Opinion

Robinson v. Ballard

Court: District Court, N.D. New York
Filed: Sep 26, 2019
Cited by: 0 cases
Authority: More cited than 26.8%

“Although the parties had agreed that the determination of damages would be made 3. As To Rule 52 by the trial judge following a jury trial on “Rule 52(a

How later courts described this case

“Although the parties had agreed that the determination of damages would be made 3. As To Rule 52 by the trial judge following a jury trial on “Rule 52(a
“failure to object to a jury They should be disregarded. instruction or the form of an interrogatory prior And his statement to you to the jury retiring results in a waiver of that about the meaning of objection”
claimed improper character evidence admitted at trial not error where opposing counsel elicited the testimony on cross- examination and then did not move to strike it

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

_____________________________________________

RENDELL ROBINSON,

Plaintiff,

9:13-CV-01213

v. (TWD)

LORENZO A. BALLARD, et al.,

Defendants.

_____________________________________________

APPEARANCES: OF COUNSEL:

RENDELL ROBINSON

Plaintiff pro se

3001900384

Eric M. Taylor Center (EMTC)

10-10 Hazen Street

East Elmhurst, NY 11370

LETITIA JAMES AIMEE M. PAQUETTE, ESQ

Attorney General for the State of New York Assistant Attorney General

Attorneys for Defendants

The Capitol

Albany, NY 12224

THÉRÈSE WILEY DANCKS, United States Magistrate Judge

DECISION and ORDER

I. INTRODUCTION

Pro se Plaintiff Rendell Robinson commenced this civil rights action under 42 U.S.C. §

1983, asserting several claims arising out of his confinement while he was an inmate-patient in

the Marcy Residential Mental Health Unit at the Marcy Correctional Facility on July 14, 2010.

(Dkt. No. 1.) After initial review, discovery, and dispositive motions, claims remaining for trial

were (1) an Eighth Amendment excessive force claim against Defendants Ballard, Onyan,

Wojtanowski, Holmes, and Cacciotti; (2) an Eighth Amendment failure to intervene claim

regarding the alleged excessive force against Defendant Strassburger; and (3) claims of

supervisory liability against Defendants Hilton, Bellnier, and Harper. (Dkt. Nos. 7, 41, 66.) A

jury trial of these remaining issues began on September 24, 2018, and resulted in a jury verdict in

favor of all Defendants which was returned on September 28, 2018. (Dkt. No. 137.) Following

the trial, the Court filed a judgment in favor of Defendants. (Dkt. No. 138.)

II. RELEVANT PROCEDURAL HISTORY

Plaintiff initially requested an extension of time to file any post-trial motions and

requested a copy of the trial transcript. (Dkt. No. 139.) Before the Court had a chance to rule on

the request, he filed a preliminary motion for a new trial and asked permission to supplement that

motion. (Dkt. No. 140.) The Court granted Plaintiff’s requests and directed that any

supplemental motion should be filed by December 17, 2018. (Dkt. No. 141.) By letter to

Plaintiff dated November 7, 2018, the court reporter advised Plaintiff of the estimated cost of the

trial transcript with further instructions on how to obtain the transcript. (Dkt. No. 142.)

Thereafter, Plaintiff did not file any request to waive the transcript fee, but he did file a

request to further extend his time to supplement his post-trial motion which was granted. (Dkt.

Nos. 143, 144.) He was directed to file any further supplemental motion by January 17, 2019.

(Dkt. No. 144.) Without any additional requests to extend the time to supplement his motion or

address the issue of the trial transcript, Plaintiff filed a supplemental motion for a new trial with

an oversized supplemental brief. (Dkt. Nos. 147, 147-4.) The supplemental motion and brief

were filed three weeks after the second extended deadline set by the Court had expired. (See

Dkt. Nos. 144, 147.) Plaintiff did not provide any reason for the late filing, nor did he request

permission to file an oversized brief. Defendants sought to have the late supplemental motion

and brief stricken (Dkt. No. 145), but the Court denied that request and accepted Plaintiff’s

supplemental motion and brief. (Dkt. No. 148.) The Court then extended Defendants’ time to

respond to Plaintiff’s supplemental motion, and Plaintiff’s time to file a reply. Id. Defendants

timely filed a response in opposition to Plaintiff’s motion (Dkt. No. 149), but Plaintiff did not file

any reply.

Therefore, currently before the Court is Plaintiff’s motion and supplemental motion

(collectively “motion” or “Plaintiff’s motion”) for a new trial pursuant to Federal Rule of Civil

Procedure 59(a) and to alter or amend the judgment pursuant to Rule 59(e), and Defendants’

response in opposition. (Dkt. Nos. 140, 147, 149.) The Court has thoroughly considered all of

the parties’ filings on this motion. For the reasons set forth below, Plaintiff’s motion is denied in

its entirety.

III. GOVERNING LEGAL STANDARDS

A. Legal Standard Governing a Motion for a New Trial

Rule 59(a) of the Federal Rules of Civil Procedure provides, in pertinent part, that “[t]he

court may, on motion, grant a new trial on all or some of the issues-and to any party- . . . after a

jury 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 Second Circuit has interpreted this standard

to permit the granting of new trials when “in the opinion of the district court, the jury has reached

a seriously erroneous result or the verdict is a miscarriage of justice.” DLC Mgmt. Corp.v. Town

of Hyde Park, 163 F.3d 124, 133 (2d Cir. 1998) (internal quotation marks omitted); Lightfoot v.

Union Carbide Corp., 110 F.3d 898, 911 (2d Cir. 1997). Examples of such a serious error or a

miscarriage of justice include when “the verdict is against the weight of the evidence,” or when

“for the reasons stated the trial was not fair to the moving party.” Mallis v. Bankers Trust Co.,

717 F.2d 683, 691 (2d Cir. 1983). However, “the court should only grant a motion for a new trial

when the jury’s verdict is ‘egregious.’” DLC Mgmt. Corp., 163 F.3d at 134 (internal quotation

marks omitted); Dunlap-McCuller v. Riese Org., 980 F.2d 153, 158 (2d Cir. 1992), cert. denied,

510 U.S. 908 (1993). “[I]n addressing a Rule 59 motion, the court may ‘independently weigh the

evidence presented at trial to determine whether the jury’s verdict is ‘seriously erroneous’ or

resulted in a ‘miscarriage of justice.’” Edwards v. Schrader-Bridgeport Int’l., Inc., 205 F. Supp.

2d 3, 8 (N.D.N.Y. 2002). “In doing so, the court ‘is afforded considerable discretion.’”

Edwards, 205 F. Supp. 2d at 8.

Additionally, “[i]t is well-settled that Rule 59 is not a vehicle for relitigating old issues,

presenting the case under new theories, securing a rehearing on the merits, or otherwise taking a

second bite at the apple.” Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998) (citations

omitted). “The standard for granting a new trial under Rule 59 is less stringent [as compared to

the standard for judgment as a matter of law under Rule 50], but still relatively high.” Starr

Indem. & Liab. Co. v. Am Claims Mgmt., 131 F. Supp. 3d 185, 188 (S.D.N.Y. 2015), aff’d, 665

Fed. App’x 27 (2d Cir. 2016) (summary order).

B. Legal Standard Governing a Motion to Alter or Amend a Judgment

Rule 59(e) of the Federal Rules of Civil Procedure does not prescribe any specific

grounds for granting a motion to alter or amend a final judgment. However, in agreeing with

other circuits, the Second Circuit stated “[t]hat district courts may alter or amend judgment to

correct a clear error of law or prevent manifest injustice.” Munafo v. Metro. Transp. Auth., 381

F.3d 99, 105 (2d Cir. 2004) (internal quotation marks and citations omitted). A Rule 50(e)

motion “may not be used to relitigate old matters, or to raise arguments or present evidence that

could have been raised prior to the entry of judgment.” Exxon Shipping Co. v. Baker, 554 U.S.

471, 485 n.5 (2008). “When a Rule 59(e) motion addresses a matter already considered by the

court, it is governed by an even more exacting standard. In such an instance, reconsideration is

generally granted only in the event of an intervening change of controlling law, the availability of

new evidence, or the need to correct clear error or prevent manifest injustice. Mere disagreement

with the court’s prior ruling does not constitute a basis for reconsideration of a judgment

entered.” Cargill, Inc. v. Sears Petroleum & Transport Corp., 388 F. Supp. 2d 37, 80-81

(N.D.N.Y. 2005) (citations and internal quotations omitted).

IV. ANALYSIS

Generally, liberally construed, Plaintiff’s motion for a new trial asserts the following

arguments: (1) the verdict was contrary to the weight of the evidence; (2) the Court erred in

permitting testimony regarding an incident in which Plaintiff threw hot water on a correction

officer and was convicted of a crime as a result; (3) Plaintiff was not allowed to present all

evidence regarding his claims; (4) prejudicial evidence was admitted regarding Plaintiff’s alleged

gang affiliation, a prior incident of Plaintiff taking a correction officer’s baton, and testimony that

the Office of Special Investigations found Plaintiff’s excessive force complaint unsubstantiated;

(5) an incomplete document was admitted into evidence; (6) Defendants’ counsel made improper

closing arguments; and (7) jury instructions were improper. (See generally Dkt. No. 147.)

Defendants oppose each of Plaintiff’s arguments, and further argue that Plaintiff’s

supplemental brief exceeds the allowable twenty-five page limit and should be disregarded since

Plaintiff did not obtain prior permission from the Court to exceed the permissible page limit.

(See generally Dkt. No. 149.)

In view of Plaintiff’s pro se status on the motion, and as set forth above, the Court

granted Plaintiff liberal extensions to submit his post-trial motion, and the Court has likewise

accepted and thoroughly considered his oversized brief.

A. Motion for a New Trial

After carefully considering the matter, the Court denies Plaintiff’s motion based upon

Federal Rule of Civil Procedure 59(a) for a new trial. Initially, the Court notes that for the bulk

of Plaintiff’s arguments, he fails to cite to any transcript or record from the trial to support them.

These “unsupported contentions . . . are insufficient to justify the grant of a new trial.” AMW

Materials Testing, Inc. v. Town of Babylon, No. 01 CV 4245 (ADS) (ETB), 2008 WL 11449231,

at *18 (E.D.N.Y. Mar. 13, 2008). Nevertheless, the Court has considered each of Plaintiff’s

arguments and will address them in the same order as presented by Plaintiff.

1. Weight of the Evidence

Plaintiff argues there was no evidentiary basis for the jury to find for the Defendants and

that the verdict was against the weight of the evidence. (Dkt. No. 147-4 at 10-201.) Plaintiff

recites his testimony at trial and the testimony of Defendants’ witnesses regarding the details of

the events giving rise to his claims of excessive force. The Court has thoroughly reviewed

Plaintiff’s voluminous arguments and exhibits in this regard and finds that Plaintiff has not come

1 Page references to documents identified by docket number refer to the page

numbers inserted by the Court’s electronic filing system maintained by the Clerk’s office.

forward with any evidence to show that the jury reached a seriously erroneous result or that the

verdict was a miscarriage of justice. Manley v. AmBase Corp., 337 F.3d 237, 244 (2d Cir. 2003).

For the most part, Plaintiff argues that his testimony was more credible than the testimony of the

Defendants. (Dkt. No. 147-4 at 11-16.) However, in considering a Rule 59 motion for a new

trial, “the court should only grant such a motion when the jury’s verdict is egregious . . . [and] a

court should rarely disturb a jury’s evaluation of a witness’s credibility.” DLC Mgmt. Corp., 163

F.3d at 134 (citations and internal punctuation omitted). As such, the Court declines to disturb

the jury’s findings on this basis.

2. Testimony Regarding Hot Water Incident

Plaintiff claims plain error of the Court because there was testimony presented during

trial by Defendant Harper regarding an incident where Plaintiff threw hot water on a correction

officer and was subsequently convicted of a crime as a result. (Dkt. No. 147-4 at 20.) While

Plaintiff is correct that the Court ruled in a motion in limine that only the number of felony

convictions and the fact that Plaintiff was sentenced to more than one year were admissible (Dkt.

No. 131), the testimony at issue was actually elicited by Plaintiff on cross-examination of

Defendant Harper. (Dkt. No. 149-4 at 11.) Plaintiff does not provide any evidence that he

objected to this testimony or moved to strike it during trial. Koch v. Greenberg, 14 F. Supp. 3d

247, 267 (S.D.N.Y. 2014), aff’d, 626 F. App’x 335 (2d Cir. 2015) (claimed improper character

evidence admitted at trial not error where opposing counsel elicited the testimony on cross-

examination and then did not move to strike it). Further, Plaintiff has not shown that the

testimony swayed the jury in such a way as to affect the outcome of the case. The Court,

therefore, finds a new trial is not warranted on this basis.

3. Presentation of All Evidence

Plaintiff next argues that a new trial should be ordered because his deposition transcript,

his affidavit submitted to the Court in opposition to Defendants’ summary judgment motion, and

his treatment records from the Office of Mental Health should have been entered into evidence at

trial. (Dkt. No. 147-4 at 22-28.) He claims this testimony, affidavit, and records should have

been admitted “as trial evidence to support [his] case” and “as proof to the quality of evidence”

(id. at 26), and to “support [his] trial testimony.” (Id. at 27.) However, this evidence was never

offered at trial. Additionally, Plaintiff testified in person at trial regarding his claims and the

events leading up to them, and his attorneys cross-examined all of Defendants’ witnesses.

Plaintiff essentially seeks to relitigate his claims, but as noted above, “[i]t is well-settled that

Rule 59 is not a vehicle for relitigating old issues, presenting the case under new theories,

securing a rehearing on the merits, or otherwise taking a second bite at the apple.” Sequa Corp.,

156 F.3d at 144 (citations omitted). Accordingly, this argument fails.

4. Prejudicial Evidence

Plaintiff claims a new trial should be conducted because prejudicial evidence was

admitted pertaining to (1) his alleged gang affiliation; (2) another incident where Plaintiff took an

officer’s baton; and (3) information that the Office of Special Investigations found Plaintiff’s

excessive force claim unsubstantiated. (Dkt. No. 147-4 at 28-30.) Plaintiff does not argue that

this evidence was objected to at trial, or that he requested any limiting or curative instructions.

See id. For these reasons alone, Plaintiff’s argument fails.

Additionally, Rule 61 provides “unless justice requires otherwise, no error in admitting or

excluding evidence . . . is ground for granting a new trial.” Fed. R. Civ. P. 61. Courts “must

disregard all errors and defects that do not affect any party’s substantial rights.” Id. Whether an

evidentiary error implicates a substantial right depends on “the likelihood that the error affected

the outcome of the case.” Malek v. Fed. Ins. Co., 994 F.2d 49, 55 (2d Cir. 1993). Here, Plaintiff

has not shown that the jury’s decision was influenced by the evidence at issue. Further, there was

significant testimony, video evidence, and documentary evidence to support the jury’s verdict.

Therefore, a new trial is not warranted on these grounds.

5. Incomplete Document

Next, Plaintiff claims that defense counsel destroyed or significantly altered evidence and

a spoliation instruction was therefore warranted. (Dkt. No. 147-4 at 30-32.) Specifically,

Plaintiff asserts a document admitted into evidence was missing a page. (Id. at 31; Dkt. No. 147-

12 at 2-7.) However, the complete document was admitted into evidence as Trial Joint Exhibit

14. (Dkt. No. 149-2 at 1-12.) As such, no new trial is warranted under these circumstances since

the entire document was before the jury.

6. Improper Closing Statements of Defendants’ Counsel

Plaintiff claims defense counsel’s closing statement “was undignified and intemperate,

containing improper instructions and assertions calculated to mislead the jury . . . .” (Dkt. No.

147-4 at 32.) Plaintiff does not assert that he objected during the summation. Under these

circumstances, a new trial is warranted only where counsel’s conduct prejudices the opposing

party or unfairly influences a jury’s determination. Tesser v. Bd. of Educ. of Sch. Dist., 370 F.3d

314, 321 (2d Cir. 2004). “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.”

Claudio v. Mattituck-Cutchogue Union Free Sch. Dist., 955 F. Supp. 2d 118, 156 (E.D.N.Y.

2013) (citations and quotation marks omitted). “Moreover, when 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.” Id. (citations and

quotation marks omitted).

Plaintiff argues that defense counsel mislead the jury regarding his alleged lack of

injuries. (Dkt. No. 147-4 at 33.) Since Plaintiff’s relevant medical records generated after the

claimed excessive force at issue were admitted into evidence as Joint Exhibit 12, the Court finds

any error in this regard is not serious or flagrant. (See Dkt. No. 135 at 2.)

Plaintiff also argues defense counsel improperly referred to Plaintiff “yelling to his ‘gang

brothers.’” (Dkt. No. 147-4 at 33.) Video evidence of a gang related comment made by Plaintiff,

as interpreted by a Defendant, was introduced at trial without any objection by Plaintiff (Dkt. No.

149-4 at 21; see also Dkt. No. 135 at 1 (referencing video as Joint Exhibit 1)), and no objection

was made during the summation. Under these circumstances as noted above, the Court is

required to find “flagrant abuse” before granting a new trial. Claudio, 955 F. Supp. 2d at 156.

Given that evidence regarding a gang related comment was introduced during the trial, without

objection, the Court concludes there are no grounds for a new trial based upon such statements of

defense counsel in Defendants’ summation.

7. Jury Instructions

Plaintiff argues the Court’s jury instructions in response to two requests from the jury

during their deliberations were misleading. (Dkt. No. 147-4 at 34.) The jury requested

“clarification of excessive force guidelines” and “what happens if we can’t be agreeable on

verdict?” (Dkt. No. 134.) In advance of calling the jury back into the Courtroom, the Court

conferred with counsel for the parties. The jurors had a written copy of the jury instructions,

therefore the Court referred the jurors to that part of the jury instructions that defined excessive

force, and gave an Allen charge in response to the second request. (Dkt. No. 149-3 at 13-15;

Text Minute Entry 9/28/2019.) Neither Plaintiff nor Defendants objected at that time, or at the

time of the original jury charge conference, or before or after the instructions were delivered to

the jury on the record in advance of any deliberations.

To the extent any such motion for a new trial is premised on an objection to a jury

instruction, Federal Rule of Civil Procedure 51 requires the movant to have raised that objection

before the jury retires, in order to preserve the objection. See Brenner v. World Boxing Council,

675 F.2d 445, 456 (2d Cir. 1982), cert. denied, 459 U.S. 835 (1982). Rule 51 provides, in

pertinent part, that “[a] court may consider a plain error in the instructions that has not been

preserved as required by Rule 51(d)(1) if the error affects substantial rights.” Fed. R. Civ. P.

51(c) and (d). As such, “to establish plain error, [the movant] must show there was (1) error (2)

that is plain and (3) that affects substantial rights.” U.S. v. Cossey, 632 F.3d 82, 86-87 (2d Cir.

2011) (citations omitted). The error should be corrected only if it “seriously affects the fairness,

integrity, or public reputation of the judicial proceedings.” Id. at 87 (citations and punctuation

omitted). “The plain error doctrine should only be invoked with extreme caution in the civil

context.” Feeley v. City of New York, 362 F. Supp. 3d 153, 160 (S.D.N.Y. 2019) (citation and

quotation marks omitted). “To constitute plain error, a court’s action must contravene an

established rule of law and the substantial right affected must go to the very essence of the case.”

Id. (citations and internal punctuation omitted).

Here, there is no such error. Plaintiff argues the Court only gave the jurors “law in favor

of the defendant[]s and [did] not give the law to the jurors on plaintiff’s behalf as to what

excessive force is.” (Dkt. No. 147-4 at 35.) Plaintiff does not provide any argument on what

part of the instruction on excessive force specifically favored Defendants or what was lacking as

to Plaintiff. Id. A fair reading of the instructions on excessive force (Dkt. No. 149-3 at 13-15)

and in a reading of the instructions in their entirety, fails to establish that any alleged error was

prejudicial. A jury instruction is erroneous, and a new trial warranted, only if it misleads a jury

as to the correct legal standard or does not adequately inform the jury on the law. Anderson v.

Branen, 17 F.3d 552, 556 (2d Cir. 1994). Plaintiff speculates that the jury “[d]idn’t understand

the readable jury instructions and really didn’t know what to do and didn’t know that prison

officials violate inmate constitutional rights.” (Dkt. No. 147-4 at 35.) However, the Plaintiff has

not shown the jury instructions were legally incorrect, led to any jury confusion, or caused any

prejudice. Therefore, Plaintiff has failed to show the instructions resulted in a seriously

erroneous result or a miscarriage of justice requiring a new trial. Nimely v. City of New York,

414 F.3d 381, 392 (2d Cir. 2005) (citations omitted).

After conferring with counsel, the Court read the Allen charge in response to the jury’s

question “what happens if we can’t be agreeable on verdict?” (See Dkt. No. 134.) “The term

‘Allen charge’ is a generic term used for a type of supplemental instruction that is given to a

deadlocked jury, first approved by the Supreme Court in Allen v. United States . . . [which]

reminds the jurors of the importance of obtaining a verdict and encourages jurors to listen ‘to

each other’s arguments’ while also emphasizing that ‘the verdict must be the verdict of each

individual juror, and not a mere acquiescence in the conclusion of his fellows.’” Smalls v.

Batista, 191 F.3d 272, 275 n.1 (2d Cir. 1999). Plaintiff does not specifically provide what part of

the charge he finds objectionable other than to assert the Court “rushed the jury to make an

improper verdict.” (Dkt. No. 147-4 at 36.). “[T]here is nothing improper with instructions that

encourage a deadlocked jury to reach a verdict, as long as jurors are not encouraged to abandon,

without any principled reason, doubts that any juror conscientiously holds . . . .” Baker v.

Kirkpatrick, 768 F. Supp. 2d 493, 507 (W.D.N.Y. 2011) (citations and punctuation omitted).

Plaintiff has not submitted any evidence that the Court rushed the jurors or made any other

comments to infer they should acquiesce to other jurors to reach a verdict. Accordingly, the

Court finds no error here warranting a new trial.

B. Motion to Alter or Amend the Judgment

Plaintiff has not made any argument that the jury verdict was clear error of law or that it

is necessary to alter or amend it to prevent manifest injustice. (See generally Dkt. No. 147-4.)

Additionally, Plaintiff does not assert that new evidence is available or that there has been an

intervening change in controlling law. Id. Plaintiff clearly disagrees with the jury’s verdict, and

apparently wants to relitigate the issues that have been decided by the jury. Under these

circumstances, there is no basis to reconsider the judgment entered in accordance with the jury’s

verdict.

The Court has considered all of Plaintiff’s arguments and finds no legally sufficient

reason to disturb the jury’s verdict.

WHEREFORE, it is hereby

ORDERED that Plaintiff’s motion for a new trial or to alter or amend the judgment

pursuant to Rule 59 of the Federal Rules of Civil Procedure (Dkt. Nos. 140, 147) is DENIED;

and it is further

ORDERED that the Clerk provide Plaintiff with a copy of this Decision and Order, along

with copy of the unpublished decision cited herein in accordance with the Second Circuit

decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).

Dated: September 26, 2019

Syracuse, New York

a Wiley Dancks

United States Magistrate Judge

industrial facility on October 9, 2000, that

2008 WL 11449231

resulted in the release or threatened release

Only the Westlaw citation

of hazardous substances into the environment.

is currently available.

The North Amityville Fire Company, Inc.

United States District

(“Fire Company” or “NAFC”) and the

Court, E.D. New York.

Town of Babylon (“Town”) (collectively, the

AMW MATERIALS TESTING, INC. “Defendants”), responded to the fire. The

and Anthony Antoniou, Plaintiffs, owner, Anthony Antoniou and the business

v. located at the facility, AMW Materials Testing,

TOWN OF BABYLON, and Inc. (“AMW”) (collectively, the “Plaintiffs”),

the North Amityville Fire claim that the Defendants are liable under: (1)

Company, Inc., Defendants. the Comprehensive Environmental Response,

Compensation and Liability Act (CERCLA),

01 CV 4245 (ADS) (ETB) 42 U.S.C. § 9607 (2004); (2) the New York

| Navigation Law; and (3) for common law

Signed 03/13/2008 negligence.

Attorneys and Law Firms

Following a trial in September and October

2006, the jury was unable to reach a verdict.

LUSTBERG & FERRETTI, 5 Garrison Road,

The case was re-tried in February and March

Glens Falls, NY 12801, By: Robert M.

2007 and the jury rendered a verdict in favor

Lustberg, Esq., Joan M. Ferretti, Esq., Of

of the Defendants. Presently before the Court

Counsel, Attorneys for the Plaintiffs.

are the Plaintiffs' motions for: (1) judgment as a

TADDEO & SHAHAN, LLP, 472 S. Salina matter of law pursuant to Rule 50 of the Federal

Street, Suite 700, Syracuse, NY 13202, By: Rules of Civil Procedure (“Fed. R. Civ. P.”); (2)

Steven C. Shahan, Esq, Of Counsel, Attorneys judgment under CERCLA pursuant to Fed. R.

for the Defendants. Civ. P. 52; and (3) a new trial pursuant to Fed.

R. Civ. P. 59.

LOWENSTEIN, SANDLER, KOHL, FISHER

& BOYLAN, 65 Livingston Avenue, Roseland,

NJ 07068-1791, By: Richard Ricci, Esq., Of

I. BACKGROUND

Counsel, Attorneys for the Defendants.

A. Factual Background

Although the Court will not relate the entire

MEMORANDUM OF factual background of this case in the present

DECISION AND ORDER Order, the relevant facts are set forth in this

Court’s Memoranda of Decision and Order

Arthur D. Spatt, United States District Judge dated December 20, 2004, AMW v. Town of

Babylon, 348 F.Supp.2d 4 (E.D.N.Y. 2004)

Babylon, No. 01-cv-4245, and the Second further determined that whether and to what

Circuit’s Order dated March 28, 2006, AMW extent the Plaintiffs incurred response costs

v. Town of Babylon, 187 Fed.Appx. 24 (2d Cir. voluntarily, was also a factual issue. Id. at

2006). Familiarity with those decisions, as well 25-28. The Second Circuit held that the

as the trial transcript, is assumed. CERCLA issues should be “appropriately

addressed by the trier of fact.” Id. at 27.

B. Procedural Background *2 The Second Circuit further determined that

On June 22, 2001, the Plaintiffs commenced factual issues exist regarding the Plaintiff’s

this action seeking to hold the Defendants negligence claims that, additionally, should be

liable for damages that resulted from a fire addressed at trial. Id. at 27-28. Finally, the

at the Plaintiffs' facility. Some of the losses Second Circuit determined that the Plaintiff’s

include the cost of environmental remediation Navigation Law claims were improperly

that the Plaintiffs undertook by reason of dismissed on summary judgment because the

the apparent escape of hazardous and toxic issue of the Defendants' lack of culpability

materials from the AMW facility during the should not have been decided as a matter of

fire. The Plaintiffs also seek damages for law. Id. at 28. The Second Circuit specifically

lost profits and punitive damages. In their noted that it remanded the case for trial on the

complaint, the Plaintiffs assert causes of action Navigation Law cause of action and “whether

under Sections 107 and 113 of CERCLA, or not the Plaintiffs can state a CERCLA

strict liability for ultrahazardous activity, joint claim.” Id. at 28.

and several liability under the New York

Navigation Law and common law negligence. From September 12, 2006 through October 11,

2006, this Court held a jury trial of the issues

On December 20, 2004, this Court granted in this case. On October 10, 2006, the jury

the Defendants' motion for summary judgment informed the Court that it was unable to reach a

and dismissed the complaint in its entirety. unanimous verdict on the Plaintiffs' CERCLA

On March 28, 2006, the Second Circuit claims, but had reached a unanimous verdict on

affirmed this Court’s dismissal of the Plaintiffs' the remaining Navigation Law and negligence

CERCLA Section 113(f)(1) claim. However, claims. In Court, on this partial verdict, the jury

the Second Circuit vacated the dismissal of returned a verdict in favor of the Defendants

the Plaintiffs' remaining claims. AMW, 187 on the Navigation Law and negligence claims.

Fed.Appx. 24. However, when the jury was polled, one juror

did not agree to the verdict. As a result, the

Specifically, the Second Circuit found that Court instructed the jury to return to the jury

resolution of the Plaintiffs' CERCLA Section deliberation room and begin deliberations from

107(a) claim would necessarily involve the the beginning.

determination of disputed issues of fact,

including, whether the Defendants were

Court that it was unable to reach a unanimous NAFC was an operator. The Plaintiffs assert

verdict on any of the three causes of action. that the Court must now find that NAFC was

The Court then accepted the disagreement and an operator and therefore strictly liable under

excused the jurors. CERCLA.

The Defendants moved for judgment as a The Plaintiffs further contend that the record,

matter of law pursuant to Fed. R. Civ. P. 50(b). and specifically, the testimony of Chiefs Tutt,

The Plaintiffs opposed the Defendants' motion, Gooch, and Clayton, Fire Marshall Arcuri,

and additionally, cross-moved for judgment as and Stephen Bopp, demonstrates that NAFC

a matter of law. On December 26, 2006, the exercised complete control over AMW. As

Court denied the motions for judgment as a a result, they contend that NAFC is an

matter of law and ordered the parties to appear operator and strictly liable. The Court notes that

for jury selection for re-trial of the case. although the Plaintiffs generally name various

witnesses, they fail to cite any portions of the

On February 26, 2007, the jury was selected trial transcript or any specific trial testimony in

and on February 28, 2007, the trial commenced. support of their contentions.

On March 28, 2007, the jury reached a

unanimous verdict in favor of both Defendants *3 The Plaintiffs also contend that judgment

on all causes of action. should be entered against the Town pursuant

to Rules 50 or 52. Without citing to any

pages of the trial transcript, the Plaintiffs claim

C. The Plaintiffs' Contentions that Fire Marshall Arcuri testified that he was

On May 3, 2007, the Plaintiffs moved for: (1) not responding to an emergency caused by

judgment as a matter of law pursuant to Fed. the release or threatened release of hazardous

R. Civ. P. 50; (2) judgment under the CERCLA materials. They further contend that he testified

statute in favor of the Plaintiffs pursuant to Fed. that he did not know of the presence of

R. Civ. P. 52; and (3) a new trial pursuant to hazardous materials at the facility.

Fed. R. Civ. P. 59. The Plaintiffs contend that,

as to the Plaintiffs' CERCLA claims, the Court In addition, the Plaintiffs contend that they

determined that it would treat the jury verdict are entitled to a new trial because during

as an advisory verdict. The Plaintiffs contend his summation, Steven C. Shahan, counsel

that the jury found that the NAFC failed to for the Defendants, utilized three documents

prove that it was responding to an emergency which were not in evidence regarding whether

caused by the release or threatened release of petroleum had been released. Although the

hazardous materials, as evidenced by the jury’s Plaintiffs admit that the Court gave the jury

response to question 1 on the verdict sheet. The a curative charge in regard to this issue,

Plaintiffs contend that, as a result, NAFC is they contend that the curative charge actually

strictly liable under 42 U.S.C. § 9607(a) upon exacerbated the prejudice to the Plaintiffs by

a finding that it was an operator. However, the emphasizing that the Defendants' error was

mistake. act grossly negligent. They contend that the

Plaintiffs failed to establish that the Defendants

Finally, with regard to the negligence causes were operators of the AMW facility. In support

of action, the Plaintiffs contend that they had of their contentions, the Defendants cite to

a special relationship with the Defendants and numerous pages from the trial transcript.

the special relationship existed as a matter of

law. The Plaintiffs further contend that the The Defendants assert that the firefighters were

Court erroneously instructed the jury regarding only inside the AMW facility for a short

the Cuffy test, despite the fact that the test time and at no time were they able to direct

was not mentioned by the Second Circuit in its or manage what was happening to hazardous

Decision in this case. In addition, the Plaintiffs materials inside the building. The Defendants

contend that the jury in the prior trial of this further claim that hazardous substances were

case, would have found the Defendants grossly being released prior to the payloader moving

negligent. debris. The Defendants also assert that they

were responding to an emergency created by

On the final page of the Plaintiffs' submission, the release or threatened release of hazardous

they contend that they are entitled to a substances. They contend that they are not

new trial as a result of misleading questions liable as operators of the facility. As such, they

by the Defendants during trial regarding contend that they are immune from liability

a determination made by the New York because they did not act grossly negligent.

Department of Environmental Conservation The Defendants note that if they are found

(“DEC”), as well as a misleading opening liable, they are entitled to contribution from the

statement by the Defendants' counsel, Mr. Plaintiffs.

Shahan, regarding the DEC’s determination.

The Plaintiffs again fail to cite any portion *4 The Defendants further argue that the

of the trial transcript or provide the Court Plaintiffs are not entitled to a new trial on

with information sufficient to locate the alleged the New York Navigation Law claims. The

improper statements. In fact, the Plaintiffs fail Defendants note that the Plaintiffs contend that

to even provide the Court with the alleged defense counsel, during summation, referred

improper questions or the alleged improper to hazardous waste manifests showing the

opening statements. recovery of three 55 gallon drums of waste

oil, believing that they were a part of

Plaintiffs' exhibit 45. However, they were

D. The Defendants' Contentions not admitted in evidence. The Defendants

The Defendants agree that, with regard to the note that Plaintiffs did not object during the

CERCLA causes of action, because the jury Defendants' summation and the Court gave the

verdict is advisory, the Court must make its own jury a curative instruction to disregard those

independent findings of fact and conclusions documents and the arguments based on them.

of law. They contend that the Defendants were The Defendants contend that now, for the first

instruction was insufficient. Is Me, 157 F.3d at 142.

Finally, the Defendants contend that the Court Stated somewhat differently, we are “required

properly instructed the jury regarding the New to ‘consider the evidence in the light most

York negligence causes of action and there was favorable to the party against whom the motion

sufficient evidence for the jury to have found was made and to give that party the benefit

that no special relationship existed between the of all reasonable inferences that the jury might

parties. have drawn in his favor from the evidence.’ ”

Tolbert v. Queens Coll., 242 F.3d 58, 70 (2d

Cir. 2001) (quoting Smith v. Lightning Bolt

Prods., Inc., 861 F.2d 363, 367 (2d Cir. 1988)

II. DISCUSSION

). A court evaluating such a motion “cannot

assess the weight of conflicting evidence, pass

A. The Standards of Review

on the credibility of the witnesses, or substitute

1. As To A Rule 50 Motion for Judgment its judgment for that of the jury.” Id. at 70

As A Matter of Law (quoting Smith, 861 F.2d at 367); Black v.

“[T]he same standard that applies to a pre- Finantra Capital, Inc., 418 F.3d 203, 209 (2d

trial motion for summary judgment pursuant Cir. 2005).

to Fed. R. Civ. P. 56 also applies to motions

for judgment as a matter of law during or after Finally, the Court is mindful that motions

trial pursuant to Rule 50.” This Is Me v. Taylor, pursuant to Rule 50 “should be cautiously

157 F.3d 139, 142 (2d Cir. 1998) (citing Piesco and sparingly granted.” 9 CHARLES ALAN

v. Koch, 12 F.3d 332, 341 (2d Cir. 1993) ). WRIGHT AND ARTHUR R. MILLER,

A district court may not grant judgment as a FEDERAL PRACTICE AND PROCEDURE

matter of law unless “the evidence is such, § 2524 (2d ed. 1994). “[W]e may reverse the

that without weighing the credibility of the district court only if there is such a complete

witnesses or otherwise considering the weight absence of evidence supporting the verdict that

of the evidence, there can be but one conclusion the jury’s findings could only have been the

as to the verdict that reasonable [persons] could result of sheer surmise and conjecture, or [there

have reached.” Cruz v. Local Union No. 3 of the is] such an overwhelming amount of evidence

IBEW, 34 F.3d 1148, 1154-55 (2d Cir. 1994) in favor of the movant that reasonable and fair

(quoting Simblest v. Maynard, 427 F.2d 1, 4 minded [jurors] could not arrive at a verdict

(2d Cir. 1970) ). Weakness of the evidence against [him].” Nimely v. City of New York,

does not justify judgment as a matter of law; 414 F.3d 381, 390 (2d Cir. 2005).

as in the case of a grant of summary judgment,

the evidence must be such that a reasonable

2. As To A Rule 59 Motion For A New

juror would have been compelled to accept the

Trial

view of the moving party. See Fairbrother v.

As an alternative to their request for judgment

should not be granted unless the trial Court findings is to inform the appellate court of the

is convinced that the jury has reached a basis of the decision and to permit effective

seriously erroneous result or that the verdict is appellate review.” In re Mazzeo, 167 F.3d at

a miscarriage of justice.” Tesser v. Board of 142. “The findings of fact and conclusions of

Education, 370 F.3d 314, 320 (2d Cir. 2004); law ... need not include punctilious detail [ ]or

see also Armstrong v. Brookdale University slavish tracing of the claims issue by issue

Hospital, 425 F.3d 126, 133 (2d Cir. 2005). and witness by witness.” Id. (internal citations

omitted). “Indeed it has been held in this Circuit

*5 In contrast to a motion for judgment that Rule 52(a) requires the Court to make its

as a matter of law, a motion for a new findings independent from the jury’s ... On the

trial pursuant to Rule 59 may be granted other hand, it would be purposeless to have

by the District Court, even though there is an advisory jury unless some deference was

evidence to support the jury’s verdict, so long shown to its opinions. Moreover, decisions in

as the District Court determines that, in its this Circuit have indicated a preference for a

independent judgment, “the jury has reached a jury’s verdict over the findings of a District

seriously or erroneous result or (its) verdict is a Judge.” Felker, 899 F.Supp. at 888-89.

miscarriage of justice”. Munafo v. Metropolitan

Transportation Authority, 381 F.3d 99, 105 (2d In this case, the Court allowed the CERCLA

Cir. 2004); see also Nimely v. City of New issues to be decided in the first instance by

York, 414 F.3d at 392; Manley v. Ambase the jury as an advisory verdict. See Fed. R.

Corp., 337 F.3d 237, 244-45 (2d Cir. 2003). Civ. P. 39(c) (“In all actions not triable of right

Also, the trial judge is free to weigh the by a jury the court upon motion or of its own

evidence herself and need not view it in the initiative may try any issue with an advisory

light most favorable to the winner. Manley, 337 jury”). See, e.g. Harris v. Niagara Mohawk

F.3d at 244-45. Power Corp., 252 F.3d 592, 595-96 (2d Cir.

2001) (“Although the parties had agreed that

the determination of damages would be made

3. As To Rule 52 by the trial judge following a jury trial on

“Rule 52(a) provides, in pertinent part, that liability, the jury was asked to give an advisory

‘in all actions tried upon the facts without a verdict with respect to damages”). Although an

jury or with an advisory jury, the court shall advisory verdict is not binding on the trial court,

find the facts specially and state separately its purpose is “to enlighten the conscience of

its conclusions of law thereon.’ ” Mazzeo v. the Court.” Skolberg v. Villani, 601 F.Supp.

Lenhart (In re Mazzeo), 167 F.3d 139, 142 981, 982 (S.D.N.Y. 1985). However, it is

(2d Cir. 1999) (citing Fed. R. Civ. P. 52(a) ). wholly within the discretion of the trial court

See also Felker v. Pepsi-Cola Co., 899 F.Supp. whether to accept or reject in whole or

882, 888 (D. Conn. 1995) (“Fed. R. Civ. P. in part the verdict of the advisory jury. 9

52 requires the Court, although sitting with CHARLES ALAN WRIGHT AND ARTHUR

an advisory jury, to make its own findings of

PROCEDURE § 2335 (2d ed. 1995). or arranged for the treatment or disposal of

a hazardous substance at the facility; and

With these standards in mind, the Court will (4) any person who transported hazardous

review the claims in the present case. substances to the facility. 42 U.S.C. § 9607(a)

(1)–(4); see also Commander, 215 F.3d at 326;

B.F. Goodrich Co. v. Murtha, 958 F.2d 1192,

B. As To CERCLA 1198 (2d Cir. 1992). Potentially responsible

The Comprehensive Environmental Response, persons are held strictly liable for cleanup costs

Compensation, and Liability Act (CERCLA), incurred by any other person. B.F. Goodrich v.

also known as the Superfund Law, regulates Betkoski, 99 F.3d 505, 514 (2d Cir. 1996); New

the release of hazardous substances and the York v. Shore Realty Corp., 759 F.2d 1032,

cleanup of sites where hazardous substances 1042 (2d Cir. 1985).

have come to be located. 42 U.S.C. §§ 9601–75

(2004). CERCLA permits private parties to It is well-settled that both current operators of a

“pursue contribution or indemnification from facility and operators at the time of release are

potentially responsible parties for expenses responsible parties regardless of who caused

incurred responding to environmental threats.” the release of hazardous substances. New

Commander Oil Corp. v. Barlo Equip. Corp., York v. Nat'l Servs. Indus. Inc., 352 F.3d

215 F.3d 321, 326 (2d Cir. 2000) (citation 682, 684 (2d Cir. 2003); Shore Realty, 759

omitted); 42 U.S.C. § 9607(a)(4)(B). An F.2d at 1044. The term “operator” in the

“innocent” party may seek indemnification for case of a facility means: “any person who ...

full recovery of costs under § 9607(a)(4)(B). operated, or otherwise controlled activities

Bedford Affiliates v. Sills, 156 F.3d 416, 424 at such facility immediately beforehand.” 42

(2d Cir. 1998). U.S.C. § 9601(20)(A). Under CERCLA, “any

person who operates a polluting facility is

*6 A party is potentially responsible under directly liable for the costs of cleaning up

CERCLA for costs associated with a toxic spill the pollution.” U.S. v. Bestfoods, 524 U.S.

at a site, if: (1) the site is a “facility;” (2) a 51, 65, 118 S.Ct. 1876, 1886, 141 L.Ed.2d

release or threatened release of a “hazardous 43 (1998). “This is so regardless of whether

substance” from the site has occurred; (3) the that person is the facility’s owner, the owner’s

release or threatened release has caused the parent corporation or business partner, or even

plaintiff to incur response costs; and (4) the a saboteur who sneaks into the facility at night

defendant falls within at least one of the four to discharge its poisons out of malice.” Id.

classes of responsible persons described in § (citation omitted).

9607(a) of CERCLA. 42 U.S.C. § 9607(a); U.S.

v. Alcan Aluminum Corp., 315 F.3d 179, 18 For purposes of CERCLA, the Supreme Court

(2d Cir. 2003). The four classes of responsible has held that “an operator must manage, direct,

parties are (1) the current owner and operator or conduct operations specifically related to

of the facility; (2) the owner or operator of pollution, that is, operations having to do

waste, or decisions about compliance with is not bound by the findings of an advisory jury

environmental regulations.” Id. In its decision and must make its own findings of fact and

in the present case, the Second Circuit conclusions of law. As to the CERCLA causes

specifically noted that, “[a]ccording to this of action, the jury verdict was advisory.

case law, an ‘operator is simply someone who

directs the workings of, manages, or conducts *7 The Court did advise counsel that the

the affairs of a facility.’ BestFoods, 524 U.S. at CERCLA verdict would be advisory:

66, 118 S.Ct. 1876. This has been interpreted

broadly. As stated above, a person may be an Also, as I told you previously, and I think

‘operator’ ‘regardless of whether that person I put in my written opinion, the CERCLA

is ... even a saboteur who sneaks into the cause of action is going to be an advisory to

facility at night to discharge its poisons out of the jury, unless you want to consent to have a

malice.’ Id. at 65, 118 S.Ct. 1876.” AMW, 187 jury verdict. You can consent to do anything,

Fed.Appx. 24. mostly.

If you want to consent to have a jury

The actions of a Government entity at a site

trial finality, fine. Otherwise, it will be an

may give rise to operator liability. “CERCLA

advisory verdict.

expressly includes municipalities, states, and

other political subdivisions within its definition

There was no such consent and therefore, the

of persons who can incur such liability under

jury verdict as to CERCLA was advisory.

§ 9607.” Murtha, 958 F.2d at 1198. State

and local governments are held to the strict

However, as previously stated, “it would be

liability standard in the same manner as any

purposeless to have an advisory jury unless

other potentially responsible party. However,

some deference was shown to its opinions.”

relevant to this case, if the Government has

Felker, 899 F.Supp. at 888-89. As such, the

acquired ownership or control of the facility

Court gives some deference to the jury’s

involuntarily, as a result of its sovereign

verdict, but makes its own independent findings

function, or the entity was responding to

of fact and conclusions of law.

an emergency caused by the release of

hazardous substances from a facility owned by

Initially, the Court notes that the jury’s verdict

another party, the State or local government

on the First Federal CERCLA cause of

is only liable for gross negligence or willful

action regarding NAFC is contrary to the

misconduct. 42 U.S.C. § 9607(d)(2); see

overwhelming weight of the evidence and, also

Murtha, 958 F.2d at 1198.

is inconsistent, as will be discussed later in this

opinion.

1. As To the Advisory Verdict

As to the first CERCLA cause of action, the

On March 28, 2007, the jury reached a

first question and answer in the verdict sheet is

unanimous verdict in favor of the Defendants

as follows:

1. Did the defendants prove that YES _________ No X

the defendant North Amityville Fire

Company was taking action “in response If your answer to question 2 is “YES,”

to an emergency created by the release you have found a verdict in favor of

or threatened release of a hazardous the plaintiffs AMW Materials Testing and

substance”? Anthony Antoniou against the defendant

North Amityville Fire Company in the First

YES _________ No X Federal CERCLA cause of action. In that

event, please proceed to question 5.

If your answer to question 1 is “YES,” please

answer question 2. If your answer to question 2 is “NO,” you

have found a verdict in favor of the defendant

If your answer to question 1 is “NO,” you North Amityville Fire District in the first

have found a verdict in favor of the defendant CERCLA cause of action. Please proceed to

North Amityville Fire District in the first question 3.

Federal CERCLA cause of action. Please

proceed to question 3. In response to question 2, not answered by

the jury, the Court finds that the Plaintiffs

Notwithstanding the overwhelming evidence failed to prove that the NAFC acted with

that NAFC did act “in response to an gross negligence or intentional misconduct. As

emergency created by the release or threatened will be discussed later in this opinion, the

release of a hazardous substance,” as will be evidence at trial revealed that NAFC acted in

set forth later in this opinion, the jury answered accordance with accepted practice in fighting

“NO” to this question. Having answered “NO” this dangerous fire which involved the release

to this first question, in accordance with the of hazardous substances. Therefore, the Court

instructions, the jury did not answer question finds that the Plaintiffs cannot prevail on

2 and, instead, proceeded to question 3. In the the First Federal CERCLA cause of action,

Court’s view, the answer to question 1 should notwithstanding the jury’s clearly erroneous

have been “Yes” and then, according to the advisory answer as to question 1 in the verdict

clear instructions, question 2 should have been sheet.

answered.

*8 The inconsistency of the verdict as to

Question 2 of the verdict sheet as to the First question 1 became apparent in the jury’s

Federal CERCLA cause of action with the answer to question 3, as to the Second Federal

accompanying instructions reads as follows: CERCLA cause of action. Question 3 and its

accompanying instructions reads as follows:

2. Did the plaintiffs prove that in its actions at

the scene of the fire, the defendant North 3. Did the plaintiffs prove that some time

Amityville Fire Company acted with gross during its presence at the scene of the

negligence or intentional misconduct? fire, the defendant North Amityville Fire

response to an emergency created by 4 and the instructions for the question reads as

the release or threatened release of a follows:

hazardous substance”?

4. Did the plaintiffs prove that the defendant

YES _________ No X North Amityville Fire Company was an

“operator” of the AMW Materials Testing

If your answer to question 3 is “YES,” please Facility, as the Court defined that term for

answer question 4. you?

If your answer to question 3 is “NO,” YES _________ No X

you have found a verdict in favor of the

defendant North Amityville Fire Company If your answer to question 4 is “YES,”

in the Second CERCLA cause of action. you have found a verdict in favor of the

Please proceed to question 5. plaintiffs and against the defendant North

Amityville Fire Company in the Second

This question inquired as to whether the Federal CERCLA cause of action. Please

Plaintiffs proved that at “some time during its proceed to question 5.

presence at the scene of the fire, the defendant

North Amityville Fire Company was not taking If your answer to question 4 is “NO,”

action ‘in response to an emergency created by you have found a verdict in favor of the

the release or threatened release of a hazardous defendant North Amityville Fire Company

substance.’ ” The jury answered “NO,” to this in the Second Federal CERCLA cause of

question. As such, on the one hand, in its action. Please proceed to question 5.

answer to question 1, the jury found that the

NAFC was not taking action in response to However, as a result of the Court’s prior

the release of a hazardous substance, and in findings, namely, that at all times, the

question 3 the jury found that at all times they Defendant NAFC was taking action “in

were taking such action; a clear inconsistency. response to an emergency created by the release

or threatened release of a hazardous substance,”

In any event, the Court finds, by a the Court need not reach the issue of whether

preponderance of the evidence, that at all times NAFC was an operator.

during its presence at the fire, NAFC was taking

action “in response to an emergency created by Notably, the parties, and especially, the

the release or threatened release of a hazardous Plaintiffs, failed to object to the verdict’s

substance.” Therefore, the Court finds a verdict inconsistency. “It is well established that a party

in favor of the Defendant NAFC on the Second waives its objection to any inconsistency in a

Federal CERCLA cause of action. jury verdict if it fails to object to the verdict

prior to the excusing of the jury.” Kosmynka v.

As a result of their correct “NO” answer to Polaris Indus., 462 F.3d 74, 83 (2d Cir. 2006).

question 3, the jury did not answer question 4 in Specifically, “[a] litigant preserves the issue for

jury is dismissed so that the court has available acting in response to such an emergency. The

to it the option of re-submitting the question to Court further determines that neither NAFC

the jury after some further instruction.” Id. In nor the Town acted grossly negligent or with

the present case, the parties did not object or in intentional misconduct. The Court will now

any way preserve the issue. review the evidence as to these issues.

*9 However, if anyone had objected, the Court

had the option of resubmitting the CERCLA C. As To This Court’s Specific Findings of

questions to the jury with an explanation of Fact Regarding CERCLA

the inconsistency. If anyone had raised this

1. Both Defendants were Responding to

inconsistency, the Court would have done so.

an Emergency Created by the Release or

The inconsistency was raised for the first time,

Threatened Release of Hazardous Materials

in post-trial motions, long after discharge of

The Court finds that NAFC and the Town

the jury. The Plaintiffs “waived this argument

were responding to an emergency created by

by failing to raise it before the jury was

the release or threatened release of hazardous

dismissed.” Litras v. Long Island Railroad, 226

materials. According to the testimony at trial,

Fed.Appx. 31, 33 (2d Cir. 2007).

in the paint room there were three steel cabinets

with 40, 50 and 94, gallons of paint in each

As a result, the Plaintiffs waived any objections

cabinet. A tank on the premises had a 1,200

to these apparent inconsistencies by failing to

gallon capacity with 20% chromic acid and

object at the time that the verdict was rendered

there were six additional tanks containing

so that the issues could be resubmitted to the

chromic acid, sulfuric acid and alodine. There

jury. However, because the jury verdict was

were 27 tanks on the premises, each with a

advisory on the CERCLA issues, the Court is

capacity of 270 gallons. These tanks were filled

now making its own findings.

with chemicals that were on the property at

time of the fire. Moreover, the fire started in

As discussed above, if NAFC was in

the paint room. Anthony Antoniou told the fire

fact responding to an emergency created

marshal that the fire started in the paint room

by the release or threatened release of a

with the chemical MEK. In addition, the facility

hazardous substance, then the jury should

contained chemicals labeled “Inflammable”

have determined whether NAFC acted with

and “Acids”. (Trial Transcript (“Tr.”) at 70-71,

gross negligence or intentional misconduct.

113-14, 118, 162, 172, 149).

Although the jury failed to properly make this

finding with regard to NAFC, with regard to

In a letter to AMW from the New York State

the Town, the jury properly and consistently

DEC, dated October 18, 2000, it was stated:

found that the Town was responding to such an

emergency and did not act grossly negligent or

Dear Mr. Antoniou,

with intentional misconduct. The Court concurs

with the jury’s determination regarding the

On October 9, 2000 representatives of this the time of the fire which occurred on October

office, Suffolk County Department of Health 9, 2000 (Pl. Ex. 9). (Tr. at 182). The list of

Services, Suffolk County Department of chemicals was comprised of three pages and

Public Works and the Town of Babylon listed the following chemicals on the AMW

Fire Marshal responded to a structure fire at premises at the time of the fire:

the above referenced site. Upon inspection

of the site, it was determined that the fire Page One (Pls. Ex. 9)

control water had been contaminated with Working Anodizing Tanks

various chemicals used in your building

including, but not limited to, Chromic Acid, Chromic Acid Tank

Nitric Acid, Methyl Ethyl Keton (MEK), and

1000 gallons

Perchlorethene.

Total 12 oz/gal Chromium most in

As a result, numerous storm drains on

trivalent state - high anode to cathode ratio

Albany Avenue and New Highway were

impacted by this release as well as a

Sulfuric Acid Anodize 1000 gallons

Suffolk County Recharge Basin located at

the southwest corner of New Highway and 20% W/W Sulfuric Acid

Albany Avenue.

Alodine Anodize 1200S

*10 Your contractor Allied All City has

commenced a clean-up of the area by the 1000 gallons <2% Chromium

removal of contaminated water from the

250 gallon non-etch cleaner 6 oz/gal

impacted storm drains, power washing of

Sodium Silicate Oakite 164

the roadway parking lots and sediment

sampling.

250 gallon aluminum etch 4 oz/gal

Sodium Hydroxide Oakite 160

Demolition and removal of building debris

must commence as soon as possible to

250 gal Desmut 5% Nitric Acid Lnc Deox

allow the collection, characterization and the

proper disposal of any remaining chemicals 250 gal black dye 5% Nickel Acetate

at the site. As agreed, all porous materials

will be classified as hazardous waste and will 250 gal sealer 2 ox/gal Sodium Chromate

be handled appropriately. All other materials

(i.e. structural steel, concrete, etc.) will be Remaining tank-rinse & Counte Rinses

inspected and if necessary washed prior to through Ion Exchange

disposal.

Ion Exchange

(Tr. at 180). In addition, on October 24, 2000,

10 cu/ft Cation Resin

Antoniou wrote a letter to the New York State

20 cu/ft Anion Weak & Strong Base Resin PH 4 Buffer

Page Two

PH 7 Buffer

MEK 140 gallons

PH 10 Buffer

Water primer 50 gal

AA STDS Metals 30 ML 1000PPM

10-11 Primer 60 gal

Waste Oil 3 55 gal drums

High Solids Primer 30 gal

Zyglo-Bentinite Waste 35 gal

Topcoats 75 gal

Page Three

Paint Thinners 15 gal

Chemical Inventory

Waste Paint 85 gal

Sodium Chromate - 50 lbs

For Future Use - Not Constructed

Ammonium Fluoride - 25 lbs

Cadmium Anodes 1100 lbs in boxes, 2

Chromic Acid - 50 lbs

skid

Sodium Benzoate - 50 lbs

Laboratory

Boric Acid - 100 lbs

Normal Reagents of low normality for

analytical purposes Aluminum Sulfate - 200 lbs

1.N NaOH Oakite 164 100 lbs

1.N HCI Oakite 160 - 100 lbs

10% ICG LNC < 50 gal

.5 N NaThiosulfate Sulfuric Acid Conc 30 gal

0.5 N Iodine Nitric Acid Reagent - 20 gal

Testing Dept

Penetrant (Mag) ZL67 30 GAL

Sherwin RC 77 10 gal

ER 83 5 gal

ER 85 10 gal

Dry Developer 30 lbs

common fire hazards are ... Improper storage

Steel Mag Test of flammable and/or combustible liquids.” A

waste removal reporting form from the Suffolk

MX Carrier (Kerosene) 100 gal - County Department of Public Works dated

petroleum product March 12, 2001 listed substantial amounts

of “hazardous waste” and “hazardous soil”

Perc - 40 gal in degreaser no inventory

that were removed from the AMW facility.

(Pls. Ex. 25). In addition, on December 6,

Mil-Spec Aircraft Stripper - 15 gallons

2001 the Suffolk County, Office of Pollution

150 gallons Alkaline Etch Sodium Control listed the AMW facility as “all tanks

Hydroxide 4 oz/gal removed” including industrial waste, chromic

acid, sulfuric acid and alodine. (Pls. Ex. 26).

150 gallons Desmut LNC

*11 One of the processes used in the

There is no doubt that some of the chemicals AMW facility was called a “degreaser” which

used at the AMW facility were hazardous. (See involved a chemical called Perchloroethylene,

Pls. Ex. 10C - Methyl Ethyl Ketone (MEK) a very dangerous solvent. According to the trial

“is hazardous as defined in 29 CFR 1910.1200. testimony:

OSHA hazard - flammable”). Moreover, the

Town of Babylon issued a Fire Prevention Q Now, that degreaser, that was a

Division Permit to AMW on June 15, 1995 (Pls. process that – a chemical called

Ex. 18) in which it is stated: Perchloroethylene?

* * * *

authority is hereby given

BY MR. SHAHAN:

and this permit is

granted for Flammable and/ Q Perchloroethylene was a very dangerous

or Combustible Liquids; solvent. Is that correct?

hazardous chemicals; ovens;

spraying operations. A That’s correct.

Q In fact, that was probably the most

poisonous thing you had on the premises?

On May 15, 1995, the Town of Babylon

wrote to AMW as to renewal of its permit

A Yes.

“for flammable and/or combustible liquids,

hazardous chemicals, spraying operations, Q And the MSDS sheet for that indicates that

ovens.” (Pls. Ex. 24(b)-(1) ). The letter it can cause death. Correct?

went on to state that “some of the most

A I'd have to look at it. Alodine Anodize 1200S

Q Do you have that MSDS there? 1000 gallons < 2% Chromium

A Yes, I do. 250 gallon non-etch cleaner 6 oz/gal Sodium

Silicate Oakite 164

Q And does that MSDS sheet, in fact, say that

Perchloroethylene can cause death? 250 gallon aluminum etch 4 oz/gal Sodium

Hydroxide Oakite 160

A It says cause unconsciousness and death,

yes. 250 gal Desmut 5% Nitric Acid LNC Deox

There is no doubt that fighting the fire at the 250 gal Black Dye 5% Nickel Acetate

AMW facility on October 9, 2000 subjected the

firefighters to more peril and even risk of death 250 gal Sealer 2 ox/gal Sodium Chromate

than a fire without these hazardous materials.

Remaining tan-rinse & Counte Rinses

through ION exchange

Moreover, after the fire, a letter to the New York

DEC, dated October 24, 2000, from AMW,

ION Exchange

enclosed “a list of all chemicals stored at

the above address at the time of the fire on 10 cu/ft Cation Resin

10/9/00.” (Pls. Ex. 9). The list, as stated below,

included hazardous substances: 20 cu/ft Anion weak & strong Base Resin

Working Anodizing Tanks Military Paint

Chromic Acid Tank MEK 140 GALLONS

1000 gallons Water Primer 50 gal

Total 12pz/gal Chromium most in trivalent 10-11 Primer 60 gal

state

High Solids Primer 30 gal

- High Anode to Cathode ratio

Topcoats 75 gal

Sulfuric Acid/Boric Acid 1000 gallons

Paint thinners 15 gal

8% Sulfuric Acid - 40 G/L Boric Acid

Waste Paint 85 gal

Sulfuric Acid Anodize 1000 gallons

For Future Use - Not Constructed

20% W/W Sulfuric Acid Cadmium Anodes 1100 lbs in boxes, 1 skid

Laboratory

Normal Reagents of Low Normality for Chemical Inventory

Analytical Purposes

Sodium Chromate - 50 lbs

1.N NaOH

Ammonium Fluoride - 25 lbs

1.N HCI

Chromic Acid - 50 lbs

10% ICF

Sodium Benzgate - 50 lbs

.5N NaThiosulfate

Boric Acid - 100 lbs

0.5N Iodine

Aluminum Sulfate - 200 lbs

PH 4 Buffer

Oakite 164 - 100 lbs

PH 7 Buffer

Oakite 160 - 100 lbs

PH 10 Buffer

LNC < 50 gal

AA Stds Metals 30 ML 1000PPM

Sulfuric Acid Conc 30 gal

Waste Oil 3 55 gal drums

Nitric Acid Reagent - 20 gal

Zyglo-Bentinite Waste 35 gal

Testing Dept

Penetrant (Mag) ZL67 30 gal

Sherwin RC 77 10 gal

ER 83 5 gal

ER 85 10 gal

Dry Developer 30 lbs

Steel Mag Test 150 gallons Desmut LNC

MX Carrier (Kerosene) 100 gal In fact, the Plaintiff Anthony Antoniou

conceded that AMW worked with flammable

PERC - 40 gal in degreaser no inventory substances, even though he didn't always

acknowledge this in his permit applications.

Mil-Spec Aircraft Stripper - 15 gallons

Q And number 17, flammable finishes,

150 gallons Alkaline Etch Sodium

were you applying flammable finishes to

Hydroxide 4 oz/gal

A I'm not sure what that means. “highest level of hazard with respect to

flammables were in that building.” In addition,

Q You were applying paint to products,

the firefighters treated the fire as a “hazardous

correct?

material incident.” A Chief of the NAFC

testified that “the intensity of this fire was the

*12 A Yes.

hottest fire I ever been in my life.” (Tr. at 754,

Q And some of those patients were 893,1234).

flammable?

Patrick Enochs, the owner of Chemical

A Yes. Pollution Resources, the company that was

retained by the repair company hired by AMW,

(Tr. at 260).

reported to the scene of the fire on the night of

the fire. His job was to clean the contaminated

Q The MEK is a substance that is extremely

water emanating from the fire. He testified as to

prone to ignition by static electricity; is it

the chemicals appearing in the lab results (Pls.

not?

Ex. 41), which clearly contained hazardous

A I believe so. substances including MEK, acetone, stylene

(paint remover) and other chemicals, including

Q And, in fact, you believe that’s how this a release of petroleum. Enochs also described

fire started, correct? in detail his efforts to remediate the area

with regard to the chemicals, including the

A I believe so. hazardous substances. In addition, he testified

that the water run-off from the fire contained

(Tr. at 291).

“contamination.” (Tr. at 1731-32). Also in

evidence was a Suffolk County Department of

Q Now, we talked a little bit about the MEK,

Public Works document (Pls. Ex. 25) which

and that’s a highly flammable substance.

listed 25 hazardous debris and hazardous waste

Correct?

water removed from the scene of the fire at

A Yes. AMW.

(Tr. at 304). In addition, Town of Babylon Nick Acampora of the New York State

Fire Marshal Anthony Calabro testified that Department of Environmental Conservation

the AMW Fire Prevention Permit application, also was present at the scene of the

dated January 15, 2000 contains a list fire. He routinely responds to hazardous

of hazardous chemicals, flammables and waste spills. His role at the fire was to

combustibles. (Tr. at 709). address the contamination. Walter Parrish was

another DEC official who testified. He stated

The Court notes that the Alarm Detail Dispatch that the DEC “reasonably documented the

for the fire (Pls. Ex. 27) contains the words, remediation actions at the AMW facility.”

a determination that hazardous material had A At least in part.

been released into the environment at the AMW

(Tr. at 2769).

facility.

Q Did the DEC make a determination that John Norman III is a retired Deputy Assistant

hazardous materials had been released Chief in the New York City Fire Department.

into the environment at the AMW facility? He was called as an expert witness by

the Defendants. He is also an instructor

A Yes. in hazardous materials. Norman was of the

opinion that there was a release of hazardous

Q And what was that determination? materials in the fire and it could not be

prevented by the firefighters. In his opinion, the

A Well, based upon the inventory that we

destruction of the building by the fire caused

were given, either at the time of the fire

the release of the hazardous materials. And that

or right after it, there were a number of

the use of the pay loader by the firefighters

hazardous materials that were stored on-

occurred “well after hazardous materials were

site and used on-site. The fire destroyed

released.” “The release was going to occur,

the building and the material was released.

regardless of what happened here.” This fire

became a “hazardous materials incident.” (Tr.

(Tr. at 1878-79).

at 2922, 2928-29, 2936, 2947).

The Plaintiffs' firefighting expert, John Turley,

Also, it was the opinion of Norman that the

testified that in the fire of October 9, 2000,

actions of AMW were a substantial cause of the

at the AMW facility, there was a release

release of hazardous materials.

of hazardous materials and chemicals into

the environment. (Tr. at 2341). So did,

Q Do you have an opinion to within

the Defendants' expert, Andrew Barber, an

a reasonable degree of certainty as to

environmental consultant, who also testified

whether those actions by AMW were

that there was a hazardous material release at

a substantial cause of the release of

the fire at AMW:

hazardous materials?

*13 Q Thank you. By the way, there is no

A I do.

– you don't have any doubt that there was

a hazardous material release at this site, MR. LUSTBERG: Objection.

correct?

THE COURT: Overruled.

A No.

A I do, sir. Yes.

Q And that the source of that release was, in

fact, fire water, at least in part? Q What is that opinion?

A The fire and the resulting destruction of the Gross negligence is defined in the statute as

building played a large role in releasing reckless, willful or wanton misconduct.

hazardous materials. If the fire doesn't

start, the Hazmats stay in their containers. Reckless is characterized by the creation of

If the building isn't destroyed in the fire, substantial and unjustifiable risk of harm to

the Hazmats stay in their containers. others and by a conscious and deliberate

disregard or indifference to that risk; to act in

(Tr. at 2959). a heedless or rash manner. Reckless conduct

is much more than mere negligence; it is

Clearly the evidence revealed that the Plaintiffs a gross deviation from what a reasonable

failed to prove that there was any time, at the person would do.

scene of the fire, that the North Amityville Fire

Company or the Town were not taking action Willful means a voluntary and intentional

“in response to an emergency created by the act.

release or threatened release of a hazardous

*14 Wanton misconduct means to act

substance.” The AMW facility was loaded

unreasonably or maliciously while being

with inflammable substances and hazardous

utterly indifferent to the consequences.

materials. From the very inception of the

fire, caused by the inflammable substances,

A review of the record reveals that, clearly,

the threatened release and release of these

there was no intentional misconduct or gross

substances was a hazard, even before the North

negligence on the part of the NAFC. In this

Amityville Fire Company arrived at the scene.

regard the Court accepts the testimony of

former New York City Fire Department Deputy

As such, the Court finds that NAFC and the

Chief John Norman III that the loss of the

Town were acting in response to “an emergency

building was inevitable; that nothing the North

caused by the release or threatened release of

Amityville Fire Company could do would

a hazardous substance.” (See Verdict Sheet,

save the building; that the actions of Chief

Question 1). As a result, the Court must decide

Tutt and the North Amityville Fire Company

whether the NAFC or the Town acted with

conformed to industry standards; that the attack

gross negligence or intentional misconduct.

methods exercised by the North Amityville Fire

(See Verdict Sheet, Question 2).

Company, including the use of the deck gun and

the pay loader, were within industry standards;

2. As to the Liability of the NAFC and that the action of the North Amityville

for Gross Negligence or Intentional Fire Company did not cause or contribute to

Misconduct the release of the hazardous materials. Norman

In its charge, the Court defined the term “gross testified at length and with specificity about

negligence,” as follows: all of the activities of the North Amityville

Fire Company, and that they were all within

firefighting industry standards. In particular, as

that after the incident became a hazardous Anthony Antoniou against the defendant

material incident, it was handled appropriately North Amityville Fire Company in the First

by the North Amityville Fire Company. (Tr. at Federal CERCLA cause of action. In that

2956-2957). event, please proceed to question 5.

As such, the Court finds that the NAFC did If your answer to question 2 is “NO,” you

not act with gross negligence or intentional have found a verdict in favor of the defendant

misconduct. Therefore, the following are the North Amityville Fire District in the first

Court’s responses to the relevant questions on CERCLA cause of action. Please proceed to

the verdict sheet: question 3.

As to the First Federal CERCLA cause of As to the Second Federal CERCLA cause of

action: action:

1. Did the defendants prove that 3. Did the plaintiffs prove that some time

the defendant North Amityville Fire during its presence at the scene of the

Company was taking action “in response fire, the defendant North Amityville Fire

to an emergency created by the release Company was not taking action “in

or threatened release of a hazardous response to an emergency created by

substance”? the release or threatened release of a

hazardous substance”?

YES X No _____

If your answer to question 1 is “YES,” please

answer question 2. If your answer to question 3 is “YES,” please

answer question 4.

If your answer to question 1 is “NO,” you

have found a verdict in favor of the defendant If your answer to question 3 is “NO,”

North Amityville Fire District in the first you have found a verdict in favor of the

Federal CERCLA cause of action. Please defendant North Amityville Fire Company

proceed to question 3. in the Second CERCLA cause of action.

Please proceed to question 5.

2. Did the plaintiffs prove that in its actions at

the scene of the fire, the defendant North *15 Based on its determinations that NAFC

Amityville Fire Company acted with gross was responding to an emergency caused

negligence or intentional misconduct? by the release or threatened release of

hazardous substances and did not act with

YES X No _____ gross negligence or intentional misconduct, the

Court need not reach the issue of operator

If your answer to question 2 is “YES,” status. Accordingly, the Court finds and directs

you have found a verdict in favor of a judgment in favor of the Defendant North

CERCLA causes of action. is a technician level skill.

Q What other functions did he perform at the

3. As to the Town’s CERCLA Liability fire based upon the testimony?

As to both of the Federal CERCLA causes of

action against the Town, the evidence supports A He acted as the liaison with

the advisory jury verdict as to the Defendant the Department of Environmental

Town of Babylon. As previously stated, it is Conservation, and with the Department of

clear that both Defendants were responding Health. And also monitored the air around

to an emergency created by the release or the environment, particularly the runoff

threatened release of hazardous chemicals. water, again, a technician level skill.

Moreover, it is also evident that the Town did

(Tr. at 2957).

not act with gross negligence or intentional

misconduct.

In this regard, the Court again accepts the a. As to the First CERCLA Cause

testimony of former New York City Deputy of Action against the Town

Assistant Chief John Norman III, with regard

to the actions of the Defendant Town of This advisory jury verdict, as to the defendant

Babylon. His testimony was clear, unequivocal Town of Babylon, concurred in by the Court,

and convincing. For example, as to the handling reads as follows:

of the hazardous material by the Town official

5. Did the defendants prove that the

on the scene, he testified to the following:

defendant Town of Babylon was taking

Q Do you have an opinion to within a action “in response to an emergency

reasonable degree of certainty whether created by the release or threatened release

after this incident became a hazardous of a hazardous substance”?

materials incident, it was handled

YES X No _____

appropriately by the Town of Babylon.

If your answer to question 5 is “YES,” please

MR. LUSTBERG: Objection, your Honor.

answer question 6.

THE COURT: Overruled.

If your answer to question 5 is “NO,” you

A Yes, sir. I believe that the Town of have found a verdict in favor of the defendant

Babylon, particularly the fire marshals North Amityville Fire District in the first

office, performed to the level that they Federal CERCLA cause of action. Please

were trained to, they were technicians, proceed to question 7.

he was a technician, hazardous materials

6. Did the plaintiffs prove that in its actions

technician and he performed functions

at the scene of the fire, the defendant Town

intentional misconduct? judgment in favor of the Defendant Town of

Babylon on both of the Federal CERCLA

YES X No _____ causes of action.

If your answer to question 6 is “YES,”

If the Defendants had not been responding

you have found a verdict in favor of

to an emergency, then the jury would have

the plaintiffs AMW Materials Testing and

had to determine whether the Defendants

Anthony Antoniou against the defendant

were operators. As the Court finds that the

Town of Babylon in the first Federal

Defendants were acting in response to an

CERCLA cause of action. In that event,

emergency and were not grossly negligent, the

please proceed to the instructions preceding

Court need not reach the issue of whether

question 9.

the Defendants were operators of the AMW

facility.

If your answer to question 6 is “NO,” you

have found a verdict in favor of the defendant

Accordingly, the Court finds that both

Town of Babylon in the first CERCLA cause

Defendants were responding to an emergency

of action. Please proceed to question 7.

and did not act grossly negligent or with

intentional misconduct. As such, the Court

finds in favor of the Defendants on the

b. As to the Second CERCLA CERCLA causes of action. The Plaintiffs'

cause of action against the Town motions as to CERCLA are denied and

judgment is directed to be entered in favor

*16 7. Did the plaintiffs prove that some

of both Defendants dismissing all the Federal

time during its presence at the scene of

CERCLA causes of action.

the fire, the defendant Town of Babylon

was not taking action “in response to

an emergency created by the release D. As To The Plaintiffs' New York

or threatened release of a hazardous Navigation Law Claims

substance”? The Plaintiffs contend that they are entitled

to a new trial or judgment as a matter of

YES X No _____

law on their Navigation Law claims because,

on summation, defense counsel relied upon

If your answer to question 7 is “YES,” please

three documents that were not in evidence

answer question 8.

at the trial. The Plaintiffs claim that defense

If your answer to question 7 is “NO,” you counsel said that he erroneously relied on

have found a verdict in favor of the defendant those documents because they were attached

town of Babylon in the second Federal to an exhibit from the prior trial of this case.

CERCLA cause of action. Please proceed to Although the Plaintiffs acknowledge that the

the instructions preceding question 9. Court gave the jury a curative charge regarding

Plaintiffs. I said, this was inadvertent

because counsel believed

The Court gave the jury the following curative that they were. They had

charge: been attached to a different

copy of the exhibit, but

not the one that went into

During the summation, evidence. You're to disregard

counsel for the defendant, the statements with regard

Stephen Shahan, to those three pages of

inadvertently believed that plaintiff’s 45 because of

three pages in plaintiff’s the fact they were not in

exhibit 45 were in evidence evidence.

but they apparently–not

apparently–they were not in

evidence. And these pages *17 (Tr. at 3630-31). The Court finds that this

in which he showed you a charge was proper and there is no evidence that

blowup, which I'm going to the Plaintiffs were prejudiced.

give you a quick look at, of

a uniform hazardous waste Moreover, the Plaintiffs failed to object to the

manifest dated December 28, curative charge at the time or immediately

2000, and he stated to you thereafter. As a result, the Plaintiffs waived

in his summation that these any such objection. SCS Communs., Inc. v.

manifests demonstrated that Herrick Co., 360 F.3d 329, 343 (2d Cir. 2004)

petroleum product had not (“Under Fed. R. Civ. P. 51, ‘[a] party who fails

been spilled or released to object to a jury instruction at trial waives

and argued based on these the right to make that instruction the basis for

three pages, among other an appeal’ ”) (internal citations omitted); Local

things. He argued based Union No. 38, Sheet Metal Workers' Int'l Ass'n

on these three pages that v. Pelella, 350 F.3d 73, 87 (2d Cir. 2003) (“A

petroleum had not been party that ‘fails to object to a jury instruction

released. I'm telling you at trial waives the right to make that instruction

now, those three pages were the basis for an appeal’ ”) (internal citations

never admitted in evidence omitted); Wright v. Wilburn, 194 F.R.D. 54, 58

and they're not before you. (N.D.N.Y. 2000) (“failure to object to a jury

They should be disregarded. instruction or the form of an interrogatory prior

And his statement to you to the jury retiring results in a waiver of that

about the meaning of objection”).

these three pages with

regard to petroleum release

judgment as a matter of law and a new trial on N.Y.3d 186, 810 N.E.2d 393, 778 N.Y.S.2d 111

the Navigation Law claim are denied. (2004), including the Cuffy test. In particular,

in its prior decision, the Second Circuit noted:

E. As To The Plaintiffs' Negligence Claims The standard for determining whether

The Plaintiffs contend that judgment as a a municipality has a duty during the

matter of law is appropriate on their negligence administration of emergency services has

claims because a special relationship existed by been summarized as follows: “If conduct has

virtue of the Defendants' actions. The Plaintiffs gone forward to such a stage that inaction

contend that the test set forth in Cuffy v City would commonly result, not negatively

of New York, 69 N.Y.2d 255, 505 N.E.2d 937, merely in withholding a benefit, but

513 N.Y.S.2d 372 (1987), is inapplicable to the positively or actively in working an injury,

facts of the present case. In support of their there exists a relation out of which arises

contentions they claim that “in the first trial, a duty to go forward.” ... This duty may

the jury would have found for plaintiffs on the arise in three different ways: (1) when

negligence cause of action.” the municipality violates a statutory duty

enacted for the benefit of a particular class

As previously stated, in the first trial, the of persons of which the plaintiff is one;

jury was unable to reach a verdict and (2) when it voluntarily assumes a duty that

the case resulted in a disagreement. The generates justifiable reliance; (3) when the

hypothetical conclusions by the Plaintiffs' municipality assumes positive direction and

counsel that the first jury “would have” control in the face of known, blatant, and

made certain determinations are completely dangerous safety violations. Pelaez v. Seide,

irrelevant as to the present trial. In fact, the 2 N.Y.3d 186, 199, 810 N.E.2d 393, 778

Court finds that the Plaintiffs' counsel incessant N.Y.S.2d 111 (2004).

reliance, throughout their motion papers, on

a hypothetical verdict which never occurred, *18 AMW, 187 Fed.Appx. 24. In Pelaez, the

is not only not relevant as to the present court specifically cited to the Cuffy test, stating:

trial, but also, in the Court’s view, completely

inappropriate.

Most of our municipal

In addition to their contention that the first jury special relationship cases

“would have” found in their favor, the Plaintiffs have centered on whether

also contend that the Cuffy test is inapplicable a municipality has assumed

in the present case. They contend that the Cuffy an affirmative duty that

test was not set forth by the Second Circuit generated justifiable reliance

in its decision as an appropriate test for use by the plaintiff. We laid out

in the present case. The Court disagrees. As the test in Cuffy v City

the Defendants correctly note in their motion of New York (69 N.Y.2d

255, 505 N.E.2d 937, 513

requires (1) an assumption undertook a duty to the Plaintiffs to protect

by a municipality, through them from damages of the sort complained of

promises or actions, of in this action, and that the duty so assumed

an affirmative duty to act was beyond the general duty to provide fire

on behalf of the injured protection services to the public.”

party; (2) knowledge on

the part of a municipality’s The jury determined that the Defendants did not

agents that inaction could have a special relationship with the Plaintiffs.

lead to harm; (3) some The jury’s decision was based on a reasonable

form of direct contact view of the evidence and a court may not

between the municipality’s grant a judgment as a matter of law unless

agents and the injured “the evidence is such, that without weighing

party; and (4) that party’s the credibility of the witnesses or otherwise

justifiable reliance on the considering the weight of the evidence, there

municipality’s affirmative can be but one conclusion as to the verdict

undertaking (id. at 260, 505 that reasonable [persons] could have reached.”

N.E.2d 937, 513 N.Y.S.2d Cruz, 34 F.3d at 1154-55 (quoting Simblest,

372). 427 F.2d at 4).

As such, the Plaintiffs' motion for judgment

Pelaez, 2 N.Y.3d at 202, 778 N.Y.S.2d 111, as a matter of law on the negligence claims is

810 N.E.2d 393. As a result, the Plaintiffs' denied.

contention that the Second Circuit did not

intend this Court to rely on Cuffy is without

merit. Although the Plaintiffs suggest that this F. As To The Plaintiffs' Remaining Claims

Court “re visit the inapplicability of Cuffy,” On the final page of the Plaintiffs' submission,

other than asserting that the Second Circuit did they contend that this Court should order

not intend its use and that the previous jury a new trial because they were prejudiced

would have found in their favor, the Plaintiffs by the “cumulative impact of misstatements

present no other claims in support of their and knowingly misleading arguments by

argument. defendants.” The Plaintiffs contend, without

a single citation to the trial transcript, that

The Court notes that its instructions to the the Defendants made misleading comments in

jury clearly track the language of Cuffy, as their opening statement and used misleading

set forth in the above-mentioned Pelaez case. lines of questioning. However, the Plaintiffs

In addition, this Court properly instructed unsupported contentions, without any evidence

the jury that, in order to find that a special cited from the trial transcript, are insufficient

relationship existed, the jury had to find that to justify the grant of a new trial. This Court

the Town or NAFC “through direct promises is not “convinced that the jury has reached a

s me ir sio cau rs rl iy a ge err oo fn je uo su tis c r ee .s ”u Tlt e o ssr e t rh ,a 3t 7th 0e F v .3e drd ai tc t 3 i 2s 0 a . ORDERED, that the Plaintiffs' motion for a

new trial is DENIED in its entirety; and it is

further

*19 As such, the Plaintiffs' motion for a new

trial on this ground is denied.

ORDERED, that the Clerk is directed to enter

judgment in favor of the Defendants dismissing

the complaint in its entirety; and it is further

III. CONCLUSION

ORDERED, that the Clerk’s Office is directed

Based on the foregoing, it is hereby

to terminate all pending motions and close this

case.

ORDERED, that judgment is entered in favor

of both Defendants on both of the Federal

SO ORDERED.

CERCLA claims; and it is further

ORDERED, that the Plaintiffs' motion for All Citations

judgment as a matter of law is DENIED in its

entirety; and it is further Slip Copy, 2008 WL 11449231

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.