivera, 13 F Supp 2d 550, 553 [SD NY 1998]). If the fee provision in Administrative Code § 8-502 (f) encourages a gold rush of attorneys promoting doubtful or inconsequential claims, it will be of little value to either legitimate civil rights plaintiffs or the general public. Nor does the judicial system as a whole benefit from “a second [round of] litigation of significant dimension” over the propriety of attorney’s fees (Texas State Teachers Assn. v Garland Ind. School Dist., 489 US 782, 791 [1989]).

An attorney’s fee provision in a civil rights statute is a tool that, used sparingly, “ensures the vindication of important rights, even when large sums of money are not at stake, by making attorney’s fees available under a private attorney general theory” (Farrar, 506 US at 122 [O’Connor, J., concurring]). Here, plaintiffs failed to accomplish any important public goal as private attorneys general by litigating a civil rights issue that had already been resolved in favor of transsexuals by the courts.

Chief Judge Kaye and Judges G.B. Smith, Ciparick and Rosenblatt concur with Judge Graffeo; Judge Read dissents in part and votes to answer certified question 4 in the negative in a separate opinion in which Judge R.S. Smith concurs.

Following certification of questions by the United States Court of Appeals for the Second Circuit and acceptance of the questions by this Court pursuant to section 500.17 of the Rules of Practice of the Court of Appeals (22 NYCRR 500.17), and after hearing argument by counsel for the parties and consideration of the briefs and the record submitted, certified questions 1, 3 and 4 answered in the affirmative and certified question 2 not answered upon the ground that it has been rendered academic.

      . The factors are: “(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the ‘undesirability’ of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases” (Hensley v Eckerhart, 461 US at 430 n 3). New York courts have employed these factors to determine reasonable attorney’s fee awards in New York City Human Rights Law claims (see McIntyre v Manhattan Ford, Lincoln-Mercury, Inc., 176 Misc 2d 325 [Sup Ct, NY County 1997], appeal dismissed 256 AD2d 269 [1st Dept 1998], appeal dismissed 93 NY2d 919 [1999], lv denied 94 NY2d 753 [1999] [where plaintiff received a judgment of more than $3 million, trial court awarded $268,156 in attorney’s fees]; Bell v Helmsley, 2003 NY Slip Op 50866[U] [Sup Ct, NY County 2003] [where plaintiff obtained verdict in the amount of $11 million, later reduced to $554,000, court awarded $568,340 in attorney’s fees]).

      . Consistent with this distinction between the local law and its state and federal counterparts, this Court applied the Griggs disparate impact analysis in Levin v Yeshiva Univ. (96 NY2d 484 [2001]) when determining whether plaintiffs had stated a claim for sexual orientation discrimination under the New York City Human Rights Law.

      . Notably, other aspects of the law have been amended during that time frame. As addressed in part III of this decision, the City Council amended the local law in 2002 by adding a new definition of “gender” to avoid what it viewed as an unduly narrow interpretation of that term by the courts.

      . The law now provides: “The term ‘gender’ shall include actual or perceived sex and shall also include a person’s gender identity, self-image, appearance, behavior or expression, whether or not that gender identity, self-image, appearance, behavior or expression is different from that traditionally associated with the legal sex assigned to that person at birth” (Administrative Code § 8-102 [23]).

      . The factors addressed in the dissent may be relevant to the federal court that will be evaluating the propriety of the fee award in this case. However, we are not asked in certified question 4 to determine whether this particular fee was warranted under the facts and circumstances of this case.