Salters v. New York City Transit Authority

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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DERWIN SALTERS,

Plaintiff,

MEMORANDUM AND ORDER

-against- 21-CV-04836 (OEM) (JRC)

NEW YORK CITY TRANSIT AUTHORITY,

JEAN L. ANDRE,

Defendants.

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ORELIA E. MERCHANT, United States District Judge:

At the conclusion of a six-day jury trial held from February 10, 2025, to February 18, 2025,

the jury rejected Plaintiff Derwin Salters’ (“Plaintiff”) claims that defendants New York City

Transit Authority (“NYCTA”) and former NYCTA bus driver Jean L. Andre (“Andre”)

(“Defendants”) negligently caused him to sustain personal injuries as a result of a collision

between Plaintiff’s rental car and the NYCTA articulated bus driven by Andre on February 3,

2021, near the intersection of Nostrand Avenue and Kings Highway in Brooklyn, New York. Jury

Verdict Sheet, ECF 70. On February 18, 2025, following the jury’s verdict finding Defendants

not liable, the Court entered a final judgment in favor of Defendants and against Plaintiff.

Judgment, ECF 73.

Before the Court is Plaintiff’s fully briefed motion pursuant to Federal Rule of Civil

Procedure 59(a)(1)(A) seeking an order vacating the Judgment and for a new trial.1 For the

following reasons, Plaintiff’s Motion is denied.

1 Plaintiff Notice of Motion for New Trial (“Pl.’s Motion”), ECF 75; Declaration of Caner Demirayak, ECF 76;

Excerpts of Trial Transcript, ECF 76-1; Memorandum of Law in Support of Plaintiff’s Motion (“Pl.’s MOL”),

ECF 77; Defendants’ Response in Opposition (“Defs.’ Opp.”), ECF 81; Plaintiff’s Reply (“Pl.’s Reply), ECF 82.

RELEVANT BACKGROUND

A. Jury Selection

On the parties’ consent, Magistrate Judge Lara Eshkenazi (“Magistrate Judge”) presided

over jury selection. Transcript of Trial Proceeding (“Tr.”) at 6:4-10, ECF 79. After Defendants

exercised their peremptory challenges on three minority panelists, Plaintiff’s counsel orally raised

a Batson challenge on the basis that Defendants’ counsel “ha[d] chosen to exclude three persons

of black skin color.” Id. at 70:5-73:2. Plaintiff’s counsel provided the name and assigned number

of the three prospective jurors, stating that they are “all of black skin color.” Id. at 73:3-7.

The Magistrate Judge asked Defendants’ counsel if he was “able to provide a race neutral

reason why [he] struck those [three panelists].” Id. at 74:13-15. Defendants’ counsel responded

that he “[h]onestly didn’t even look at the race to know why. I have to go back to my notes.” Id.

at 74:16-18. He then stated that one of the panelists “seemed to be very simply educated, not

knowing if she would fully be able to comprehend all expert testimony,” id. at 74:20-22; another

panelist is a “home health aide” and therefore could have “sympathy toward dealing with

individuals who may be disabled, elderly, things of that nature,” id. at 74:25-75:2; and the other

panelist “just seemed a little out of it, not being able to comprehend all the evidence that was going

to come in” and “[h]e said he’s very philosophical,” Id. at 75:4-9. Defendants’ counsel stated:

“Nothing whatsoever to do with race.” Id. at 75:9

Plaintiff’s counsel responded that “[t]hose explanations are a pretext for racial bias.” Id.

at 75:10-12 (that one of the panelists was out of it and the “analysis as to why it was ok to remove

[the other panelist] is that she’s a simple-minded person”). The Magistrate Judge corrected

Plaintiff’s counsel regarding this mischaracterization of the words used by Defendants’ counsel.

Id. at 7514-16. Plaintiff’s counsel also argued that Plaintiff Salters and Defendant Andre are

“black, same color” but that the “jury is mostly not black” and therefore “this is a complete jury

that violates the Batson rule” and the three stricken panelists “needed to be reinstated and to be put

on the jury.” Id. at 75:17-76:2.

The Magistrate Judge overruled the Batson challenge, stating that she did not believe

Defendants’ counsel struck the jurors because they were black and that he had “articulate[d] race

neutral reasons” for doing so. Id. at 76:3-7. Further, Magistrate Judge noted that “there are two

black members who will still be on the jury.” Id. Plaintiff’s counsel responded that the “jury is

overwhelmingly not black and [he] think[s] that was designed by the defendant on purpose.” Id.

at 76:8-10. Defendants’ counsel took exception with that insinuation, noting his objection, and

the Magistrate Judge completed jury selection. Id. at 76:11-25.

B. Evidence Presented at Trial2

The accident occurred on February 3, 2021, at approximately 1:47 p.m. on Nostrand

Avenue near its intersection with Kings Highway. Nostrand Avenue is a two-way street divided

by an emergency lane, with one lane of travel and one parking lane in each direction. The bus stop

is located on the right side of Nostrand Avenue at the corner with Kings Highway.

During the trial, the jury heard testimony from three fact witnesses (Plaintiff Salters,

Defendant Andre, and NYCTA supervisor Cesario Vasto, Andre’s supervisor at the time of the

accident) and four expert witnesses (Dr. Rick Sides, an independent chiropractor that examined

2 To the extent that Plaintiff’s motion for a new trial is based on his position that the jury’s verdict was against the

weight of the evidence, Plaintiff focuses solely on the issue of liability—whether Defendants were negligent in causing

the accident. As such, for purposes of its analysis on this issue, the Court does not provide a full recitation of the facts

adduced at trial, but instead, focusses on facts adduced at trial on the issue of liability as challenged by Plaintiff.

Salters; Dr. Andrew Cordiale, Salters’ treating spinal surgeon; Brendan McLaughlin, a mechanical

engineer and accident reconstructionist; and Aman Gupta, a biochemical engineer).

1. The Video Recording of the Accident

At trial, the parties played for the jury a video recording that captured the accident, using

the same exhibit – Defendants’ Exhibit A (“DTX A”). The recording was from security cameras

inside the articulated bus. The cameras showed nine angles and viewpoints: inside of the bus from

the front to the back of the bus; an angle focused solely on Andre; the exit doors; the front of the

bus; and others on both sides of the bus. Id. The video showed that Andre’s bus arrived at the bus

stop, but the bus did not pull into the bus stop lane. Id. The sidewalk and bus lane were partially

obstructed by snowbank, but it was not snowing that day. Id. The bus remained in between the

travelling lane and bus stop lane while servicing the bus stop. Id. As passengers were getting in

and out of the bus, the video showed that Plaintiff Salters drove up on the left side of bus in the

emergency lane and stopped mid-way in parallel to the bus, and at one point Plaintiff’s car is barely

visible in the video. Id. The video showed that after servicing the bus stop, Andre proceeded to

slowly drive in a straightforward manner, and that Andre slightly straightened the steering wheel.

Id. As the bus began to move forward, Plaintiff’s car re-appeared in the video where it was at that

point in a diagonal position towards the bus. Id. The video showed that as the rear of the bus

passed Plaintiff’s car, the vehicles collided, with the front bumper of Plaintiff’s car coming off.

Id. The video also showed that the collision made Plaintiff’s car slowly return to a parallel position

vis-à-vis the bus. Id.

2. Salters’ Testimony

Plaintiff Salters testified at trial. As for his recount of the accident, Salters testified that he

drove up next to the stopped bus on the emergency lane, attempting to turn right onto Kings

Highway. However, Plaintiff stopped mid-way and couldn’t turn because the traffic light was

broken and the bus was in his blind spot. See Tr. 87:3-6, ECF 85. He was therefore “waiting for

[the bus] to pull off so [he] could turn.” Id. at 171:22-23. Plaintiff testified that his right foot was

“on the brake” at all times and that he never moved the car before the accident happened. Id. at

126:3-16; 129:8-9. According to Plaintiff, the bus had stopped “5 feet away from the curve [and]

that’s how [Plaintiff] wound up on that side of the bus like that.” Id. at 86:3-16. He also testified

that there was a lot of snow on the sidewalk and on the curb, consistent with the video and Andre’s

testimony. Id. at 85: 15-17. He also testified that there “was enough [space] for me to stay on the

other side of the lane so [the bus] won’t hit me so I won’t be in [the bus’] way.” Id. at 86:24-87-

1.

Plaintiff testified that prior to the accident the left rear-end bumper of the bus was broken

and was “hanging off” like a “hook.” According to Plaintiff, as the bus began moving forward,

the hook “grabbed the front of my bumper on my car, and that’s how the accident [happened].”

Id. at 81:25-82:6; 82:12-83:10. Plaintiff testified that his steering wheel turned when the hook

dragged his car. Id. at 172:19-23. The bumper of the bus “lifted [his car] up, shook [him] around,

and that’s how I hurt my head, my neck, and my elbow, and that’s on the right side of my back

from the seatbelt.” Id. at 83:6-10. In describing how he experienced the collision from inside his

car, Plaintiff testified that “it hit me, like I said, went in the air. It sprung. The shocks of the car

[-] they just make me jump and drag me. I hit my head on the roof. My arm came down on the

arm rest and the side of my back was hit by the belt.” Id. 129:15-18.

After describing the accident, Plaintiff was shown the video of the accident on direct and

cross examination. On direct examination, Plaintiff testified that the video shows that it appears

that “his car ran into the bus” but that the “bus pulled [him] into it” id. at 126:22; that the video

does not show his “car getting dragged by the bus because it doesn’t show the bumper” “hanging

on the back of the bus,” id. at 128:10-18; and that because the video is from the vintage point of

the bus moving forward, it appears that his car is moving but his car wasn’t “moving at all,” id. at

129:4-7.

On cross examination, Plaintiff testified that the video showed that his car drove next to

the bus on the emergency lane and that the wheels were “facing straight forward.” Id. at 223:4-

15. Plaintiff was shown the clips of the video where his car was in a parallel position when it

initially stopped next to the bus and his car in a diagonal position right before the impact. Plaintiff

testified that he disagreed that his car was not in a diagonal position when he first stopped. Id. at

220:2-223:25. When showed the video of his car at a diagonal angle, Plaintiff testified that his car

was already at that angle. Id. at 224:1-4. Plaintiff agreed that the video did not show his car going

up in the air as he had previously testified on direct examination.3 Id. at 232:3-9.

On re-direct, Salters testified that the video “didn’t show a lot of stuff.” Id. at 261:2-5. He

provided the following testimony:

Q. What does the video show as to your vehicle at all times?

A. The video shows that it’s my fault all the way through, man.”

Id. at 265:4-7. Further, Plaintiff responded as follows:

Q. Would you say that your action in putting your vehicle there partially caused the

accident?

A. Yes. Put it like this, I’m going to say it’s the bus’s fault. If I wouldn’t have moved

there, yeah, I’m partially at fault. Common sense, yeah, I shouldn't have been there.

3 During Defendants’ cross-examination of Plaintiff, Plaintiff’s counsel requested a recess. The Court excused the

jury for a break. Outside of the jury’s presence, Plaintiff’s counsel asked to “speak with [the Court] about possibly

resolving this matter” through settlement. Id. at 232:11-233:8. Discussions were held off the record. Id. The trial

resumed thereafter. Id. at 233:11-18.

Id. 270-13-15.

When shown a picture that Plaintiff took after the accident of the left rear end bumper of

the bus, Plaintiff testified the bumper was hanging off prior to the accident. Id. 203:1-16 (Plaintiff

shown Plaintiff’s Exhibit 6, a picture taken by Plaintiff after the accident of the left rear end bumper

of the bus)

3. Andre’s Testimony

Following Salters’ testimony, Andre took the stand the next day, on February 12, 2025.

Andre testified that he had been a bus operator with NYCTA for 19 years at the time of the

accident. Tr. 373:8-10, ECF 86. On the day of the accident, Andre relieved another bus operator

of the articulated bus and began his shift at approximately 10:30 a.m. Id. at 373:16-17. Before he

began operating the bus, Andre testified that he inspected the 60-foot long articulated bus by

walking around it to make sure nothing was loose. He inspected all four bumpers of the bus by

manually kicking it to see if everything was secure. Id. at 319:19-320:20. Andre testified that he

would not have operated the bus if he had seen the bus bumper as shown on PTX 6A during his

inspection. Andre testified that the rear end “bus bumper was not ben[t]. Period. I inspected the

bus.” Id. at 321:1-2.

Andre testified that he did not pull into the bus stop lane that day because of the snowbank

and “the rules state that if a bus stop is blocked or unsafe, the bus operator must ensure that every

passenger, customers, get out of the bus safely. Id. at 324:24-325:5. “That’s the rule” even if the

bus is obstructing traffic. Id.; see id. at 325:7-14. The traffic regulations usually require buses to

be 12 inches (one foot) away from the curb. Id. at 326:12-22. Andre testified that the articulated

bus was “straight” in the traveling lane and was about 4 feet from the curb.

After he serviced the bus stop, Andre testified that he started driving the bus at the speed

of approximately three miles per hour and that Plaintiff’s car was at a complete stop in the

emergency lane. Id. at 322:1-5. Andre testified that although the video shows that his hands turned

the steering wheel, “that was not a turn” but rather that he was “straightening up” the wheels. Id.

at 368:6-7. He testified that he checked the gap between the bus and Salters’ car before proceeding

and noticed that the gap was approximately 3 feet. Id. at 337:13-14. His first indication that he

was involved in a crash was when he saw from scanning his left side mirror Salters’ car close to

the articulation of the bus, which he said was turning right into the bus while he was “pulling

straight, slow, and straightforward.” Id.; 333:3-8.

This was inconsistent with the incident report that Andre completed on the day of the

accident, where Andre wrote that the first time he knew he was in an accident was when he “heard

a cracking noise in the rear of the bus.” Id. at 327:19-22; 330:15-19 (Andre reading from the

incident report). He did not write in the report that he witnessed the crash and he also did not write

that Plaintiff’s car had made a right turn into the rear of the bus. Id. at 331:1-2; 332:23-333:1.

Plaintiff counsel elicited the following testimony on cross examination:

Q. Did you say you were rear-ended by a fast car going too fast because you did

not see the other car before the crash?

A. I called a rear end accident as such.

THE COURT: Sir, the question is: Did you say you were rear ended by a fast car

going too fast because you did not see the other car before the crash.

THE WITNESS: Yes.

Id. at 369:11-17. Andre testified that both could be true: that he saw the accident and heard

a cracking noise. Id. at 334:1.

Andre also provided the following testimony:

Q. The other vehicle is two to 3 feet away, away from yours, you’re pulling out

straight, you don't turn your wheel, you're going 3 miles an hour, he's going a speed

you don't know. And it’s your testimony that this collision happened only because

he turned right into your bus?

A. Yes, positive.

Q. Nothing else had a role in bridging that two to 3 feet gap?

A. To the best of my knowledge, no.

Id. at 337:21-338:4.

Q. Sir, you were present yesterday for Mr. Salters’ testimony?

A. I was here.

Q. And did you hear when he testified that he probably shouldn’t have been where

he stopped his car before the incident. You heard that?

A. I did.

Q. Did you hear where he admitted to the jury that he’s partially responsible for the

accident?

A. I heard it too.

Q. Will you also admit that you’re partially responsible?

A. None.

Id. at 344:9-20.

C. The Parties’ Motions During Trial

During Plaintiff’s case in chief, Plaintiff’s counsel orally moved for a mistrial at the

conclusion of the second day of trial. Tr. 293:12-295-18. The next day, the Court denied that

motion. Tr. 300:9-304:24, ECF 86. Plaintiff’s counsel then immediately moved for recusal of the

undersigned. Id. at 305:7-306:3; 307:11-310:4. The Court denied that motion as well. Id. at 310:9-

311:16.

At the close of evidence in Plaintiff’s case, Defendants moved for directed verdict, and the

Court reserved decision. Tr. 634:10-16, 639:12-13, ECF 87.

D. Jury’s Verdict and Post-Trial

On February 18, 2025, after hearing testimony for six days and deliberating for less than

two hours, the jury reached a verdict in favor of Defendants.

After the jury was discharged, Plaintiff stated that he intended on filing a motion that the

jury’s verdict was against the weight of the evidence under Federal Rules of Civil Procedure 50

and 59. The Court explained to Plaintiff that Rule 50 would not be the proper vehicle for that

motion because Plaintiff had not previously moved for judgment as a matter of law before the case

was submitted to the jury, as required by Rule 50(b), but that the Court would allow Plaintiff to

file any post-trial motions that Plaintiff may be entitled to under the Federal Rules.

After the jury verdict, on the date that the trial concluded, Plaintiff filed a notice of appeal

to the Second Circuit, Notice of Appeal, ECF 74, and on March 18, 2025, Plaintiff filed the instant

motion to vacate the judgment and for a new trial in this Court.

LEGAL STANDARD

Plaintiff’s motion for a new trial invokes Federal Rule of Civil Procedure 59(a)(1)(A).

Under Rule 59(a)(1)(A), a district “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 in law in federal court.” FED. R. CIV. P. 59(a)(1)(A). While the “drafters

of the rules [did not] enumerate all the grounds for a new trial,” 11 Charles Alan Wright & Arthur

R. Miller, Federal Practice and Procedure § 2805 (3d ed. supp. Apr. 2025), courts have

interpreted this standard to permit the granting of new trials when “(1) the verdict is against the

clear weight of the evidence; (2) the trial court was not fair; (3) substantial errors occurred in the

admission or rejection of evidence or the giving or refusal of instructions to the jury; or

(4) damages are excessive,” Welch v. United Parcel Serv., Inc., 871 F. Supp. 2d 164, 174

(E.D.N.Y. 2012). Such a motion “may be granted even if there is substantial evidence supporting

the jury’s verdict.” DLC Mgmt. Corp. v. Town of Hyde Park, 163 F.3d 124, 134 (2d Cir. 1998).

A court that evaluates such a motion is “free to weigh the evidence itself, and need not view it in

the light most favorable to the verdict winner,” but is cautioned to “rarely disturb a jury’s

evaluation of a witness’s credibility” and “should only grant such a motion when the jury’s verdict

is egregious.” Id.

Granting a new trial “is an extraordinary relief.” Welch, 871 F. Supp. 2d at 174. And

rulings on such motions “are committed to the sound discretion of the district court.” Velez v. City

of New York, 730 F.3d 128, 134 (2d Cir. 2013). “The Second Circuit has instructed district courts

to ‘abstain from interfering with [a jury] verdict unless it is quite clear that the jury has reached a

seriously erroneous result’ that would result in ‘a miscarriage of justice.’” Fioto v. Manhattan

Woods Golf Enter., LLC., 304 F. Supp. 2d 541, 545-546 (S.D.N.Y. 2004) (citing Bevevino v.

Saydjari, 574 F.2d 676, 684 (2d Cir. 1978)); Lundstedt v. JP Morgan Chase Bank, N.A., 853 F.

App’x 704, 709 (2d Cir. 2021) (holding that granting new trial “is warranted ‘only if the verdict is

(1) seriously erroneous or (2) a miscarriage of justice”); Kosmynka v. Polaris Indus., Inc., 462 F.3d

74, 82 (2d Cir.2006) (holding that a Rule 59 motion for a new trial “ordinarily should not be

granted, unless the trial court is convinced that the jury has reached a seriously erroneous result or

that the verdict is a miscarriage of justice”). More generally, a “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 of the apple.’” Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144

(2d Cir. 1998).

DISCUSSION

Plaintiff asserts he should be granted a new trial on two grounds: (1) Defendants committed

a Batson violation by exercising peremptory strikes to exclude three black panelists and the

Magistrate Judge erred in overruling his challenge, Pl.’s MOL at 5-6; and (2) the jury’s verdict

was against the weight of the evidence presented at trial, id. at 6-7. Aside from an exhibit

containing excerpts from the trial transcript, see ECF 76-1, Plaintiff has failed to support his

arguments with any citations to particular parts of the trial transcripts in his memorandum of law,

and Plaintiff’s curated excerpts do not provide a complete record of testimony relevant to

Plaintiff’s argument that the jury’s verdict was against the weight of the evidence, leaving the

Court to comb through the entire trial record to find the relevant testimony at issue for

consideration to evaluate Plaintiff’s arguments and the law. Failure of a party moving for new

trial to cite or refer to relevant trial transcript may alone warrant denial of motion for a new trial.

See Hilt Constr. & Mgmt. Corp. v. Permanent Mission of Chad to United Nations in New York,

16-CV-6421 (VB), 2019 WL 5260829, at *2 (S.D.N.Y. Oct. 16, 2019); AMW Materials Testing,

Inc. v. Town of Babylon, 01-CV-4245 (ADS) (ETB), 2008 WL 11449231, at *18 (E.D.N.Y. Mar.

13, 2008) (“[U]nsupported contentions, without any evidence cited from the trial transcript, are

insufficient to justify the grant of a new trial.”). However, in this case, the Court addresses

Plaintiff’s arguments on the merits based on its own review of the record.

A. Plaintiff’s Batson Challenge Does Not Warrant a New Trial

The Batson rule prohibits a party from using its peremptory challenges to exclude potential

jurors solely based on their race. Batson v. Kentucky, 476 U.S. 79, 89 (1986) (holding that the

Equal Protection Clause prohibits challenging jurors solely based on their race); Edmonson v.

Leesville Concrete Co., 500 U.S. 614, 628 (extending Batson’s holding to civil cases). A party

who believes that the other party violated the Batson rule must raise a timely Batson challenge.

To rule on a Batson challenge, a court must engage in a three-part burden-shifting analysis.

Messiah v. Duncan, 435 F.3d 186, 194 (2d Cir. 2006).

To establish a Batson violation, “[f]irst, a [movant] must make a prima facie showing that

a peremptory challenge has been exercised on the basis of race; second, if that showing has been

made, the [proponent] must offer a race-neutral basis for striking the juror in question; and third,

in light of the parties’ submissions, the trial court must determine whether the [movant] has shown

purposeful discrimination.” Foster v. Chatman, 578 U.S. 488, 499 (2016) (quoting Snyder v.

Louisiana, 552 U.S. 472, 477 (2008)); Rowell v. Ferreira, 830 F. App’x 698, 699 (2d Cir. 2020).

At the final step of the inquiry, “[t]he trial judge must determine whether the [proponent’s]

proffered reasons are the actual reasons [for the strike], or whether the proffered reasons are

pretextual and the [proponent] instead exercised peremptory strikes on the basis of race.” Flowers

v. Mississippi, 588 U.S. 284, 303 (2019). “The trial court must consider the [proponent’s] race-

neutral explanations in light of all of the relevant facts and circumstances, and in light of the

arguments of the parties.” Id. at 302. Because a trial court’s finding as to the intent underlying

the use of a peremptory challenge rests principally upon a credibility assessment that lies

“peculiarly within a trial judge’s province,” that determination is entitled to “great deference” and

is reviewed only for clear error. Rowell v. Ferreira, 830 F. App’x 698, 700 (2d Cir. 2020)

(summary order) (quoting Flowers, 588 U.S. at 303).

Plaintiff is not entitled to a new trial on the theory that there was a Batson violation. After

Plaintiff raised a Batson issue based on a potentially discriminatory pattern in Defendants’

peremptory strikes of three black panelists, the Magistrate Judge required Defendants’ counsel to

offer race-neutral explanations for the challenged peremptory strikes. Therefore, the Magistrate

Judge “met [her] obligations under Batson steps one and two.” Galarza v. Keane, 252 F.3d 630,

639 (2d Cir. 2001). Defendants’ counsel proffered race neutral explanations regarding each of the

prospective jurors at issue based on his impressions of their responses to voir dire questions: that

two of them may have difficulty grasping all the evidence and that the third may have sympathy

for Plaintiff. The decision to exercise a peremptory challenge “may legitimately be based not only

on answers given by the prospective juror[s] to questions posed on voir dire, but also on the

[attorney’s] observations of the prospective juror[s].” McCrory v. Henderson, 82 F.3d 1243, 1247-

48 (2d Cir. 1996) (holding that “[an attorney’s] explanation that a venireperson was excluded

because he or she seemed, for example, inattentive or hostile [to the attorney’s client] if credible,

is sufficient”). Thus, “[a]n impression of the conduct and demeanor of a prospective juror during

the voir dire may provide a legitimate basis for the exercise of a peremptory challenge.” Brown v.

Kelly, 973 F.2d 116, 121 (2d Cir.1992), cert. denied, 506 U.S. 1084 (1993).

As to the Batson third step, the Magistrate Judge credited Defendants’ race neutral

explanations, and this Court sees no reason to disturb that decision. The Magistrate Judge listened

to Defendants’ explanations for striking each prospective juror, even correcting Plaintiff counsel’s

mischaracterization of Defendants’ counsel’s words, then heard Plaintiff counsel’s response. The

Magistrate Judge then made a credibility determination: she explained that she did not believe that

Defendants’ counsel struck the prospective jurors because they were black and that he had

articulated race-neutral reasons. “Given the often subtle reasons for the exercise of peremptory

challenges, a court’s determination of whether [an attorney] has used them in a discriminatory

fashion will often turn on the judge’s observations of prospective jurors and the attorneys during

voir dire and an assessment of their credibility.” McCrory, 82 F.3d at 1248 (collecting persuasive

authority holding that finding of intentional discrimination largely turns on evaluation of

credibility). The Magistrate Judge was in the best position to evaluate Defendants’ counsel’s

credibility and determined that there was no intentional discrimination.

While the Magistrate Judge’s statement did not provide a detailed analysis with respect to

her ruling or make use of the word “credibility,” the disposition is not inadequate under Second

Circuit precedents as district courts “need not engage in a ‘talismanic recitation of specific words’

to satisfy Batson.” Rowell, 830 F. App’x at 700 (quoting Galarza v. Keane, 252 F.3d 630, 640

n.10 (2d Cir. 2001)); see Dolphy v. Mantello, 552 F.3d 236, 239 (2d Cir. 2009) (a court “applying

the third Batson prong need not recite a particular formula of words or mantra”). It must “somehow

make clear whether it credits the . . . race-neutral explanation.” Dolphy, 552 F.3d at 239; see also

Taylor v. Roper, 577 F.3d 848, 865 n.7 (8th Cir. 2009) (an “implicit” “evaluation of credibility”

suffices under the third Batson step). The Magistrate Judge made an ultimate determination that

based on Defendants’ counsel’s race-neutral explanation, Plaintiff’s counsel had failed to establish

a Batson violation, fulfilling her obligations under Batson step three.4

Plaintiff cites only one case—Barnes v. Anderson, 202 F.3d 150 (2d Cir. 1999)—to support

his position that the Magistrate Judge did not assess the credibility of the Defendants’ proffered

reason. See Pl.’s MOL at 5-6. But the circumstances in Barnes are markedly distinct from the

facts of this case. In Barnes, as the Second Circuit noted, the trial record was “somewhat unclear”

by the sequence of events that included two separate Batson motions by plaintiffs based on

defendants’ three peremptory strikes of black prospective jurors. Barnes, 202 F.3d at 156. After

defendants exercised their strikes on two prospective jurors, plaintiffs made their first Babson

motion, and the trial judge stated that it did not find defendants’ “summary” reason pretextual. Id.

On this first Batson challenge, the Second Circuit opined that “[i]f this was the extent of the Batson

issue, then the only question before us would be whether the district court erred in finding

defendants’ explanation credible, a finding entitled to ‘great deference[,]’” id., suggesting that such

ruling by the trial court did not constitute clear error and would not warrant reversal or remand.

But there, it is what followed with respect to plaintiffs’ second Batson challenge that the Second

4 Plaintiff asserts that the “Magistrate Judge then erroneously stated that there were still at least two black jurors

selected and that that somehow rectified the [D]efendants’ violation of Batson.” Pl’s MOL at 5. The Court disagrees

with Plaintiff’s characterization of the Magistrate Judge’s statement. Rather, a fair and reasonable reading of the

transcript reveals that the Magistrate Judge’s comment that “there are two black members who will still be on the

jury” was in response to Plaintiff’s counsel’s specific statement that “[j]ust because you’re black doesn’t mean you

don’t get to be on a jury. This is 2025.” Tr. at 75:22-76:2.

Circuit could not cloak with great deference. Plaintiffs made their second Batson motion after

defendants exercised their third strike. Id. After a “great deal of confusion,” the trial judge stated

that he “won’t rule on credibility of the attorneys right now myself, but I find [both sides’ strikes]

have sufficient reason. I am not stating whether or not I buy all of [the] arguments . . .” Id. at 157.

The Second Circuit “[couldn’t] square the district court’s explicit refusal to rule on the credibility

of either attorney’s explanation with the court’s duty under the third step of Batson.” Id. “The

credibility of an attorney offering a race-neutral explanation is at the very heart of that analysis,”

the court held, and therefore concluded that “the district court erred in its application of Batson to

plaintiffs’ second motion.” Id.

Unlike in Barnes, in this case the Magistrate Judge made a credibility finding. Here, after

Defendants struck three prospective jurors, Plaintiff made its Batson challenge; Defendants

proffered their race-neutral explanations; Plaintiff disagreed with these explanations; and the

Magistrate Judge stated that she did not think Defendants’ counsel struck the three panelists

because they are black, crediting the race neutral reasons, and overruled the Batson challenge. At

no point did the Magistrate Judge refuse—implicitly or explicitly—to make a credibility finding.

Despite the Magistrate Judge’s ruling, Plaintiff continued to press, leading Defendants’ counsel to

defend his character and ethics as an attorney. Then, the Magistrate Judge, having already ruled,

simply noted that the parties made their record and that the issue was preserved for appellate

purposes.

Under these facts, the Court affords “great deference” to the Magistrate Judge’s ruling.

“That deference stems from the fact that the best evidence of the credibility vel non of a race-

neutral explanation will often . . . be the demeanor of the attorney who exercises the challenge,

and such evaluations of demeanor lie[] peculiarly within a trial judge’s province,” in this case the

Magistrate Judge that presided over jury selection. Messiah, 435 F.3d at 196 (quotation and

citation omitted).

Moreover, Plaintiff’s reliance on Barnes to seek a new trial here on the basis that the

Second Circuit had ordered one in Barnes is inapposite. In Barnes, the Second Circuit noted that

“[o]rdinarily in [the circumstance where there’s a Batson violation], [it] would remand to the

district court with instructions either to re-conduct the Batson analysis or, if the district court

determined that it was no longer possible to do so effectively, to order a new trial.” Id. at 157.

However, this was not possible in Barnes, since the trial judge passed away in the intervening

time. Specifically, the Second Circuit noted that while remand could be appropriate to another

trial judge, it reasoned that “in light of the particular circumstances surrounding jury selection, the

state of the record, and the unavailability of the trial judge,” the better course was to remand for a

new trial. Id. (emphasis added); see id. (it was “not confident” that Batson hearing on remand

would “shed reliable light upon the voir dire”). Thus, a new trial was ordered in Barnes because

the district judge did not make a credibility determination in its Batson analysis and could not

make one following appeal because he had passed in the intervening time. By contrast, here, the

Magistrate Judge made a credibility determination. Moreover, there is no evidence that the

Magistrate Judge would encounter any difficulty recalling the circumstances of the jury selection,

if called upon to do so, given that this trial occurred approximately three months ago. Id. at 156.

B. The Jury’s Verdict Was Not Against the Weight of the Evidence

Plaintiff’s second basis for a new trial is that the jury’s verdict was against the weight of

the evidence.5 In support, Plaintiff argues that “Defendants admitted their liability multiple times

5 Plaintiff states that the “[C]ourt properly denied [Defendants’] motion for a directed verdict on the issue of

liability[.]” Pl.’s MOL at 7. However, this is an incorrect representation of the trial record. At the close of Plaintiff’s

case-in-chief, Defendants move for directed verdict, and the Court reserved decision on Defendants’ motion. Tr. at

634:13 (MR. DEMIRAYAK: Yes, Plaintiff rests.”); see id. at 634:15-16 (MR. IERVASI: At this time, I would like to

by (1) admitting not looking carefully enough to avoid the crash, (2) Defendant Jean Andre’s

admission in response to a question by the trial judge if he lied to hide the fact he did not see the

plaintiff’s vehicle before the crash, (3) admissions that their vehicle was obstructing the lane of

travel in violation of the Vehicle and Traffic Law [VTL], and (4) admissions that the vehicle was

stopped at least 4 feet from the right curb in violation of the VTL.” Pl.’s MOL at 7. In Plaintiff’s

view, it was “impossible for a jury to not find liability on the Defendants under these

circumstances”; the “jury had to find [Defendants] even at least 1% liable.” Id.

A jury’s verdict “is against the weight of the evidence, for purposes of a Rule 59 motion,

if and only if the verdict is seriously erroneous or a miscarriage of justice.” Farrior v. Waterford

Bd. of Educ., 277 F.3d 633, 635 (2d Cir. 2002). In contrast to the standards governing a Rule 50

motion, a court “may weigh the evidence and the credibility of witnesses and need not view the

evidence in the light most favorable to the verdict winner” when considering a Rule 59 motion.

Raedle v. Credit Agricole Indosuez, 670 F.3d 411, 418 (2d Cir. 2012). The Court must, however,

“exercise [its] ability to weigh credibility with caution and great restraint,” and “‘[w]here the

resolution of the issues depended on assessment of the credibility of the witnesses, it is proper for

the court to refrain from setting aside the verdict and granting a new trial.’” Id. (quoting

Metromedia Co. v. Fugazy, 983 F.2d 350, 363 (2d Cir. 1992)); Newmont Mines Ltd. v. Hanover

Ins. Co., 784 F.2d 127, 134 (2d Cir.1986) (“It has long been settled that ‘[c]ourts are not free to

reweigh the evidence and set aside the jury verdict merely because the jury could have drawn

make a motion for directed verdict, your Honor.”); see id. 639:12-13 (THE COURT: Okay, with that, the Court will

take the motion under advisement and reserve decision.”). Before the case was submitted to the jury for verdict, the

Court did not rule on Defendants’ motion.

different inferences or conclusions or because judges feel that other results are more reasonable.’”

(alteration in original) (quoting Tennant v. Peoria & Pekin Union Ry., 321 U.S. 29, 35(1944)).

Plaintiff’s argument boils down to the jury “had to find liability against [Defendants] in

light of the trial testimony” because the video simply “does not show the full picture of what

occurred” and that “looking at the video alone could make anyone think [that Plaintiff] was

responsible for the crash.” Pl.’s MOL at 7; Pl.’s Reply at 5. The jury’s “refusal” to find Defendants

liable “even at least 1% liable” was “irrational,” Plaintiff contends. Pl.’s MOL at 7. According to

Plaintiff, his case strategy was to “explain to the jury that it should not just look at the video but

look at other evidence as well to get the full picture.” Pl.’s Reply at 5. In essence, Plaintiff is

asking that the Court set aside the jury verdict and order a new trial on the basis that the jury did

not accept his theory of the case, and that the jury should have disregarded the video, discredited

Andre’s testimony (except for his alleged admission of liability), and fully credited Salters’

testimony (except for when he admitted liability). Thus, Plaintiff rests his entire argument for new

trial on cherry-picked witness trial testimony that Plaintiff believes is favorable to him – and

asserting that had the jury relied on the witness testimony it heard, a rational jury would have

rendered a verdict in Plaintiff’s favor, thereby speculating that because the jury found for

Defendants, it must have relied solely on the video. However, the jury alone is the trier of the

facts, and it is up to the jury to weigh the evidence and assess the credibility of the witnesses. Here,

the jury, relying on a combination of its assessment of the witnesses’ testimony and its review of

the video, simply did not credit the trial testimony in the same way that Plaintiff had hoped.

Where a motion for a new trial is based on witnesses’ testimony, the Second Circuit has

directed district courts to rarely disturb a jury’s credibility determinations because such are the

exclusive province of the jury under all but the most unusual circumstances. See DLC Mgmt.

Corp., 163 F.3d at 134 (“A court should rarely disturb a jury’s evaluation of a witness’s

credibility.”); Raedle v. Credit Agricole Indosuez, 670 F.3d 41, 417-18 (2d Cir. 2012) (trial judge

must act “with caution and great restraint” when asked to review a jury verdict based on witnesses’

credibility; the trial judge “may not freely substitute his or her assessment of the credibility of

witnesses for that of the jury simply because the judge [or a party] disagrees with the jury.”); see

also Elyse v. Bridgeside Inc., 367 F. App’x 266, 268 (2d Cir.2010) (“The district court is authorized

to grant a new trial based on the weight of the evidence only if it determines that the jury’s verdict

was ‘seriously erroneous,’ or ‘a miscarriage of justice.’ In making its determination, however, the

court must refrain from invading the province of the jury to evaluate the credibility of the

witnesses.”).

Here, the parties elicited inconsistencies in Andre and Salters’ testimonies, some of which

were favorable to Plaintiff. However, “it was well within the province of the jury to decide which

testimony to rely upon in reaching its ultimate determination of liability” and it was for the jury to

reconcile these inconsistencies in light of all the evidence put before it by the parties, including

the video. Frank Sloup & Crabs Unlimited, LLC v. Loeffler, 745 F. Supp. 2d 115, 133 (E.D.N.Y.

2010). In other words, the jury was free to credit some or all of Andre and Salters’ respective

testimony. The jury was also not required to believe either side in terms of their testimony and

could have relied on the video.

Ultimately, the jury evaluated the totality of the evidence presented at trial—the testimony

of the witnesses, including Plaintiff Salters and Defendant Andre, as well as the video—and made

credibility determination to resolve any conflicting testimony. As such, the Court will not step in

to second guess the jury’s work. Raedle, 670 F.3d at 418. Here, the verdict was not “seriously

erroneous or a miscarriage of justice.” Farrior, 277 F.3d at 635. Therefore, Plaintiff is not entitled

to a new trial.

CONCLUSION

For the foregoing reasons, Plaintiff’s motion to vacate the judgment and for a new trial is

denied.

SO ORDERED.

/s/

ORELIA E. MERCHANT

United States District Judge

May 27, 2025

Brooklyn, New York