Nelson v. County of Suffolk

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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TERENCE A. NELSON,

MEMORANDUM & ORDER

Plaintiff, 12-CV-5678 (DRH)(AKT)

-against-

COUNTY OF SUFFOLK, DETECTIVE

WILLIAM HUDSON and DETECTIVE

RALPH RIVERA ,

Defendants.

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APPEARANCES:

For Plaintiff:

Jacobs & Hazan, LLP

30 Vesey Street, 4th Floor

New York, New York 10007

By: David M. Hazan, Esq.

For Defendants:

Dennis M. Brown

Suffolk County Attorney

H. Lee Dennison Building

100 Veterans Memorial Highway

P.O. Box. 6100

Hauppauge, New York 11788

By: Arlene S. Zwilling, Esq.

HURLEY, Senior District Judge:

At the conclusion of the trial of this matter, the jury returned a verdict in

favor of the plaintiff Terence Nelson (“Plaintiff” or “Nelson”) and against defendants

Detective William Hudson (“Hudson”) and Detective Ralph Rivera (“Rivera”)

(together “Defendants”) on each of the claims presented, viz. federal civil rights

claims for false arrest, malicious prosecution and denial of a fair trial/due process

and state law claims for false arrest and malicious prosecution. The jury awarded

Plaintiff total compensatory damages of $7,000.00 and $20,000.00 in punitive

damages against Hudson and $30,000.00 in punitive damages against Rivera.

Presently before the Court is Defendants’ post-trial motion seeking judgment as a

matter of law or a new trial, pursuant to Federal Rules of Civil Procedure 50(b) and

59. For the reasons set forth below, the motion is granted in part and denied in

part.

BACKGROUND

This case arises out of the detention and arrest of Plaintiff on November 17,

2011, and his arraignment the following day, after the Ultra Diamonds store at the

Deer Park Tanger Outlet Mall reported to the Suffolk County Police Department

that a 1 carat diamond bracelet which had been placed on a showcase by store

employee Kassandra Messina (“Messina”) was missing. That bracelet was found the

next day, prior to plaintiff’s arraignment, but the charges against him, grand

larceny in the fourth degree, were not dismissed until his second appearance in

court on November 23, 2011.

I. The Trial Testimony

On November 17, 2011, at approximately 10:50 a.m., Plaintiff, a frequent

customer, arrived at the Ultra Diamonds store to have a diamond ring repaired that

he had purchased there for his wife. While he was waiting for the repair order to be

written up, he walked around the store looking at the displayed merchandise. At

that time store employee Messina was straightening out one of the display cases,

taking items out of the case, putting them on a roll cart and then replacing them in

the case. During that process she began speaking to herself loudly asking where is

it and saying she misplaced something. After completing his business, Nelson left

the store. Messina then reported to her supervisor that a diamond bracelet was

missing; the police were thereafter notified. (Tr. 260, 277-79.)

Officer Lankewicz was the first police officer on the scene. The case was

assigned to Hudson and Rivera, detectives with the Third Precinct, to investigate

and Rivera went to the Ultra Diamonds store.

While at the store, Rivera took a statement from Messina in which she

stated:

Today . . . I was working at my store arranging some

merchandise when a customer, Terrance Nelson, came in to drop off a

repair. Terrence took the repair to Doreen. At this point I was moving

jewelry from one display case to another. Terrence, who is a black

male, came in with another black male who was on the phone hanging

out by the registers. Terrence, while waiting for his repair, walked

around the store a couple of times. Sometime around 11:04 a.m. I had

placed a Modern Legacy 1ctw diamond bangle bracelet, SKU #

10056650, valued at $1,169.00 on top of the display case. I turned away

from the display case to get a merchandise placard for it which was on

a nearby rolling storage cart. I had turned away for a few seconds and

when I turned back to the display case I noticed the bracelet was

missing and Terrence Nelson was walking away from the counter.

When I didn’t see the piece I said “Where did the piece go, it didn’t just

walk off.” “It’s a big piece, it can’t just disappear.” Terrence said, “Is

there something you want to say,” “Is there something you want us to

help you find.” Terrence became verbally hostile because he thought I

was leveling accusations at him. I went to the break room where we

have our video to see if I could rewind it but I couldn’t. Terrence was

still in the store arguing with Doreen. I came back into the store and

noticed that Terrence’s pockets looked kind of funky. I didn’t want the

situation to get out of hand so I tried to calm Terrence down. I

ultimately asked him to leave and he did. Terrence left the item that

he wanted repaired here at the store. I called the police and filed a

report for the theft of the bangle bracelet.

. . . .

(Pl.’s Ex. 2.) According to Messina, prior to Nelson leaving the store she was not

“concerned about the possibility that he had taken the bracelet.” (Tr. 260.) Rather

she came to believe that he had stolen the bracelet “[a]fter watching [the video]

three to six times or so with three, one police officer and two detectives,[1] saying

they believe he took something in the case.” “They believed he took an item from the

counter.” “Rivera said it appeared from the video Mr. Nelson did take something

from the case. We would be unsure of what it was.” (Tr. 262, 266.) Rivera admitted

that Messina never said she saw Nelson take the bracelet. (Tr. 201.) He also

admitted, while viewing the surveillance tape in court, that just prior to Nelson

passing by the counter where Messina was working, no jewelry was visible to either

Messina’s left or right. (Tr. 207-08.) Nor did he see Nelson put anything in his

pocket. (Tr. 214.)

Sometime shortly after leaving the store, Nelson was informed by his wife

that Detectives were at the store looking for him. Based on that conversation,

Nelson decided to go to the police station to find out why they were looking for him.

(Tr. 279-80, 285-86.) When he arrived at the precinct, Rivera was still at the store

and Nelson, after waiting a period of time, eventually spoke to Hudson. (Tr. 287-88.)

Hudson found it “odd” that Nelson had come down to the precinct as in his

experience individuals that he is investigating do not usually just show up to speak

1 A “tech detective” went to the store to copy the surveillance video. (Tr. 268.)

with him. (Tr. 110.) Nelson told Hudson that he did not steal anything. He insisted

Hudson view the video, to which Hudson replied that Plaintiff should not give him

ultimatums. Nelson was not free to leave the precinct because according to the

officers at the precinct they were waiting for Rivera to return to the precinct after

he completed his investigation at the jewelry store and that Rivera would decide

whether Plaintiff would be formerly arrested. (Tr. 53-58, 287-89.)

After Rivera returned from the precinct, he spoke with Nelson and told him

the video showed him taking the jewelry. (Tr. 216.) According to Nelson, Rivera

accused him of having been drinking. (Tr. 290.)2 Nelson was formerly arrested at

about 6:00 p.m. and processed based on Rivera’s description that Nelson could be

seen on the video stealing the bracelet and his statement that Messina accused

Nelson of stealing the bracelet from the store. (Tr. 61-66, 131-32, 289-94.) The

paperwork sent to the District Attorney’s office stated that Plaintiff was caught

during the commission of a crime and described the evidence as “video/audio.” (Pl.’s

Ex. 15; Tr. 76.) Nelson spent the night locked up at the Third Precinct’s holding

room, which Nelson described as a jail. (Tr. 91-95, 294.)

At about 9:30 the following morning, while on their way to the Ultra

Diamonds store, Hudson and Messina received a call from the precinct that Messina

called and advised them that the bracelet at issue had been found. (Tr. 144-45.)

They proceeded to the store and spoke to Messina. She was asked to give them a

2 According to Nelson’s wife, Hudson told her that his partner saw her husband taking jewelry. (Tr.

411.) She also testified that Hudson asked her if her husband was aggressive at home and if she was

scared or intimidated by him; he told her that the precinct “is a safe place.” (Tr. 416.)

statement but responded that she was the only employee in the store at the time

and asked if she could come down later when she got off work; Defendants agreed to

her request. (Tr. 146.) Messina went to the precinct about 4:30 p.m. and gave a

follow-up statement indicating that the subject bracelet was not missing but had

been placed in another permanent display area by another sales associate without

her knowledge. (Pl.’s Ex. 3, Tr. at 167.)

Meanwhile, Nelson was taken to District Court at about 9:00 a.m. on

November 18 but was the last person to be arraigned. The case was not dismissed;

Nelson was formally arraigned on felony larceny charges and told to return on

November 23. Between November 18 and November 23, no one called him to tell

that the bracelet had been found and/or that the charges were going to be

dismissed. On November 23, when he returned to court, the charges were

dismissed. (Tr. 299- 305.)

II. The Jury’s Verdict

Having heard three days of testimony, the jury returned a verdict in favor of

Plaintiff. Specifically, the jury found in favor of Plaintiff on his federal § 1983 and

state law claims for false arrest (1) against Hudson for the periods (a) beginning

from the time Rivera returned from the Ultra Diamonds store to when the officers

were informed that the missing bracelet had been found and (b) from that latter

point until Nelson’s arraignment and (2) against Rivera for the periods (a)

beginning from the time Nelson arrived at the precinct until Rivera returned to the

precinct from the Ultra Diamonds Store, (b) from Rivera’s arrival at the precinct

until the officers were informed the bracelet had been found, and (c) from that latter

point until Nelson’s arraignment. The jury also found in Plaintiff’s favor on his

federal and state law claims for malicious prosecution, as well as his claims for

denial of due process/fair trial and failure to intervene. Subsequent to their verdict,

the jury answered special interrogatories posed to them at Defendants’ request in

connection with their claim for qualified immunity. The jury responded yes to the

following two questions:

1. Have the defendants shown by a fair preponderance of the evidence that

Kassandra Messina dictated the written statement dated November 17, 2011

to Detective Rivera?

2. Have the defendants shown by a fair preponderance of the evidence that

Detective Rivera watched the security video on November 17, 2011?

The following questions were answered in the negative:

1. Have the defendants shown by a fair preponderance of the evidence that

Detective Rivera placed a call to the Suffolk County District Attorney's Office

on the morning of November 18, 2011 and advised them that the bracelet had

been found?

2. Have the defendants shown by a fair preponderance of the evidence that

the District Attorney's Office knew before the Plaintiff was arraigned that the

bracelet had been found?

II. Legal Standard

A. Rule 50

Rule 50 "imposes a heavy burden on a movant, who will be awarded

judgment as a matter of law only when 'a party has been fully heard on an issue

during a jury trial and the court finds that a reasonable jury would not have a

legally sufficient evidentiary basis to find for the party on that issue.' " Cash v.

County of Erie, 654 F.3d 324, 333 (2d Cir. 2011), cert. denied, 132 S. Ct. 1741 (2012)

(quoting Fed. R. Civ. P. 50(a)(1)); accord Bucalo v. Shelter Island Union Free Sch.

Dist., 691 F.3d 119, 127-28 (2d Cir. 2012). The "burden is particularly heavy where,

as here, the jury has deliberated in the case and actually returned its verdict in

favor of the non-movant." Cash, 654 F.3d at 333 (internal quotation marks

omitted); accord Cross v. N.Y. City Transit Auth., 417 F.3d 241, 248 (2d Cir. 2005).

"Under such circumstances, the district court may set aside the verdict only where

there is such a complete absence of evidence supporting the verdict that the jury's

findings could only have been the result of sheer surmise and conjecture, or there is

such an overwhelming amount of evidence in favor of the movant that reasonable

and fair minded [persons] could not arrive at a verdict against him." Id. (citations,

alterations, and internal quotation marks omitted); accord Stampf v. Long Island R.

Co., 761 F.3d 192, 197-98 (2d Cir. 2014); see also, e.g., Zellner v. Summerlin, 494

F.3d 344, 371 (2d Cir. 2007) (stating that a Rule 50 motion may be granted only if

the court concludes that "a reasonable juror would have been compelled to accept

the view of the moving party" (internal quotation marks omitted)).

In deciding a motion under Rule 50, the Court must disregard any evidence

that weighs against the jury's verdict unless the jury was required to believe it.

Zellner, 494 F.3d at 370 (“Incontrovertible evidence relied on by the moving party,

such as a relevant videotape whose accuracy is unchallenged, should be credited by

the court on such a motion if it so utterly discredits the opposing party's version

that no reasonable juror could fail to believe the version advanced by the moving

party.’) The question is whether, if credibility assessments are made against the

moving party and all reasonable inferences are drawn against the moving party, a

reasonable jury nevertheless would have no choice but to find in the movant's favor.

Zellner, 494 F.3d at 370-71 (citing Piesco v. Koch, 12 F.3d 332, 343 (2d Cir. 1993)).

In other words the court may only grant a Rule 50 motion in this posture if there is

" ‘such a complete absence of evidence supporting the verdict that the jury's finding

could only have been the result of sheer surmise or conjecture, or . . . [there is] such

an overwhelming amount of evidence in favor of the movant that reasonable and

fair minded men [and women] could not arrive at a verdict against him.' " Cross,

417 F.3d at 247 (quoting Song v. Ives Labs., Inc., 957 F.2d 1041, 1046 (2d Cir.

1992)). “Judgment as a matter of law on an issue as to which the movant bears the

burden of proof is rare." Broadnax v. City of New Haven, 415 F.3d 265, 270 (2d Cir.

2005) (internal quotation omitted).

B. Rule 59

Federal Rule of Civil Procedure 59 provides that a Court may order a new

trial "for any reason for which a new trial has heretofore been granted in an action

at law in federal court." Fed. R. Civ. P. 59(a)(1)(A). The standard for granting a new

trial under Rule 59(a) is less stringent than the standard for judgment as a matter

of law under Rule 50. See, e.g., Manley v. AmBase Corp., 337 F.3d 237, 244-45 (2d

Cir. 2003). Granting a new trial is appropriate where "the jury has reached a

seriously erroneous result, or its verdict is a miscarriage of justice." Nimely v. City

of N.Y., 414 F.3d 381, 392 (2d Cir. 2005) (internal quotation marks and citations

omitted). "Unlike judgment as a matter of law, a new trial may be granted even if

there is substantial evidence supporting the jury's verdict. Moreover, a trial judge is

free to weigh the evidence himself and need not view it in the light most favorable

to the verdict winner." DLC Mgmt. Corp. v. Town of Hyde Park, 163 F.3d 124, 134

(2d Cir. 1998). But when "a verdict is predicated almost entirely on the jury's

assessments of credibility, such a verdict generally should not be disturbed except

in an egregious case, to correct a seriously erroneous result, or to prevent a

miscarriage of justice." ING Global v. United Parcel Serv. Oasis Supply Corp., 757

F.3d 92, 99 (2d Cir. 2014) (internal quotations omitted); see also Raedle v. Credit

Agricole Indosuez, 670 F.3d 411, 417-19 (2d Cir. 2012) (noting that a district court

judge "must exercise their ability to weigh credibility with caution and great

restraint," and may not "freely substitute his or her assessment of the credibility of

witnesses for that of the jury simply because the judge disagrees with the jury"

(quoting DLC Mgmt. Corp., 163 F.3d at 134, and United States v. Landau, 155 F.3d

93, 104 (2d Cir.1998)).

DISCUSSION

I. Defendants’ Rule 50 Motion

A. Defendants’ Contentions

In support of their Rule 50 motion, defendants argue that there was probably

cause for arrest and therefore the claims for false arrest and malicious prosecution

must fail. Alternatively, they assert they are protected by qualified immunity

because there was, at a minimum, arguable probable cause. Defendants’ also seek

judgement in their favor on the § 1983 due process/fair trial claim as duplicative of

the malicious prosecution claim and maintain there can be no claim for failure to

intervene as Plaintiff claimed that the Defendants each personally violated his

constitutional rights. Lastly, they argue that the verdict was against the weight of

the evidence. (Defs.’ Rev. Mem. at 10-19.) The Court will address each of these

arguments in turn.

B. The Evidence Permitted the Jury to Find a Lack of Probable

Cause

“Probable cause is a complete defense to a constitutional claim of false arrest,

and continuing probable cause is a complete defense to a constitutional claim of

malicious prosecution.” Oquendo v. City of New York, 2019 WL 2323676, *1 (2d Cir.

2019) (quoting Betts v. Shearman, 751 F.3d 78, 82 (2d Cir. 2014). “Probable cause

exists when one has knowledge of, or reasonably trustworthy information as to,

facts and circumstances that are sufficient to warrant a person of reasonable

caution in the belief that an offense has been or is being committed by the person to

be arrested.” Id. (quoting Betts, 751 F.3d at 82).

Defendants’ argument that there was probable cause to arrest and prosecute

Nelson is fairly summarized by the following excerpt from their memorandum:

It was undisputed that Messina spoke with Det. Rivera about

the alleged theft. She signed a sworn statement connecting Nelson to

the asserted crime. The jury determined that she had dictated that

statement to the police. She also signed the sworn larceny statement

affidavit in support of the larceny charge. Since Nelson did not contend

that Messina lied to intentionally misled Det. Rivera in any way, her

credibility was not challenged. On these circumstances, there was

probable cause for Nelson’s arrest. . . .

Further, because Nelson did not claim that the detectives

learned of intervening facts, after his arrest and prior to the execution

of the felony complaint which could have caused probable cause to

dissipate, there was probable cause for the commencement of the

prosecution as well.

(Defs.’ Rev. Mem. in Supp. at 12 (citations omitted).)

The jury in this case was charged, in pertinent part, as follows with respect to

probable cause:

The test is not whether plaintiff was ultimately convicted of a

charged crime, or some lesser or other offense, but whether a

reasonable police officer under the same circumstances would have

believed that an offense had been committed and that plaintiff was

the person who committed it. An arrest may not be based upon

speculation or conjecture. An officer has probable cause if he has been

advised of a statement signed by a person who claims to be a victim

which statement contains sufficient information for a reasonable

officer to believe that a crime was committed and the plaintiff was the

person who committed the crime and there are no circumstances that

raise doubts as to the victim’s veracity.

(Court’s Jury Charge (DE 78) at 24.) See Panetta v. Crowley, 460 F.3d 388, 395 (2d

Cir. 2006) (“It is well-established that a law enforcement official has probable cause

to arrest if he received his information from some person, normally the putative

victim or eyewitness unless the circumstances raise doubt as to the person's

veracity.”) (internal quotation marks and citations omitted).

Viewing the evidence in the light most favorable to the Plaintiff, a reasonable

jury could conclude that there were circumstances that raised doubts as to whether

a crime was committed by Nelson. First, there is the surveillance video from the

Ultra Diamonds store. While Defendants maintain that it provides probable cause

that a crime was committed by Nelson, a reasonable jury could conclude otherwise.

The video does not show plaintiff stealing or even touching the bracelet that was

claimed to be missing. Indeed, the bracelet cannot be seen anywhere in the

surveillance video and it does not corroborate Messina’s version of the events. The

video does not show that Messina placed any object on the counter, never mind a

placing a piece of jewelry to her left (or that there remained on the counter any

object she had previously placed there) just before she turned her back. It appears

that each item she took off of the movable cart and placed on the counter was then

placed back into the display case before she turned away. Given that it does not

show an item on the top of the display case before she turned her back, a jury could

conclude that the circumstance raised doubt about whether Nelson committed a

crime. Also, they could reasonably conclude that Nelson did not take anything. The

video shows Nelson approaching the display as Messina turns away but it is his left

hand (i.e., the hand farthest away from any supposed item) and not his right hand

that seems, at best to barely graze the counter. Given the foregoing, it warrants

mention that there is no evidence that either of responding officers at the scene, viz.

Detective Rivera and Officer Lankewicz, asked Messina to look her work station to

see if she had placed the bracelet elsewhere. An additional circumstance that casts

doubt on whether Nelson committed a crime is the fact that Nelson was a known

customer of the Ultra Diamonds store.3 He had been in there purchasing

merchandise on a number of occasions and was there on the day in question to bring

back a piece of jewelry that needed repair. His name and all his contact information

was readily available to the store. Also, there is the fact that Nelson he went down

to the police station on his own initiative, an action which Hudson characterized as

“odd” given that people he (Hudson) is investigating do not usually show up to

speak to him. (Tr. at 52-53.) And while “an officer’s failure to investigate an

arrestee’s protestations of innocence generally does not vitiate probable cause,”

Panetta, 460 F.3d 395-96 (emphasis added), the jury could reasonably conclude that

such an oddity should have resulted in Defendants investigating those

protestations.

Defendants argument that that Messina’s credibility was not challenged is

unconvincing in view of the evidence presented. According to Messina, prior to

Nelson leaving the store she was not “concerned about the possibility that he had

taken the bracelet.” (Tr. 260.) Rather she came to believe that he had stolen the

bracelet “[a]fter watching [the video] three to six times or so with three, one police

3 Indeed, that Messina could and did identify Nelson by name in her November 17, 2011 statement

causes one to wonder why it was then necessary for her to further recite that he “is a black male.”

(See Pl.’s Ex. 2.)

officer and two detectives, saying they believe he took something in the case.” “They

believed he took an item from the counter.” “Rivera said it appeared from the video

Mr. Nelson did take something from the case. We would be unsure of what it was.”

(Tr. 262, 266 (emphasis added).) Given the police’s role in affecting her beliefs, it

would be incongruous to hold that as a matter of law that her statement provides

probable cause for Nelson’s arrest.

Given the totality of the circumstances, see Stansbury v. Wertman, 721 F.3d

84, 89 (2d Cir. 2013), a reasonable jury could conclude that there was a lack of

probable cause to arrest Nelson or to commence and continue the criminal

proceeding against him.

With respect to the malicious prosecution claim, it is also significant that

when Hudson and Rivera were informed the following morning that the bracelet

had been found, there was no probable cause to commence or continue the

prosecution, yet the jury apparently concluded that neither defendant took

appropriate steps to ensure that it was discontinued given their interrogatory

answers, to wit that (1) (notwithstanding the officers’ testimony to the contrary)

they did not place a call to the Suffolk County District Attorney's Office on the

morning of November 18, 2011 and advise them that the bracelet had been found

and (2) that the District Attorney's Office did not know before Plaintiff was

arraigned that the bracelet had been found. See generally Jocks v. Tavernier, 316

F.3d 128, 136 (2d Cir. 2013) (stating that to succeed on a claim for malicious

prosecution, a plaintiff must prove, among things, “the initiation or continuation of

a criminal proceeding against plaintiff”) (emphasis added). Indeed, the jury

apparently rejected the veracity of both the Defendants’ testimony that they tried to

reach the DA’s office as soon as they got the call the bracelet had been found, as

well as the officers’ notes reflecting that they waited until they returned to the

precinct before trying to get in touch with the DA’s office rather than calling earlier.

Moreover, rather than take a statement from Messina at the store, Defendants’

testified that they acceded to her request to come down after work to give a follow-

up statement. In other words, they did not take appropriate action to timely notify

the DA that the bracelet had been found. The jury could reasonably reject

Defendants’ testimony (see, e.g., Tr. at 236) that there was nothing they could do to

stop the prosecution once they placed Nelson under arrest. The jury could have

concluded that Defendants had sufficient time prior to Nelson’s arraignment to get

an affidavit from Messina and send it to the DA’s office or otherwise advise the

prosecutor that, in fact, no crime had been committed. Alternatively, given the

testimony of former ADA Ross (the ADA at Nelson’s arraignment) that he did not

have the power to prosecute or decline to prosecute until the arraignment, as it is at

that point a court acquires jurisdiction (Tr. 401), the jury could have concluded that

probable cause evaporated once Messina advised the Defendants that the bracelet

had been found and that control of the prosecution had not yet passed from the

police to the District Attorney. See Weiner v. McKeeffery, 90 F. Supp. 3d 17, 36-37

(E.D.N.Y. 2015).4

4 In Weiner, the Court granted summary judgment in favor of defendant police officer on plaintiff’s

false arrest claim but found there was a genuine issue whether probable cause continued to exist

Accordingly, to the extent Defendants’ Rule 50 motion is premised on the

argument that there was probable cause as a matter of law thus vitiating the claims

for false arrest and malicious prosecution, the motion is denied.

C. Arguable Probable Cause and Qualified Immunity

“Qualified immunity protects public officials from liability for civil damages

when one of two conditions is satisfied: (a) the defendant’s actions did not violate

clearly established law, or (b) it was objectively reasonable for the defendant to

believe that his action did not violate such law.” Garcia v. Does, 779 F.3d 84, 92 (2d

Cir. 2015) (internal quotation marks and citations omitted).

An officer is entitled to qualified immunity against a claim for false arrest if

he can establish that he had “arguable probable cause” to arrest the plaintiff.

Zalaski v. City of Hartford, 723 F.3d 382, 390 (2d Cir. 2013). “Arguable probable

cause exists if either (a) it was objectively reasonable for the officer to believe that

probable cause existed, or (b) officers of reasonable competence could disagree on

whether the probable cause test was met. In deciding whether an officer's conduct

was objectively reasonable, we look to the information possessed by the officer at

the time of the arrest, but we do not consider the subjective intent, motives, or

beliefs of the officer. The relevant, dispositive inquiry in determining whether a

after the arrest given that the police officer had in his possession information regarding plaintiff’s

innocence and there was a question as to what happened between arrest and arraignment including

whether control of the prosecution had passed into the hands of the prosecuting attorney. As Judge

Bianco noted in Weiner “there may be a break in the causation chain between police and prosecutors

sufficient to free police officers from liability on any claim for malicious initiation/continuation of a

prosecution and that plaintiff’s claim for malicious prosecution against the officer would fail “if

control of his prosecution passed from the Suffolk County police to the District Attorney after his

arraignment and the arresting officers were no longer involved in the case.” 90 F. Supp. 3d at 36

(emphasis added).

right is clearly established is whether it would be clear to a reasonable officer that

his conduct was unlawful in the situation he confronted.” Garcia, 779 F.3d at 92

(internal quotation marks and citation omitted).

Defendants maintain that there was, at the very least, arguable probable

cause for Nelson’s arrest and prosecution. They argue:

The jury indicated in its answers to interrogatories that Messina

dictated her statement to Det. Rivera. At the very least, there was

“arguable probable cause” to arrest and charge Nelson based on

Messina’s sworn statement, which the jury determined she dictated to

the police. Singer, 63 F.3d 110. Furthermore, the jury also determined

that Det. Rivera had watched the security video which confirmed

Messina’s statement in that it depicted Messina placing something on

the display counter and turning momentarily, then turning back and

noticing the item was gone and Nelson walking away from the counter.

Plainly there was arguable probable cause for Nelson’s arrest and brief

prosecution such as affords the detectives qualified immunity from his

false arrest and malicious prosecution claims.

(Defs.’ Rev. Mem. in Supp. at 15.)

Preliminarily, the Court notes that contrary to the suggestion in the excerpt

above, the jury made no finding that the security video confirmed Messina’s

statement.5 In fact, there was no request by Defendants that such a question be put

to the jury. Nor was there a request to ask the jury to determine whether Rivera

influenced what Messina put in her statement. (See Defendants’ Proposed Verdict

Form (DE 74).) Absent that information, among others, the Court must construe the

evidence in favor of Plaintiff and such a construction does not permit the conclusion

5 Parenthetically, as noted earlier in the text, a perusal of the video fails to show “Messina placing

something on the display counter” and it disappearing when she turned her back, nor does the

synopsis of Defendants’ position on arguable probable acknowledge Messina’s testimony that her

statement identifying Nelson as the wrongdoer was only given after the officers volunteered that

their perusal of the video so indicated.

that there was arguable probable cause. See Zellner v. Summerlin, 494 F.3d 344,

368 (2d Cir. 2007) (“To the extent that a particular finding of fact is essential to a

determination by the court that the defendant is entitled to qualified immunity, it is

the responsibility of the defendant to request that the jury be asked the pertinent

question. If the defendant does not make such a request, he is not entitled to have

the court, in lieu of the jury, make the needed factual finding.”); Ellis v. LaVecchia,

567 F. Supp. 2d 601, 609 (S.D.N.Y. 2008) (holding that because defendant “failed to

request special interrogatories going to the factual issues relating to [p]laintiffs’

malicious prosecution claim, the record is insufficient to permit the Court to make a

finding in Defendant’s favor on the qualified immunity issue as a matter of law

under Rule 50.”)

As set forth earlier, a reasonable jury could conclude (and the instant jury

apparently did conclude) that the surveillance video does not support that there

was a piece of jewelry on the counter or that if there was a piece of jewelry on the

counter not visible because Messina was blocking it that Nelson’s hand came near

enough to that portion of the display counter to take it. That conclusion either alone

or together with the other circumstances, such as Nelson “oddly” coming down to

the police station on his own, supports that no reasonable police officer could

believe, albeit mistakenly, that there was probable cause to arrest Nelson for theft

of the bracelet. For all the reasons set forth above, Defendants are not entitled to

qualified immunity on either the false arrest or the malicious prosecution claim.

With respect to the malicious prosecution, there are additional factors that

support that conclusion. Hudson and Rivera were informed on the morning of

November 18, the day after Nelson’s arrest, that the bracelet had been found, and a

reasonable officer could not believe that there was probable cause to continue to

hold Nelson or to continue to prosecute him. Cf. Lowth v. Town of Cheektowaga, 82

F.3d 563, 571 (2d Cir. 1996) (“In order for probable cause to dissipate, the

groundless nature of the charges must be made apparent by the discovery of some

intervening fact.”); Betts v. Shearman, 751 F.3d 78, 82 (2d Cir.2 014) ( “[P]robable

cause is a defense to a claim of malicious prosecution if it is not later nullified by

information establishing the defendant's innocence.”). Based on the jury’s answers

to the special interrogatories, it is clear the triers of fact concluded that Defendants

did not take appropriate steps to ensure that Nelson was released, and the

prosecution discontinued. The jury found that the officers did not call the Suffolk

County District Attorney's Office on the morning of November 18, 2011 and advise

that office that the bracelet had been found and further that the District Attorney's

Office did not know before Plaintiff was arraigned that the bracelet had been found.

No reasonable officer could believe that the failure to timely pass on such critical

information was lawful. See Manganiello v. City of New York, 612 F.3d 149, 165 (2d

Cir. 2010) (holding that district court correctly concluded that no reasonable officer

could believe that it is lawful, among other things, to fail to pass on material

information to the prosecutor’s office). Additionally, according to the Defendants’

testimony, rather than take a statement from Messina at the store, interrupting her

work for only a short period of time, they acceded to her request to come down after

work to give a follow-up statement. In other words, they put the Ultra Diamonds

store’s ability to conduct business without even a short interruption over securing

the freedom of a wrongly charged individual.

Finally, Defendants did not request any questions be put to the jury

regarding whether, having been advised of that the bracelet was found, they could

have secured Nelson’s release and/or prevented the continuation of the proceedings

against him. As noted earlier, the jury could reasonably reject Defendants’

testimony (see, e.g., Tr. at 236), on credibility grounds, that there was nothing they

could do to stop the prosecution once they placed Nelson under arrest. The jury

could have concluded that Defendants had sufficient time prior to Nelson’s

arraignment to advise the prosecution of the misplaced jewelry being found. See

generally Hutchinson v. Solomon, 2018 WL 4757970, *12 (S.D.N.Y. Sept. 29, 2018)

(arresting officer may be held liable for malicious prosecution when he withholds

relevant information). Alternatively, given the testimony of former ADA Ross (the

ADA at Nelson’s arraignment) that he did not have the power to prosecute or

decline to prosecute until the arraignment as it is at that point a court has

jurisdiction (Tr. 401), the jury could have concluded that control of the prosecution

had not passed from the police to the District Attorney. See Weiner, 90 F. Supp. 3d

at 36-37. Finally, the jury could have found, and apparently did so find based on

their verdict in Plaintiff’s favor on the denial of a fair trial/due process claim, that

Hudson and Rivera misled the DA’s office by indicating that the video caught

Nelson in the commission of a crime. See Mitchell v. Victoria Home, 434 F. Supp. 2d

219 (S.D.N.Y. 2004).

Accordingly, the Rule 50 motion premised on the assertion that Defendants’

are entitled to qualified immunity on the claims for false arrest and malicious

prosecution claim is denied.

D. The Due Process/ Fair Trial Claim

Defendants assert that Nelson’s denial of due process/fair trial claim should

have been dismissed instead of being sent to the jury for two reasons. First, “[t]his

claim, as structured by Nelson, is indistinguishable from a § 1983 malicious

prosecution claim and was therefore duplicative.” Specifically, “[p]ermitting a §

1983 claim of denial of fair trial to be based on the execution of a charging

instrument would make a denial of a trial essentially identical to one of malicious

prosecution.” Second, Det. Rivera did not sign the felony complaint. (Defs.’ Rev.

Mem. in Supp. at 16-17.) Neither argument is convincing.

“[F]air trial claims based on fabrication of information [are restricted] to

those cases in which an (1) investigating official (2) fabricates information (3) that is

likely to influence a jury’s verdict, (4) forwards that information to prosecutors, and

(5) the plaintiff suffers a deprivation of life, liberty, or property as a result. In order

to succeed on a claim for a denial of the right to a fair trial against a police officer

based on an allegation that the officer falsified information, an arrestee must prove

by a preponderance of the evidence that the officer created false information, the

officer forwarded the false information to prosecutors, and the false information was

likely to influence a jury’s decision. These requirements all provide necessary limits

on the reach of a denial of a fair trial claim based on false information.” Garnett v.

Undercover Officer C0039, 838 F.3d 265. 279-80 (2d Cir. 2016) (internal citations

omitted).

The distinction that Defendants seek to draw is contrary to the very cases

they cite. For example, in Bertuglia v. City of New York, 839 F. Supp. 2d 703, 723

(S.D.N.Y. 2012) claims for both malicious prosecution and denial of fair trial were

asserted based on allegations that the defendants encouraged the prosecution of the

plaintiff while providing false information that served as the basis for the

prosecution. In allowing both claims to proceed, the court wrote:

“Pursuant to § 1983 and prevailing case law, denial of a right to a fair

trial is a separate and distinct cause of action.” Nibbs v. City of New

York, 800 F. Supp. 2d 574, 575 (S.D.N.Y. 2011); see generally Ricciuti v.

N.Y.C. Transit Auth., 124 F.3d 123 (2d Cir.1997). A plaintiff may state

a § 1983 fair trial claim by pleading that the defendants fabricated

evidence and forwarded it to the prosecutors, and that the fabricated

evidence was “likely to influence a jury's decision.” Id. at 130. “[C]ourts

in this District have regularly found Ricciuti to stand for the

proposition that a claim for denial of a right to a fair trial may be

brought alongside one for malicious prosecution even where both are

supported by the same evidence.” Nibbs, 800 F. Supp. 2d at 576

(collecting cases).

Id. at 723-24.6

That both claims may proceed even when based on the same evidence is

supported by the decision in Morse v. Spitzer, 2012 WL 3202963 (E.D.N.Y. Aug. 2,

6 Moreover, a § 1983 fair trial claim does not require that a plaintiff actually go to trial. See Ricciuti,

124 F.3d at 127; see also Douglas v. City of New York, 595 F. Supp.2 d 333, 346 (S.D.N.Y. 2009) (“The

Second Circuit has permitted a claim under § 1983 for violation of the right to a fair trial to proceed

even where no trial took place.”).

2012), another case cite by Defendants. As that court noted, a claim for malicious

prosecution is grounded in the protections of the Fourth Amendment and an

essential element of such a claim is the absence of probable cause. Id. at *2. In

contrast a claim asserting the denial of a right to a fair trial “finds it roots in the

Sixth Amendment, as well as the due process clauses of the Fifth and Fourteenth

Amendments, which secure the fundamental right to a fair trial in criminal

proceedings.” Id. at *3. The existence of probable cause is irrelevant to such a claim.

Id. at *5. Finally, although in the majority of cases “the question of whether the

defendant fabricated evidence becomes synonymous with the question of whether

genuine probable cause existed, and accordingly a plaintiff’s malicious prosecution

and fair trial claims would rise or fall together” nonetheless “these remain distinct

constitutional claims.” Id. at *6.7

Defendant’s argument that a fair trial claim cannot be based on an officer’s

“arrest paperwork, as opposed to evidentiary items created by a police, such as false

confessions, forged documents or planted drugs” is belied by the very case it cites, to

wit Garnett v. Undercover Officer C0039, 838 F.3d 265 (2d Cir. 2016). Therein, the

Circuit held that “any information fabricated by an officer can serve as the basis of

a claim for a denial of the right to a fair trial . . . .” Id. at 279 (emphasis in original).

7 Defendants cite El v. City of New York, 2015 WL 1873099, at *2 (S.D.N.Y. Apr. 23, 2015) for the

proposition that “permitting a § 1983 claim of denial of a fair trial to be based on the execution of a

charging instrument would make a claim of denial of a trial essentially identical to one of malicious

prosecution.” (Defs.’ Mem. in Supp. at 16) However, that case does not support any such proposition;

in fact, that case neither presented a claim for, nor discussed the issue of, a claim for denial of a fair

trial.

Lastly, that Defendant Rivera did not sign the felony complaint or other

arrest paperwork does not insulate him from liability as the jury also found against

him on the failure to intervene claims.

The Rule 50 motion is denied as to the claim for the denial of due process/ fair

trial.

E. Failure to Intervene

In support of their Rule 50 motion addressed to the claim for failure to

intervene, Defendants argue that “this claim is deficient as a matter of law and the

jury should not have been permitted to consider it” because “[w]here as here an

individual defendant is alleged to have personally committed the subject

constitutional violations, he cannot also be held liable for failing to intervene to

prevent those violations.” (Defs.’ Rev. Mem. in Supp. at 17.)

As Plaintiff correctly points out, no such argument was made in Defendants’

motion at the close of Plaintiff’s case. (Pl.’s Rev. Mem. at 12; see Tr. at 430-39.)

Defendants do not address this failure in their Reply. (See Defs.’ Rev. Reply at 7.)

It is well settled that Rule 50(b) relief is available only if a party “sought such

relief before the jury retired to deliberate under Fed. R. Civ. P. 50(a)(2) and limits

the permissible scope of the later motion to those grounds specifically raised in the

prior motion for [judgment as a matter of law].” Provost v. City of Newburgh, 262

F.3d 146, 161 (2d Cir. 2001) (internal quotation marks omitted); see also Conte v.

County of Nassau, 2017 WL 837691, at *6 (E.D.N.Y. Mar. 3, 2017) (“Once a case has

been submitted to the jury, a motion for [judgment as a matter of law] ‘may be

renewed only on grounds that were specifically articulated before submission of the

case to the jury.’ ”) (quoting Kirsch v. Fleet St., Ltd., 148 F.3d 149, 164 (2d Cir. 1998)

). And while such a deficiency can be excused to prevent manifest injustice, see, e.g.,

Cruz v. Local Union No. 3 of Int'l Bhd. of Elec. Workers, 34 F.3d 1148, 1155 (2d Cir.

1994) (“Thus, if an issue is not raised in a previous motion for a directed verdict, a

Rule 50(b) motion should not be granted unless it is required to prevent manifest

injustice.”) (internal quotation marks omitted), no such argument has been

presented here.

In any event, as the Court explained when this issue came up at the charge

conference:

One of the things I advise the jury or instruct the jury about is the

necessity to consider each defendant separately. The jury may conclude

they were a team acting appropriately or inappropriately. On the other

hand, the jury may decide one of the detectives acted appropriately,

the other didn't, but the one that didn't is, nonetheless -- bears some

responsibility because he should have interceded and stopped the

alleged constitutional violation by his partner.

(Tr. 582.)

The failure to intervene portion of Defendants’ Rule 50 motion is denied.

F. Weight of the Evidence

According to Defendants “[v]iewing the evidence rationally and as a whole, it

becomes plain that the jury’s verdict against the detectives is against the weight of

the evidence and should be set aside. The evidence was overwhelming that there

was ample probable cause for Nelson’s arrest and brief prosecution.” (Defs.’ Rev.

Mem. at 18.) The Court does not agree.

For the reasons set forth in section IB supra, there was ample evidence to

support the jury’s determination that no probable cause existed for the arrest or for

the prosecution. Briefly, the video does not show that Messina left anything on the

counter or that Nelson’s hand was positioned so as to take anything that might

have been left on the counter. While the jury determined that Rivera watched the

video on November 17, 2011, they made no determination as to what the video

showed.

Defendants’ also argue that there was “unrefuted” evidence “that Det. Rivera

attempted to call the District Attorney’s office immediately upon learning that the

bracelet had been found but was unable to reach ADA Ross; that his supervisor was

able to reach ADA Ross before Nelson was arraigned but the prosecutor’s office

decided to proceed with Nelson’s arraignment nonetheless.” (Defs.’ Rev. Mem. at 18-

19.) This argument assumes that the jury was required to accept this evidence and

ignores that the jury was entitled to judge the veracity of the testimony presented

based on their assessment of the credibility of the witnesses.

The verdict was not against the weight of the evidence.

II. The Rule 59 Motion

Defendant’s assert that the following conduct of Plaintiff’s counsel warrants a

new trial:

During his summation, Nelson’s trial attorney, Cary London, Esq.,

exhorted the jury to reject evidence which Nelson had made no effort to

controvert on the basis that the detectives and other defense witnesses

were not truthful. He called a defense witness “a little lying robot.” He

stated that they were perpetrating a “cover-up.” In particular, he told

the jury that Det. Rivera’s testimony that he had called ADA Ross,

which Nelson had made no effort to refute, was untrue, and they

should reject it. Mr. London further told the jury during summation

that the detectives “knew they would be sued.” He said that the

detectives and defense counsel had treated Nelson and his wife (who

was not a party) “like criminals.” He told the jury “liability is so

strong”, that there is “100% liability” and that there is “absolute

liability.” Over defense counsels’ objections objection, he was permitted

to address individual jurors by name during summation. Counsel’s

remarks during summation were in addition to the several improper

and prejudicial remarks made during trial to the jury, including that a

witness should not listen to defense counsel and that the detectives

were guilty of criminal perjury under the N.Y. Penal Law.

(Defs.’ Rev. Mem. at 19-20).

The law in this area was aptly stated in Claudio v. Mattituck-Cutchogue

Union Free Sch. Dist., 955 F. Supp. 2d 118 (E.D.N.Y. 2013). As that court stated:

To begin with, when arguing to a jury, counsel must properly have

some latitude, so long as prejudice does not appear. For this reason,

[n]ot every improper or poorly supported remark made in summation

irreparably taints the proceedings; only if counsel's conduct created

undue prejudice or passion which played upon the sympathy of the

jury, should a new trial be granted The determination of whether

remarks made during summation give rise to a new trial remains in

the trial court's broad discretion. Moreover, the court making such a

determination should consider counsel's summation in its entirety

within the context of the court's rulings on objections, the jury

[charge], and any corrective measures applied by the trial court. The

relevant inquiry in assessing undue prejudice is whether there is a

reasonable probability that the jury's verdict was influenced by the

improper conduct of counsel.

Moreover, [w]hen the complaining party fails to object at trial to

statements made during summation, the court will only grant a new

trial when the error is so serious and flagrant that it goes to the very

integrity of the trial. . . . Although the Court understands that defense

counsel might have declined from objecting further for strategic

purposes, the absence of a contemporaneous objection requires the

Court to find flagrant abuse before granting a new trial.

Id. at 155-56 (internal quotation marks and citations omitted) (alterations in

original).

Addressing first the refenced statements during counsel’s closings, except for

one instance to be discussed separately, there was no objection by the defense

during the closing itself. After plaintiff’s closing, the defense requested that the jury

be given two curative instructions: (1) that the arguments of counsel are not

evidence and it is the jurors recall of the evidence that is controlling and (2) that the

court will charge the jury as to the applicable law and the attorneys say is not the

law. The requested instructions were given to the jury. (Tr. 664-669.)8

Here, counsel’s closing was neither unduly prejudicial nor did it play upon

the jury’ s sympathy. To the extent the closing may have been passionate, it was not

prejudicial given the nature of the claims, including that Defendants arguably

fabricated evidence. In any event, the Court’s curative instruction was sufficient to

dispel any prejudice. Finally, notwithstanding the defense’s objection, there was

nothing improper in counsel addressing individual jurors by name during

summation.

Last to be addressed are the only two specified alleged “improper and

prejudicial remarks made during trial,” to wit that “a witness should not listen to

defense counsel and that the detectives were guilty of criminal perjury under the

N.Y. Penal Law.” With respect to the first instance, the referenced transcript

portion does not support that counsel told a witness not to listen to defense counsel.

8 Defense counsel also stated that she believed defendants were entitled to a mistrial but was not

making such a motion in accordance with her clients’ wishes. (Tr. 665-66.)

With respect to the second instance, the objection was sustained, and the jury

instructed to disregard the questions and answers.

The asserted bases do not support the granting of a new trial.

III. The Request for Remittitur

Defendants also seek a new trial on damages, or in the alternative remittitur.

They challenge the punitive damage award in this case arguing that their request is

justified by the disparity between the actual or potential harm suffered by plaintiff

and the punitive damages award. Although they do not state what the amount of

the remittitur should be, based on the cases they cite, they appear to seek a ratio of

no more than 2:1. (See Defs.’ Rev. Mem. at 20-24.)

Remittitur is the “process by which a court compels a plaintiff to choose

between reduction of an excessive verdict and a new trial.” Earl v. Bouchard

Transp. Co., 917 F.2d 1320, 1328 (2d Cir.1990). In fulfilling their obligation to

ensure that punitive damages award are “fair, reasonable, predictable, and

proportionate,” courts are to use the following guideposts set by the Supreme Court

in BMW of N. America v. Gore, 517 U.S. 559 (1996): “(1) degree of reprehensibility of

the defendant’s conduct, (2) relationship of the punitive damages to the

compensatory damages, and (3) criminal and civil penalties imposed by the state’s

law for the misconduct in question.” Payne v. Jones, 711 F.3d 85, 101 (2d Cir. 2013)

(citing Gore, 517 U.S. at 574-75); accord Turley v. ISG Lackawanna, Inc., 774 F.3d

140, 165 (2d Cir. 2014).

While Defendants focus exclusively upon the second Gore factor,

consideration of the other factors is appropriate. Indeed, the first Gore factor, the

reprehensibility of the defendants' conduct, is “[p]erhaps the most important

indicium of the reasonableness of a punitive damages award.” Gore, 517 U.S. at 575.

Three “aggravating factors” have been identified as “associated with

particularly reprehensible conduct.” They include: “(1) whether a defendant's

conduct was violent or presented a threat of violence, (2) whether a defendant acted

with deceit or malice as opposed to acting with mere negligence, and (3) whether a

defendant has engaged in repeated instances of misconduct.” Lee v. Edwards, 101

F.3d 805, 806 (2d Cir. 1996) (citing Gore, 517 U.S. at 576).

Here, the conduct was not violent and there was no evidence presented that

Defendants engaged in repeated instances of the relevant wrongdoing. Hence, only

the second aggravating factor is relevant. The jury found that Defendants had no

probable cause to arrest Nelson or to prosecute him, the latter requiring them to

find that Defendants acted with malice. Additionally, in finding for Plaintiff on his

fair trial claim, the jury apparently agreed with his position that the paperwork

submitted to the DA’s office to support the charge was false. Based on their answer

to the interrogatories submitted to them, the jury found that Defendants did not

make any effort to secure Nelson’s release on November 18 after they were advised

the missing bracelet had been found, i.e. once they had confirmation that he was

innocent. These factors support concluding that Defendants’ conduct was

reprehensible. Cf. Morse v. Fusto, 2013 WL 4647603, *31 (E.D.N.Y. 2013) (finding

that while defendants’ conduct, as found by the jury, in creating false or

fraudulently securing altered documents was reprehensible, given that defendants

had in their possession evidence to suspect the plaintiff of fraudulent billing “their

actions were less blameworthy than one who goes after someone knowing that that

individual is innocent.” ) (emphasis in original).

The second Gore factor is the ratio of punitive to compensatory damages.

Here that ratio is a little over 7:1. In this regard, the following excerpt from in

Payne is instructive:

When the compensable injury was small but the reprehensibility of the

defendant's conduct was great, the ratio of a reasonable punitive

award to the small compensatory award will necessarily be very high.

See, e.g., State Farm, 538 U.S. at 425, 123 S. Ct. 1513 (“[R]atios greater

than those we have previously upheld may comport with due process

where a particularly egregious act has resulted in only a small amount

of economic damages.” (internal quotation marks omitted)); Lee, 101

F.3d at 811 (“[I]n a § 1983 case in which the compensatory damages

are nominal, a much higher ratio can be contemplated.... [T]he use of a

multiplier to assess punitive damages is not the best tool....”). If in

such cases significant punitive awards are not available, because of the

high ratio in relation to the compensatory award, a plaintiff will often

be unable to sue as attorneys would be unable to collect a reasonable

fee through a contingency arrangement. Thus, in cases of very small

injury but very reprehensible conduct, the appropriate ratios can be

very high. In Lee, for instance, the plaintiff was awarded $1 in nominal

damages and $200,000 in punitive damages on his malicious

prosecution claim under 42 U.S.C. § 1983 against a police officer who

attacked him and then falsely accused him of assault. See Lee, 101

F.3d at 807–08. On appeal, we reduced the punitive damages to

$75,000. See id. at 813. Even after the remittitur, the ratio was huge at

75,000 to 1. But 75,000 to 1 was an appropriate ratio on those facts. In

such cases, the large size of the ratio has no necessary bearing on the

appropriateness of the amount of punitive damages. On the other

hand, when the harm to the plaintiff is substantial, and sufficient to

result in a compensatory award large enough to finance a reasonable

contingent attorneys' fee, even a single digit ratio can mean a high

punitive award approaching $1 million. Thus, the Supreme Court

observed in State Farm, “When compensatory damages are

substantial, then a lesser ratio, perhaps only equal to compensatory

damages, can reach the outermost limit. . . .” 538 U.S. at 425, 123 S.Ct.

1513.

Here, the ratio of the $300,000 punitive damages award to Jones's

$60,000 compensatory award is 5 to 1. The ratio, without regard to the

amounts, tells us little of value in this case to help answer the question

whether the punitive award was excessive. Had the facts of the harm

to Payne been such that the jury appraised his compensable loss at

only $10,000 based on the same conduct by Jones, and the jury had

imposed a punitive award on Jones of $100,000, we would not consider

the punitive award excessive, even though the ratio of 10–to–1 would

have been twice as high as the 5–to–1 ratio that actually resulted. On

the other hand, if exactly the same conduct by Jones had caused Payne

$300,000 of compensable harm by reason of a concealed susceptibility

of which Jones was not aware, and the jury had imposed the same

$300,000 in punitive damages, the punitive damages would appear to

us to be very high (because of the relevant low degree of

reprehensibility of Jones's conduct) although representing only a 1–to–

1 ratio. The 5–to–1 ratio of punitive to compensatory damages, by

itself, tells nothing about whether the punitive award was excessive,

but given the substantial amount of the compensatory award, the

punitive award five times greater appears high.

711 F.3d at 102–03; accord State Farm Mutual Automobile Insurance Co. v.

Campbell, 538 U.S. 408, 425 (2003) (stating that “in practice, few awards exceeding

a single-digit ratio between punitive and compensatory damages, to a significant

degree, will satisfy due process,” but later stating in the same opinion that greater

ratios “may comport with due process where a particularly egregious act has

resulted in only a small amount of economic damages.”); Lee v. Edwards, 101 F.3d

805, 811 (2d Cir. 1996) (noting that a punitive damages award over 500 times

greater than a compensatory damages award could be reasonable where the

compensatory damages are nominal); but cf. Turley, 774 F.3d at 165 (“As a general

matter, the four-to-one ratio of punitive to compensatory damages awarded is close

to the line of constitutional impropriety. And where, as here, the compensatory

damages award is imprecise because of the nature of the injury and high when

compared with similar cases, lesser ratio, perhaps only equal to compensatory

damages, can reach the outermost limit of the due process guarantee.”) (internal

quotation marks and citations omitted).

The jury in this case was not asked to specify the nature of the compensatory

damages they were awarding. There was evidence, however, that Nelson spent

approximately $3,000.00 for a criminal defense attorney. (See Tr. 423.) Thus, viewed

in the light most favorable to Plaintiff, the record permits presuming that $3,000 of

the compensatory award was for economic damages, with the remaining $4,000

awarded for non-economic damages caused by Defendants’ conduct. But even

though the award includes non-economic damages, the compensatory award cannot

be characterized as, by any means, overly generous.

The cases cited by Defendants (Defs.’ Rev. Mem. at 23-24) are of little

assistance. First, only two of the six cases cited (see Defs.’ Rev. Mem. at 23-24)

involve claims of false arrest and malicious prosecution. See Stampf v. Long Island

Railroad, 761 F.3d 192 (2d Cir. 2014); Tretola v. County of Nassau, 14 F. Supp. 3d

(E.D.N.Y. 2014); the remaining cases involve claims of employment discrimination,

excessive force and First Amendment retaliation. Second, in each of the six cases

cited the compensatory awards were far larger than the award in the present case.

The jury in Payne awarded $60,000 in compensatory damages and $300,000 in

punitive damages; the Second Circuit reduced punitive damages to $100,000. See

711 F.3d at 101-06. In Stampf, the jury awarded compensatory damages $200,000

for past emotional damages, $100,000 for future emotional damages and $30,000 for

out of pocket damages, together with $150,000 in punitive damages. The Second

Circuit reduced the awards for past and future emotional damages to $100,000 and

the $20,000, respectively and reduced the punitive damage award to $100,000. 761

F.3d at 204-11. A jury awarded the employment discrimination plaintiff in Turley v.

ISG Lackawanna, Inc. $1.32 million compensatory damages and $24 million in

punitive damages, with the latter award reduced to $5 million by the district court.

On appeal the Circuit remanded for reconsideration of the punitive damages award

stating it had to be reduced to no more than twice the compensatory award. 774

F.3d 140, 165-68 (2d Cir. 2014). In Tretola, a $3 million compensatory award that

included $2.4 million for non-economic injury was reduced to $760,605 and a

punitive damages award of $2 million was reduced to $175,000. 14 F. Supp. 3d at

80-90. The court in Fisher v. Mermaid Manor Home for Adults, LLC, 2016 WL

7330554 (E.D.N.Y. Dec. 16, 2016) reduced a $250,00 punitive damages award to

$50,000 where the employment discrimination plaintiff had been awarded $25,000

in actual damages. Id. at *8. The jury in Wallace v. Suffolk County Police Dept.

awarded the plaintiff $200,00 compensatory damages for emotional distress as well

as punitive damages of $225,000 against each of the three defendants for a total

award of $875,000. 2010 WL 3835882, at * 1 (E.D.N.Y. Sept. 24, 2010). The district

court found the punitive damages award excessive and granted a new trial on

damages unless the plaintiff accepted a remittitur of the punitive damages awards

to $100,000 per individual defendant. Id.

The third factor to be considered are the civil and criminal penalties imposed

by the state’s law for the misconduct in question. See Payne, 711 F.3d at 101.

Neither party in this case addresses this issue; thus, no applicable civil penalties

have been brought to the Court’s attention. While it does not appear the conduct of

these Defendants was criminal, in Stampf, a case also involving claims of false

arrest and malicious prosecution, the Second Circuit looked to the offense of “falsely

reporting an incident in the third degree” under New York law, a class A

misdemeanor. N.Y. Penal Law § 240.50. In New York, a person convicted of a class

A misdemeanor may be sentenced to a term of imprisonment “not [to] exceed one

year,” N.Y. Penal Law § 70.15(1), and he or she may be fined by an amount “not

exceeding one thousand dollars,” N.Y. Penal Law § 80.05, but neither a prison

sentence nor a fine is required under New York law. According to the Circuit, that

New York classifies such conduct “as warranting criminal prosecution tends to

confirm the appropriateness of the imposition of a punitive award” but “the fact that

the offense is only a misdemeanor and that courts are at liberty to impose no

imprisonment or fine whatsoever tend to suggest that New York regards this

conduct as occupying the lower echelons of criminality.” 761 F.3d at 211 (internal

quotation marks omitted). Here, the conduct, construed most favorably to plaintiff,

while reprehensible particularly with respect to the officers’ conduct after it became

known that no crime was committed, is far less egregious than the conduct

implicated in Stampf.

Having considered the Gore factors, the Court finds that a ratio of 3 to 1 is

appropriate in this case. Although the conduct of Defendants was reprehensible,

there is no evidence that it was repetitive. Moreover, less than half the

compensatory award was for economic damages. Finally, New York regards falsely

reporting an incident, assuming the conduct at issue can be classified as criminal,

as being on the lower end of criminality. Accordingly, remittitur is appropriate, and

defendants are granted a new trial on punitive damages9 unless Plaintiff accepts a

reduced punitive damages award totaling $21,000.00.

IV. The Issue of Apportionment or Set-Off

Relying upon the decision in Restivo v. Hessemann, 846 F.3d 547 (2d Cir.

2017), Defendants maintain they are entitled to an adjustment of the compensatory

damages award, either by setoff or apportionment, due to Plaintiff’s settlement of

his claims against Ultra Stores, Inc,, Messina and Karen Bahler10 (the “Settling

Defendants”).

By way of background, Plaintiff originally commenced this action on

November 16, 2012, asserting claims for violation of his Fourth, Fifth and

Fourteenth Amendment rights, and for false arrest, failure to intervene, negligence,

negligent infliction of emotional distress against both the Defendants and the

9 See Payne, 711 F.3d at 106 (vacating punitive damages award and ordering a new trial limited to the issue of the

amount of punitive damages unless plaintiff agreed to remittitur).

10 The Court notes parenthetically that Karen Bahler was not mentioned during the trial and her role in the relevant

events is unknown.

Settling Defendants, as well as claims for negligent, hiring, retention, training and

supervision against the County of Suffolk and Ultra Stores and a Monell claim

against the County of Suffolk . On January 24, 2013, Plaintiff filed a stipulation of

dismissal with prejudice as against the Settling Defendants.

Two weeks prior to trial, the parties filed their pre-trial memoranda,

proposed requests to charge and proposed verdict sheets as required by the Court’s

Individual Practice Rules. Neither Defendants’ pre-trial memorandum (DE 59)11,

their requests to charge (DE 57) nor their proposed verdict sheet (DE 58) made any

mention of apportionment or set-off. It was not until July 9, 2018, the first day of

trial, that Defendants filed a revised proposed verdict sheet which asked the jury to

determine the total amount of damages suffered by Plaintiff as a result of the

“wrongful acts” of both the Defendants and the Settling Defendants and to indicate

the percentage of Plaintiff’s total damages caused by each. (DE 66.) The proposed

revised verdict sheet was not accompanied by any additional proposed jury

instructions, although the defense did bring the Restivo decision and the revised

verdict sheet to the Court’s attention that morning, albeit without specifying

Restivo’s significance (see Tr. at 2-3).

The issue of apportionment came up during the cross-examination of Plaintiff

on the second trial day when the defense asked how much he was paid by the

Settling Defendants. (Tr. 375-379.) After reviewing the decision in Restivo, the

11 The Court’s Individual Practice Rules require that pre-trial memoranda “address all contested

issues and/or anticipated legal issues and anticipated evidentiary issues” as well as “the elements of

each claim or defense asserted.” Rule 6(B).

Court suggested that the issue could be deferred and the defense agreed. (Tr. 380-

384.) The defense raised the question of apportionment again the following day

asking whether the Court had a proposed verdict sheet indicating how the issue was

to be handled, but still no proposed jury instruction regarding apportionment was

provided.

Having provided some background, the Court will now turn to whether under

Restivo Defendants are entitled to a set-off or apportionment of compensatory

damages.

In Restivo the Second Circuit addressed the availability of an off-set in a §

1983 action. First, the court evaluated whether state or federal law would apply in

determining whether a setoff was available. The court applied the following three-

part test. “First, if federal law is neither deficient nor inapplicable, it will apply.

Second if federal law does not apply, state law does apply, unless, third, state law

would be inconsistent with the Constitution and laws of the United States.” 846

F.3d 582.

The Restivo court found “federal law is deficient because federal statutory law

is silent on the question of the effect of a settlement on the damage award against a

non-settling defendant in a Section 1983 case, and because federal common law is

not clear on this point.” Id. That reasoning applies here. Moreover, Defendants

never requested a charge addressed to the fault of the settling parties. Further,

while claims for negligence and negligent infliction of emotional distress were

asserted by Plaintiff against both the Defendants and the Settling Defendants, no

such claims are cognizable against the Defendants. See, e.g., Sullivan v. Lakeram,

2016 WL 4097856 (S.D.N.Y. July 28, 2016) (“Under New York law, a plaintiff may

not recover under general negligence principles for a claim that law enforcement

officers failed to exercise the appropriate degree of care in effecting an arrest or

initiating a prosecution.’) (quoting Bernard v. United States, 25 F.3d 98, 102 (2d

Cir. 1994); Smith v. City of New York, 2015 WL 4008642, *3 (E.D.N.Y. June 26,

2015). Rather, a plaintiff seeking relief from injuries flowing from an arrest,

investigation, or prosecution is instead limited to the traditional intentional tort

remedies of false arrest and malicious prosecution. Sullivan, 2016 WL 4097856, at

84. No such limitations exist with respect to the Settling Defendants.

Next, the Restivo court found that New York law “which provides for either a

pro-tanto (dollar for dollar) setoff or setoff of the settling tortfeasor’s equitable share

is inconsistent with federal policy underlying Section 1983.” 846 F.3d at 585.

Further, a proportionate share reduction was inappropriate because, inter alia, the

defendant did not request an instruction that the jury should determine the

appropriate share of “settling” party’s proportionate share of liability or consider the

effect of a prior settlement when determining damages.

Restivo does not support Defendants’ position. First, it found federal law

deficient and New York’ dollar for dollar set off as inconsistent with the purpose of

§1983. As in Restivo Defendants did not request an instruction that the jury

determine the appropriate share of the Settling Defendants liability; submitting a

proposed verdict form addressing the issue without any accompanying proposed

request to charge is not sufficient. Finally, the jury in this case was instructed to

assess damages “for any injury proximately caused by that defendant’s conduct as it

relates to the claims for which you found him liable” and that they could award

compensatory damages “only for injuries plaintiff proves were proximately cause by

a defendant’s allegedly wrongful conduct.” (DE at 49-50.)

In sum, Defendants are not entitled to a set-off or apportionment of damages.

CONCLUSION

For the reasons set forth above, Defendants’ motion pursuant to Fed.

R. Civ. Pro 50 and 59 is granted to the extent that Defendants are granted a new

trial on punitive damages unless Plaintiff accepts a reduced punitive damages

award totaling $21,000.00; it is otherwise denied. Plaintiff shall advise the Court on

or before September 12, 2019, whether he accepts the remittitur.

SO ORDERED.

Dated: Central Islip, New York s/ Denis R. Hurley

August 22, 2019 Denis R. Hurley

United States District Judge