The Appellate Division has awarded damages and attorney’s fees to a former Café Gitane waitress, reviving her gender-discrimination lawsuit and ruling that the trial court should not have dismissed the case after she secured a default judgment and proceeded to a damages inquest.
The lawsuit, Levine v. Pee Wee & Tyson, Ltd., was filed in 2019 by Raye Levine, who worked as a waitress at Café Gitane and alleged that she was subjected to gender discrimination and retaliation in violation of the New York City Human Rights Law.
The restaurant’s corporate entity, Pee Wee & Tyson, Ltd., failed to appear in the case. As a result, the court entered a default judgment in Levine’s favor. Under the city’s Human Rights Law, a default means the defendant is deemed to have admitted the factual allegations concerning liability. What remains for the court to decide in that situation is the amount of money, if any, the plaintiff is entitled to recover.
After Levine obtained the default judgment, the case proceeded to a damages inquest. At an inquest, the plaintiff bears the burden of presenting evidence that allows the court to calculate compensation for losses such as lost wages, emotional distress or other damages permitted under the statute. The trial court later dismissed the complaint, concluding that Levine had not sufficiently proved her damages.
On appeal, a panel of the Appellate Division, including Presiding Justice Mark Dillon and Justices Francesca Connolly, Carl Landicino and James McCormack, reviewed that determination and examined whether the evidence Levine presented was enough to support an award under the law.
At the hearing, Levine testified as the sole witness and described the emotional distress she experienced and the economic losses she claimed. She sought $100,000 in lost wages, $150,000 for mental anguish and $250,000 in punitive damages. Justice Sharon Bourne-Clarke ruled that her testimony did not provide enough detail to establish any recoverable damages and dismissed the case.
On appeal, the Second Department took a different view. Writing in a unanimous opinion, the panel explained that while a defaulting defendant does not admit the amount of damages, it does admit liability. That meant the inquest should have been limited to determining what Levine could recover under the law.
The court agreed with the trial judge that Levine had not supplied enough information to support her lost-wage claim, noting that her testimony about hours worked and the timeframe at issue was too vague to permit a calculation. The panel also agreed that she had not established grounds for punitive damages, which require proof that an employer engaged in discrimination with willful or wanton negligence, recklessness or a conscious disregard of the rights of others.
But the panel reached the opposite conclusion on emotional-distress damages. Under the law, a plaintiff may recover compensatory damages for mental anguish based on their own testimony alone. The court said Levine’s statements that she was “really upset,” felt “helpless,” and experienced anxiety were enough to support what courts commonly refer to as a “garden-variety” emotional-distress award. In similar cases, awards are modest in size and do not require medical evidence.
The appellate court fixed that amount at $7,500. The court also held that Levine was entitled to attorney’s fees. While she had requested more than $25,000, the panel said the record did not establish that such a sum was reasonable given the issues involved and the limited proof presented. Instead, the court set her fee award at $7,500, plus $726.55 in costs.
The panel reversed the order dismissing the complaint and sent the case back to Kings County Supreme Court for entry of judgment in Levine’s favor in the total amount of $15,726.55.