# Fox v. Triborough Bridge and Tunnel Authority

> District Court, E.D. New York · May 22, 2020

URL: https://www.frixlaw.com/law-library/cases/10304311

## Case

- **Court:** District Court, E.D. New York
- **Decided:** May 22, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
DANIEL FOX,
Plaintiff, MEMORANDUM & ORDER
17-CV-4143 (NGG) (JO)
-against-

TRIBOROUGH BRIDGE AND TUNNEL
AUTHORITY, and Officer RANDOLPH
SANDERS,
Defendants.
NICHOLAS G. GARAUFIS, United States District Judge.
Plaintiff Daniel Fox brought this action under 42 U.S.C. § 1983
against Defendants Officer Randolph Sanders and the Tri-
borough Bridge and Tunnel Authority (“TBTA”) alleging that
Sanders subjected him to excessive force.1 The case proceeded to
trial. At the close of Plaintiff’s case, the court denied Defendants’
motion to dismiss Plaintiff’s municipal liability claim against the
TBTA. (See Trial Tr. (undocketed) at 630:18-635:25.) On No-
vember 15, 2019, following four days of trial, the jury returned
a verdict in favor of Plaintiff. (See Jury Verdict Sheet (Dkt. 101).)
Specifically, the jury found that Plaintiff had proven by a prepon-
derance of the evidence that Sanders subjected Plaintiff to exces-
sive force and that the TBTA’s failure to train its officers
demonstrated deliberate indifference to potential violations of
Plaintiff’s constitutional rights. (Id.)
Defendants now renew their motion for a directed verdict pursu-
ant to Federal Rule of Civil Procedure 50(b)(3) with respect to

1 Plaintiff initially brought suit against two additional Defendants: Ser-
geant Laura Tully and Officer Keisha Johnson. (See Compl. (Dkt. 1).) How-
ever, Plaintiff withdrew his claims against Tully and Johnson during trial.
(See Trial Tr. at 56:11-18.)
Plaintiff’s municipal liability claim under Monell. (See Mot. to Dis-
miss, Vacate, and/or Set Aside Verdict (“Mot.”) (Dkt. 105); Defs.
Mem. in Supp. of Mot. (“Mem.”) (Dkt. 105).) Defendants also
move this court under Rule 50(b)(3) to set aside the verdict (and
dismiss the cause of action) against Sanders, arguing that he is
entitled to qualified immunity. (See Mem. at 14.) Plaintiff op-
poses Defendants’ motion. (See Opp. (Dkt. 110).) For the reasons
set forth below, Defendants’ motion is DENIED.
BACKGROUND
The court assumes familiarity with the background of this case,
see generally Fox v. Triborough Bridge & Tunnel Auth., No. 17-CV-
4143 (NGG), 2019 WL 5842792 (E.D.N.Y. Nov. 7, 2019),2 and
only briefly reviews the relevant facts. On June 28, 2017, Plaintiff
was riding his bicycle with the intention to ride over the Marine
Parkway Bridge from Brooklyn to Far Rockaway. (Trial Tr. at
139:3-141:24.) Sanders was on patrol on the Brooklyn side of
the bridge, and he directed Plaintiff to dismount and walk over
the pedestrian pathway of the bridge—a direction that accorded
with the instructions on a sign on the bridge. (Id. at 74:17; 519:1-
5.) Sanders testified that Plaintiff did not dismount; instead,
Plaintiff swore at Sanders and continued to ride his bicycle over
the pedestrian pathway to the Far Rockaway side. (Id. at 525:6-
10.) Sanders testified that, in addition to Plaintiff, there were
dozens of people that day who, despite the sign indicating it was
prohibited, rode bicycles across the bridge’s pedestrian pathway,
none of whom were stopped by Sanders. (Id. at 480:19-23;
483:21-484:14.) The main difference, from Sanders’s perspec-
tive, was that Plaintiff was “disrespectful” to him. (Id. at 480:24-
481:4.)

2 When quoting cases and unless otherwise noted, all citations and quota-
tion marks are omitted and all alterations are adopted.
After Plaintiff did not dismount from his bicycle, Sanders drove
his patrol vehicle to the Far Rockaway side of the bridge and
stood in the middle of the pedestrian walkway with the intention
of stopping Plaintiff and issuing him a summons. (Id. at 481:5-
11.) Sanders stood in the middle of the walkway as Plaintiff rode
his bicycle towards him. (Id. at 483:1-9.) At trial, the parties dis-
puted exactly what happened next. Plaintiff testified that as he
rode towards Sanders, Sanders did not indicate that Plaintiff
should stop riding in any way and, instead, kept his arms crossed.
(Id. at 151:20-152:10.) Plaintiff testified that he attempted to
ride his bicycle around Sanders and that Sanders “body-jacked”
or “pushed” Plaintiff “with his arms or something, and [Plain-
tiff’s] whole bike flipped forward.” (Id. at 151:24-152:3.) Plaintiff
testified that, as a result, “my foot was caught in the bike and my
face hit the ground, my whole body hit the ground . . . .” (Id.) For
his part, Sanders testified that he gave Plaintiff a “verbal com-
mand” to stop as Plaintiff rode his bicycle towards him. (Id. at
508:10-17.) Sanders testified that Plaintiff “tried to get around
me, clipped my shoulder and fell of the bike.” (Id. at 542:3-6.)
After considering the testimony before it—and reviewing a video
clip of the incident—the jury determined that Sanders had used
excessive force in stopping Plaintiff on the bridge. (Jury Verdict
Sheet.) As to Plaintiff’s municipal liability claim under Monell, the
jury found that the TBTA’s failure to train its officers demon-
strated deliberate indifference to potential violations of Plaintiff’s
constitutional rights. (Id.)
LEGAL STANDARD
Federal Rule of Civil Procedure 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 legally
sufficient evidentiary basis to find for the party on that issue.’”
Cash v. Cty. of Erie, 654 F.3d 324, 333 (2d Cir. 2011) (quoting
Fed. R. Civ. P. 50(a)(1)). “That burden is particularly heavy
where . . . the jury has deliberated in the case and actually re-
turned its verdict in favor of the nonmovant.” Id. “In such circum-
stances, a court may set aside the verdict only if there exists 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 the evidence in favor of the movant is so over-
whelming that reasonable and fair minded persons could not ar-
rive at a verdict against it.” Id. “[I]n entertaining a motion for
judgment as a matter of law the court should review all of the
evidence in the record. In doing so, however, the court must
draw all reasonable inferences in favor of the nonmoving party,
and it may not make credibility determinations or weigh the ev-
idence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
150 (2000).
Defendants seek judgment as a matter of law (“JMOL”) pursuant
to Federal Rule of Civil Procedure 50(b)(3). Rule 50(b)(3) allows
a party to move for a “renewed motion for a judgment as a matter
of law” if the movant’s Rule 50(a) motion was not granted. Fed.
R. Civ. P. 50(b). In other words, “because the Rule 50(b) motion
is only a renewal of the preverdict motion, it can be granted only
on grounds advanced in the preverdict motion,” i.e., the party’s
original motion under Rule 50(a). See Lore v. City of Syracuse,
670 F.3d 127, 153 (2d Cir. 2012) (quoting Fed. R. Civ. P. 50
Advisory Committee Note (2006)).
Under Rule 50(a), a party seeking JMOL must satisfy two re-
quirements “to assure the responding party an opportunity to
cure any deficiency in that party’s proof.” Lore, 670 F.3d at 152.
First the party must move for such judgment “before the case is
submitted to the jury.” Fed. R. Civ. P. 50(a)(2). Second, the
party’s motion “must specify the judgment sought and the law
and facts that entitle the movants to the judgment.” Id. “[T]he
specificity requirement is obligatory,” Lore, 670 F.3d at 152, such
that “[a] Rule 50(a) motion requesting [JMOL] on one ground
but omitting another is insufficient to preserve a [JMOL] argu-
ment based on the later.” Id. “As to any issue on which proper
Rule 50 motions were not made, JMOL may not properly be
granted . . . unless that action is required in order to prevent
manifest injustice.” Id. at 153.
DISCUSSION
A. Qualified Immunity
Here, Defendants seek JMOL on two issues: (1) the jury’s verdict
on Plaintiff’s Monell claim and (2) whether Sanders is entitled to
qualified immunity for his use of excessive force. (See generally
Mem.) However, review of the trial record makes clear that De-
fendants sought JMOL only on the Monell issue and not on the
question of qualified immunity before the case was submitted to
the jury. Specifically, at the close of the Plaintiff’s case, Defend-
ants’ sought to dismiss a “number of causes of action” alleged by
Plaintiff. (Trial Tr. at 629:12.) These included Plaintiff’s failure
to intervene and withholding of medical care claim3 and Plain-
tiff’s Monell claim. (See id. at 629:17-630:21.)4 The court then

3 Plaintiff withdrew his failure to intervene claim and withholding of med-
ical care claim. (See Trial Tr. at 629:15-630:14.) Plaintiff confirmed that
the withholding of medical care claim was “part of the failure to intervene
claim.” (See id. at 630:13.)
4 After addressing Plaintiff’s failure to intervene and withholding of medi-
cal care claim, Defendants’ counsel stated: “Your Honor, I would also move
to dismiss the Monell claim. There’s no indication that any of the require-
ments under Monell have been met in this case.” (Trial Tr. at 630:18-21.)
The court asked Plaintiff’s counsel if he agreed, to which Plaintiff’s counsel
responded that he “[d]isagree[d] . . . strongly.” (Id. at 631:1-3.) The court
then asked Defendants’ counsel what was next on his list of motions, at
which point Defendants’ counsel responded “[t]hose are the two claims
that I - - well, one has already been discontinued.” (Id. at 631:7-9.) De-
fendants’ counsel then made his argument to the court as to why Plaintiff’s
Monell claim should be dismissed. (See id. at 631:10-633:19.)
heard argument from Defendants’ counsel on Defendants’ mo-
tion to dismiss Plaintiff’s Monell claim (see id. at 631:10-633:19),
and the court denied the motion with leave to renew. (Id. at
635:23-25.) At the close of Defendants’ case, Defendants’ re-
newed their motion to dismiss Plaintiff’s Monell claim, which the
court denied. (See Id. at 679:23-680:3; 681:22-23.) Defendants
also asked the court to “renew [Defendants’] motion to dismiss
the excessive force claim against Officer Sanders,” which the
court also denied. (Id.)
Critically, Defendants did not make a motion for directed verdict
on qualified immunity at either the close of Plaintiff’s case or the
close of their own case. In other words, Defendants did not make
a motion for JMOL on the issue of qualified immunity at any time
before the case was submitted to the jury. Accordingly, the court
cannot grant their motion as to the issue of qualified immunity
unless doing so is necessary to prevent manifest injustice.
Defendants only address this issue in a footnote, noting that
“[q]ualified immunity was raised as an affirmative defense in
[D]efendants’ Answer …, in [D]efendants’ Trial Memo of Law . .
., in [Defendants’] Proposed Jury Instructions . . . and at the
Charge Conference.” (Mem at 1 n. 1.) Yet that is plainly insuffi-
cient to satisfy the requirements of Rule 50. See Lore, 670 F.3d at
152 (Rule 50’s “specificity requirement is obligatory.”). In fact,
before the opening of the case, the court explicitly told Defend-
ants that while Defendants could “raise qualified immunity at
any time,” they had not yet done so and would need to make a
“dispositive motion.” (Trial Tr. at 37:11-39-12.) Defendants,
however, made no such motion; in fact, the only other discus-
sions about qualified immunity with the court involved proposed
jury instructions and the proposed jury charge. (See id. at 37:11-
13; 70:11-22; 332:11-15.) The court therefore cannot grant their
motion now unless doing so is necessary to prevent manifest in-
justice. See Alla v. Verkay, 979 F. Supp. 2d 349, 369 (E.D.N.Y.
2013) (“discussing [an issue] with the court . . . during the trial”
does not preserve that issue for the purposes of Rule 50.”). How-
ever, Defendants have not argued that denying them JMOL on
qualified immunity grounds would create manifest injustice. The
court agrees it would not, and, accordingly, finds they are pre-
cluded from seeking JMOL based on qualified immunity. See
Pereyra v. Fancy 57 Cleaners, Inc., No. 11-CV-1522 (RJS), 2013
WL 1385205, at *2-4 (E.D.N.Y. Mar. 20, 2013).
B. Monell
Defendants also seek JMOL on Plaintiff’s Monell claim, arguing
that the evidence presented to the jury was insufficient to es-
tablish the requirements of municipal liability. (Mem. at 4-13.)
This part of Defendants’ motion is properly before the court
because Defendants moved for JMOL on this issue before the
case was presented to the jury. (See Trial Tr. at 630:18-25.)
A municipality may be liable under 42 U.S.C. § 1983 for con-
stitutional violations of its employees when such violations re-
sult from the municipality’s official policy. Monell v. Dep’t of
Social Servs. of N.Y., 436 U.S. 658, 692-94 (1978). Such a pol-
icy may be (1) an express policy; (2) “a widespread practice
that, although not authorized by written law or express mu-
nicipal policy, is so permanent and well settled as to constitute
a custom or usage with the force of law,” City of St. Louis v.
Praprotnik, 485 U.S. 112, 127 (1988), or (3) a decision by a
person with “final policymaking authority,” see Praprotnik, 485
U.S. at 123; see also Pembaur v. City of Cincinnati, 475 U.S.
469, 481-83 (1986).
Here, Plaintiff argued to the jury that the TBTA was liable be-
cause it failed to adequately train its employees. A failure to
monitor, supervise, or discipline employees can give rise to
municipal liability. See Vann v. City of New York, 72 F.3d 1040,
1049 (2d Cir. 1995). In such a case, “[a] § 1983 plaintiff . . .
may establish the pertinent custom or policy by showing that
the municipality, alerted to the possible [constitutional viola-
tion], exhibited deliberate indifference.” Id. at 1049. In Walker
v. City of New York, the Second Circuit held that the following
three requirements must be met before a municipality’s failure
to train or supervise constitutes deliberate indifference to the
constitutional rights of its citizens:
• That the “policymaker knows to a moral certainty that
her employees will confront a given situation”;
• That “the situation either presents the employee with a
difficult choice of the sort that training or supervision will
make less difficult or that there is a history of employees
mishandling the situation”; and
• That “the wrong choice by the city employee will
frequently cause the deprivation of a citizen’s
constitutional rights.”
974 F.2d 293, 297-98 (2d Cir. 1992); see also Canete v. Metro.
Transp. Auth., No. 17-CV-3961 (PAE), 2018 WL 4538897, at *5
(S.D.N.Y. Sept. 20, 2018). As explained below, Plaintiff proffered
sufficient evidence at trial for the jury to find deliberate indiffer-
ence with respect to Plaintiff’s excessive force claim.
First, Plaintiff elicited testimony from Sanders that one of his
main functions as a TBTA officer assigned to the Marine Parkway
Bridge was to monitor for bicyclists, make sure bicyclists dis-
mounted when using the pedestrian walkway, and give them a
warning or a summons if they did not dismount but instead kept
riding. (Trial Tr. at 448:3-20.) In addition, Sanders testified that
there were “dozens” of other bicyclists riding across the bridge
on the day of the incident with Plaintiff, and that earlier in the
day two bicyclists had ignored a command from Sanders’s super-
visor to stop riding, at which point Sanders was instructed to stop
and issue summonses to those riders. (Id. at 480:19-23; 526:4-
527:11.) Taken together, this testimony was sufficient for the
jury to conclude that the TBTA knew to a “moral certainty” that
its officers would: (1) confront bicyclists who attempted to con-
tinue riding their bicycles on the pedestrian pathway despite
signs and verbal warnings from officers not to do so, and (2) be
required to effectuate stops of, and issue summonses to, those
bicyclists.
Second, in terms of the lack of training, Sanders answered “no”
to questioning from the court as to whether his supervisors had
ever trained him on how to deal with a situation of trying to stop
“a bicycle rider riding downhill . . . by just standing there and
telling him to stop.” (Id. at 456: 20-457:2.) Sanders further testi-
fied that the TBTA “did not train me to stand in the walkway and
take on a bicyclist.” (Id. at 460:14.) As to the role any such train-
ing would have played in Sanders’s handling of the incident with
Plaintiff, Sanders himself testified that training would have made
a difference:
Q: Now, Officer Sanders, you were faced with a difficult de-
cision that day is your testimony, correct?
A: Difficult as in how?
Q: In how to deal with a bicyclist who is coming down at a
high pace on the walkway; correct?
A: Correct.
Q: You were not trained on how to deal with a bicyclist who
is coming down at that pace from the bridge; correct?
A: That’s correct.
Q: Wouldn’t you agree that if you were provided specific
training on how to deal with this particular situation that
would assist you in knowing how to deal with it?
A: Yes.
(Id. at 496:19-497:8). Later in his testimony, Sanders again reit-
erated this point:
Q: If you would have been trained would that have made a
difference in this case?
A: It would have helped.
Q: And in what way?
A: I would have made a better decision.
(Id. at 510:3-7.) The evidence presented to the jury was therefore
sufficient to show that Sanders was faced with a “difficult choice
of the sort that training or supervision will make less difficult.”
Walker, 974 F.2d at 297-98; see also Greenaway v. Cty. of Nassau,
327 F. Supp. 3d 552, 565 (E.D.N.Y. 2018).
Finally, a jury could reasonably find that “body jack[ing]” or
“push[ing]” (Trial Tr. at 151:24-152:3), a citizen off his moving
bicycle such that he falls off his bicycle can, depending on the
surrounding circumstances, constitute the use of excessive force
and therefore cause the deprivation of a citizen’s constitutional
rights.
Defendants’ arguments to the contrary are unavailing. First, De-
fendants argue that the altercation between Sanders and Plaintiff
was an “isolated act” and therefore is “not sufficient to demon-
strate a municipal custom, policy or usage that would justify mu-
nicipal liability.” (Mem. at 6 (quoting Jones v. Town of East Haven,
691 F.3d 72, 81 (2d Cir. 2012).) As the court has previously
noted, however, the fact that “a pattern of similar constitutional
violations by untrained employees is ordinarily required [to jus-
tify municipal liability],” see Connick v. Thompson, 563 U.S. 51,
61 (2011), does not mean it is always required. Here, the jury
heard compelling evidence that the TBTA specifically designated
officers like Sanders to patrol the bridge for bicyclists impermis-
sibly riding across the bridge and to give summonses to those
bicyclists. (Trial Tr. at 447:24-448:20.) At the same time, Sand-
ers himself testified that (1) the TBTA did not provide him with
any training specific for that assignment and (2) specific training
would have made it easier for him to safely discharge his duties.
(Id. at 496:19-497:8.) It was therefore reasonable for the jury to
determine that the need for training to prevent constitutional
deprivations of the sort suffered by Plaintiff was “obvious.” See
Vann, 72 F.3d at 1049.
Second, Defendants argue that Plaintiff failed to prove the nec-
essary “affirmative link” between the TBTA’s failure to train and
Sanders’s conduct as required under Monell. (Mem. at 7 (quoting
City of Oklahoma City v. Tuttle, 471 U.S. 808, 823 (1985)).) That
is not consistent with the evidence presented to the jury—again,
by Sanders himself—that training on how to effectuate bicycle
stops would have “assisted” him when he was faced with the “dif-
ficult decision” of how to effectuate a stop of Plaintiff, and that
such “specific training” would have led to a “better decision.”
(Trial Tr. at 496:19-497:8; 510:3-7.) Defendants’ reliance on
Crews v. Cty of Nassau, 149 F. Supp.3d 287 (E.D.N.Y. 2015) is
inapposite. There, the court rejected the plaintiff’s Rule 59 mo-
tion after a jury found in favor of the defendant municipality on
the plaintiff’s Monell claim alleging that the municipality failed to
adequately train or supervise its personnel on the handling of ex-
culpatory evidence. Id. at 294. In particular, the court found that
plaintiff had not established that his constitutional injury was
caused by the defendant’s failure to train, noting that one of the
defendant officers “testified under questioning by each of the par-
ties that, regardless of any training he did or did not receive from
the [municipality] on the handling of exculpatory evidence, he
fully understood his obligations to disclose exculpatory evi-
dence.” Id. at 296. That testimony stands in stark contrast to
Sanders’s testimony in this case that specific training regarding
the situation he faced with Plaintiff would have “assisted” and
“benefited” him and led to a “better decision.” (Trial Tr. at
496:19-497:8; 510:3-7.) Whereas it was reasonable for the jury
in Crews to conclude, based in part on the officer’s testimony, that
any lack of training on the part of the defendant municipality was
not “directly injurious” to plaintiff, Crews, 149 F. Supp. 3d at 296,
here it was reasonable for the jury, based in part on Sanders’s
testimony, to conclude the opposite.
Based on the foregoing, the court concludes that Defendants
have not met their “heavy burden” to demonstrate that there was
no “legally sufficient evidentiary basis” for the jury’s verdict on
Plaintiff’s Monell claim. Cash, 654 F.3d at 333 (2d Cir. 2011).
CONCLUSION
For the foregoing reasons, Defendants’ (Dkt. 105) motion is DE-
NIED. The Clerk of Court is respectfully DIRECTED to enter judg-
ment in favor of Plaintiff in accordance with the jury’s verdict.
SO ORDERED.

Dated: Brooklyn, New York
May 22, 2020

_/s/ Nicholas G. Garaufis_
NICHOLAS G. GARAUFIS
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10304311. Public record. Not legal advice.