Toure

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

Abdoulaye Toure,

Plaintiff,

v.

MEMORANDUM AND ORDER

Port Authority of New York and New 21-CV-01645 (NRM) (ST)

Jersey, Port Authority of New York and

New Jersey Police Department, and Police

Officer Chelsea Cassino,

Defendants.

NINA R. MORRISON, United States District Judge:

Now before the Court are post-trial motions in this civil rights action, in which

Plaintiff Abdoulaye Toure filed suit under 42 U.S.C. § 1983 for false arrest against

Defendants the City of New York, Air France, Port Authority of New York and New

Jersey (“PANYNJ”), Port Authority of New York and New Jersey Police Department

(“PAPD”), and Chelsea Cassino, a PAPD officer stationed at John F. Kennedy Airport

in New York City.

At the time of his arrest in November 2019, Toure was a small business owner

traveling to Guinea for a meeting with government officials, where he planned to

finalize an agreement to sell certain non-lethal weapons to local Guinean police. He

claims that Officer Cassino falsely arrested him without probable cause for traveling

through John F. Kennedy Airport with a PhaZZer electronic stun gun, even though

it was legal for him to possess and travel with such a device under New York law at

the time. He was released from custody the following day, and all criminal charges

against him were dismissed. In this action, Plaintiff argues that his arrest was

unlawful because the New York statute he was charged with violating, Penal Law §

265.01(1), had been found unconstitutional by a federal district court approximately

eight months before his arrest, and its enforcement was enjoined.

Plaintiff proceeded to trial on a single claim of false arrest against Officer

Cassino.1 The Court held a jury trial from June 11 to 17, 2025, after which the jury

returned a verdict in Plaintiff’s favor on the false arrest claim. The jury awarded

Plaintiff (1) $90,000 in emotional distress damages and (2) $110,000 in economic

damages, based on his projected lost profits from the business deal that fell through

when his arrest prevented him from traveling to Guinea as scheduled.

Now before the Court is Officer Cassino’s motion for judgment as a matter of

law pursuant to Fed. R. Civ. P. 50 or, in the alternative, a new trial pursuant to Fed.

R. Civ. P. 59 or remittitur of the damages award. For the reasons that follow, the

Court denies Defendant’s motions in their entirety, except insofar as the Court agrees

that the jury’s award of economic damages should be reduced from $110,000 to

$86,845.80.

1 All other defendants and claims were dismissed. Plaintiff voluntarily

dismissed his claims against the City of New York. Pl. Notice of Voluntary Dismissal,

ECF No. 15 (July 13, 2021). The Honorable Judge Gary R. Brown granted Air

France’s motion to dismiss. Order dated Sep. 6, 2022, ECF No. 52. The Court found

that Plaintiff’s claims involving all other defendants were abandoned and granted

summary judgment thereto. Order dated Sep. 30, 2024, ECF No. 73.

FACTUAL BACKGROUND

The following facts are drawn from the trial record and construed in the light

most favorable to the non-moving party, “disregard[ing] all evidence favorable to the

moving party that the jury is not required to believe.” Kerman v. City of New York,

374 F.3d 93, 114 (2d Cir. 2004) (citation omitted).

On November 12, 2019, Plaintiff Abdoulaye Toure was scheduled to fly from

John F. Kennedy airport in New York City to Paris, France, and then to Conakry,

Guinea. Plaintiff was traveling in his capacity as owner and employee of Safe Bet

Express, a broker of equipment for different governments, including non-lethal

weapons used by police for crowd control. Tr. at 14. In Plaintiff’s suitcase was a

single electronic stun gun, the PhaZZer.

Plaintiff was bringing the PhaZZer to Guinea as an exemplar device for sale in

an anticipated business deal. Plaintiff, and Safe Bet Express, had done business with

the government of Guinea for years. Tr. at 20. Four or five months prior to the events

in this case, Colonel Keita, the Guinean director of police for the rioting department,

reached out to Plaintiff in anticipation of upcoming elections and potential political

unrest, seeking a non-lethal method of crowd control. Tr. at 19–20. Plaintiff proposed

the PhaZZer as one solution. Tr. at 21.

Over the next several months, Plaintiff had more than ten conversations with

Guinean government officials about the sale of the PhaZZer, concluding in a verbal

agreement as to price, quantity, delivery logistics, and an anticipated delivery within

sixty days. Tr. at 21–23, 339. By the time of his travel, Plaintiff had sent the Guinean

government an invoice; all that remained was to demonstrate the use of the stun gun

and sign a written contract. Tr. at 23–24.

Plaintiff planned to bring the PhaZZer sample in his checked bag. Tr. at 25.

Prior to his travel, Plaintiff took numerous steps to ensure that his transport of the

PhaZZer was lawful. Tr. at 24. First, from the supplier of the PhaZZer, he obtained

a letter from the Bureau of Alcohol, Tobacco, and Firearms (the “ATF letter”) stating

that the PhaZZer is not classified as a firearm. Tr. at 35; Pl. Ex. 6. Also from the

supplier, he obtained a classification letter from the U.S. Department of

Transportation (the “DOT letter”). Tr. at 31; Pl. Ex. 11. Plaintiff also consulted the

website of the Transportation Security Administration (“TSA”), which stated that it

was lawful to carry stun guns in checked luggage, and the website of Air France,

which stated the same. Tr. at 29–30; Pl. Ex. 9, 10. Plaintiff also called Air France to

confirm that the airline had no prohibition on traveling with the PhaZZer. Tr. at 29.

Finally, Plaintiff conducted a Google search, which revealed an article that he

recalled came from a reputable law journal, stating that a recent federal district court

case, Avitabile v. Beach, 368 F. Supp. 3d 404, 407 (N.D.N.Y. 2019) (“the Avitabile

ruling”), had made clear that it was lawful to carry a taser in New York. Tr. at 24–

25, 110–13.

When Plaintiff arrived at the Air France check-in desk, he informed the staff

— unprompted — that his suitcase contained a taser. Tr. at 45. After he did so, the

staff called the police. Tr. at 46. Chelsea Cassino, a Port Authority Police

Department officer, responded, and was joined by Officer Francis Florio. Tr. at 47.

Plaintiff calmly and respectfully informed the responding officers that transporting

the PhaZZer was lawful. Tr. at 49–50. He asked them to call the TSA to confirm, but

they did not do so. Tr. at 50. He also presented the responding officers with the ATF

and DOT letters. Tr. at 49. Finally, he informed the responding officers of the federal

ruling in Avitabile that had struck down New York Penal Law § 265.01(1) as it relates

to tasers, and showed them a preview of an AP news article discussing the Avitable

ruling that his wife had texted and that he had pulled up on his phone. Tr. at 51, 53,

57, 139–40. The preview showed the headline of the article: “Judge says New York

stun gun ban is unconstitutional.” Tr. at 139; Pl. Ex. 12.

The responding officers disregarded all this information and made no further

inquiries. Tr. at 49–53, 59–60. Instead, Officer Cassino determined that there was

probable cause to arrest Plaintiff for violating New York Penal Law § 265.01(1), called

supervising officer Sergeant Bernard Buckner to confirm, and placed Plaintiff under

arrest. Tr. at 271, 287–88.

By the time Plaintiff was arrested, other passengers had arrived at the check-

in counter, and he testified that it was “very embarrassing” to be handcuffed “in front

of all these people.” Tr. at 53, 61. Plaintiff was brought to the Port Authority jail,

where officers took his sports coat and scarf, leaving him in a T-shirt and “really cold.”

Tr. at 70. Later that night, PAPD gave Plaintiff back his sports coat and put him in

the back of a police vehicle for transport to Queens Central Booking, where he sat for

“quite a while” waiting and was again “really cold.” Tr. at 72. When the vehicle

eventually drove Plaintiff to Central Booking, he was not secured with a seatbelt. Tr.

at 72.

Plaintiff was held in Central Booking until his release the following day. Tr.

at 75. He secured another flight to Conakry, but he could not bring his PhaZZer

exemplar with him because it had been seized at the airport upon his arrest. Tr. at

76. He arrived in Conakry two days late, missed his scheduled meeting with the

Guinean police, and Safe Bet Express’ deal with its prospective Guinean buyers fell

through. Tr. at 78–80. Plaintiff testified in detail as to the value and quantity of the

goods he would have sold had he closed his earlier oral agreement with Guinean

police officials at the meeting. Tr. at 321–27. Specifically, he testified that his lost

sales amounted to $289,000, which would have yielded him a profit margin of

approximately thirty percent. Tr. at 321–27.

PROCEDURAL HISTORY

The Court held a jury trial from June 11 to June 17, 2025. At trial, the jury

heard from Plaintiff, his wife, Officer Cassino, and two other officers present at the

time of the arrest, Officer Florio and Sergeant Buckner. The jury also heard the

parties’ stipulation about the earlier federal court ruling striking down New York’s

ban on the possession of stun guns, as follows: “On March 22, 2019, approximately

eight months before Mr. Toure was arrested, a federal judge in the Northen District

of New York issued a written ruling in a case called Avitabile v. Beach. In that ruling,

the federal court found that New York Penal Law § 265.01(1), which had made it a

crime for any person to possess an electronic dart gun or an electronic stun gun in the

State of New York violated the Second Amendment to the United States Constitution

and was, therefore, unconstitutional.” Tr. at 82–83.2

At the conclusion of the trial, the jury deliberated on Plaintiff’s sole claim of

false arrest under 42 U.S.C. § 1983. It found in Plaintiff’s favor, and awarded him a

total of $200,000 in compensatory damages: $90,000 in non-economic damages and

$110,000 in economic damages/lost profits. Verdict Sheet, ECF No. 114. On July 14,

2025, Officer Cassino filed a post-trial motion for judgment as a matter of law, a new

trial, and remittitur under Fed. R. Civ. P. 50, 59(a), and 59(e).

DISCUSSION

Officer Cassino seeks judgment as a matter of law under Fed. R. Civ. P. 50,

arguing that notwithstanding the jury’s verdict, (1) she had probable cause to arrest

Plaintiff for violating New York City Administrative Code § 10-135, and (2) even if

probable cause for Plaintiff’s arrest was lacking, she is entitled to qualified immunity

because she reasonably believed she had probable cause to arrest Plaintiff under both

New York City Administrative Code § 10-135 and New York Penal Law § 265.01(1).

Officer Cassino also moves to set aside or remit the jury’s award for both economic

2 Defendant asserts, as she did pretrial, that the Avitabile ruling is of limited

relevance because, more than five years later, its reasoning was rejected by a different

judge in the Southern District of New York in Calce v. City of New York, 21-CV-8208

(ER), 2025 WL 895414, at *10 (S.D.N.Y. Mar. 24, 2025). Because that decision

postdates Plaintiff’s arrest by several years, however, it is irrelevant to whether

Officer Cassino had probable cause to arrest Plaintiff in November 2019, nor to

whether she is entitled to qualified immunity for her actions at that time. Prior to

trial, the Court gave Defendant leave to submit any authority supporting her claim

that the Court (or the jury) could properly rely on Calce for either proposition given

that it postdates Plaintiff’s arrest, see Min. Entry dated May 30, 2025, but defense

counsel provided none, see Letter dated June 3, 2025, ECF No. 95.

and non-economic damages under Fed. R. Civ. P. 59(e) or, in the alternative, for a

new trial under Fed. R. Civ. P. 59(a). The Court addresses each argument in turn.

I. Judgment as a Matter of Law

At trial, Officer Cassino argued that she had probable cause to arrest Plaintiff

under the Administrative Code, and that she was entitled to qualified immunity

because her decision to arrest Plaintiff was reasonable under both the Administrative

Code and New York Penal Law § 265.01(1). The jury was instructed on both the

Administrative Code and the Penal Law and instructed that Officer Cassino would

not be liable for false arrest if she had probable cause to arrest Plaintiff under either

provision. Jury Instructions, ECF No. 110 at 15–19. The jury found for Plaintiff on

his false arrest claim. Officer Cassino now moves to set aside the verdict, arguing

that, as a matter of law, she had probable cause to arrest Plaintiff for violating the

Administrative Code and that she was entitled to qualified immunity under either or

both provisions.

a. Standard of Review

A district court may grant a motion for judgment as a matter of law in a jury

trial if it finds “that a reasonable jury would not have a legally sufficient evidentiary

basis to find for the party” opposing the request. Fed. R. Civ. P. 50(a)(1). The Second

Circuit has held that a district court may grant a Rule 50 motion only if:

(1) there is such a complete absence of evidence supporting the verdict

that the jury’s findings could only have been the result of sheer surmise

and conjecture, or (2) there is such an overwhelming amount of evidence

in favor of the movant that reasonable and fair minded persons could

not arrive at a verdict against it.

Ortiz v. Stambach, 137 F.4th 48, 61 (2d Cir. 2025) (citation omitted). The standard

for judgment as a matter of law is “the same as for summary judgment.” Cobb v.

Pozzi, 363 F.3d 89, 101 (2d Cir. 2004). Moreover, “[i]n ruling on a motion for judgment

as a matter of law, the court may not itself weigh credibility or otherwise consider the

weight of the evidence; rather, it must defer to the credibility assessments that may

have been made by the jury and the reasonable factual inferences that may have been

drawn by the jury.” Williams v. Cnty. of Westchester, 171 F.3d 98, 101 (2d Cir. 1999).

Thus, the court “must draw all reasonable inferences in favor of the nonmoving

party . . . [and] disregard all evidence favorable to the moving party that the jury is

not required to believe.” Zellner v. Summerlin, 494 F.3d 344, 370 (2d Cir. 2007)

(quotation modified).

b. Probable Cause and Qualified Immunity

To prevail on his false arrest claim at trial, Plaintiff had to show, by a

preponderance of the evidence, that Officer Cassino “intentionally confined him

without his consent and without justification.” See Dancy v. McGinley, 843 F.3d 93,

107 (2d Cir. 2016) (reciting elements of false arrest under New York law) (citation

omitted). “[T]he existence of probable cause” for an arrest “is an absolute defense to

a false arrest claim.” Jaegly v. Couch, 439 F.3d 149, 152 (2d Cir. 2006). To have

probable cause for an arrest, a police officer must “have knowledge or reasonably

trustworthy information of facts and circumstances that are sufficient to warrant a

person of reasonable caution in the belief that the person to be arrested has

committed or is committing a crime.” Zalaski v. City of Hartford, 723 F.3d 382, 389–

90 (2d Cir. 2013) (citation omitted). Probable cause demands only the “kind of fair

probability on which reasonable and prudent people, not legal technicians, act.”

Florida v. Harris, 568 U.S. 237, 244 (2013) (citation modified).

Plaintiff is also barred from recovering against Officer Cassino if she can

demonstrate that she was entitled to qualified immunity. See Outlaw v. City of

Hartford, 884 F.3d 351, 367 (2d Cir. 2018) (“Qualified immunity is an affirmative

defense on which the defendant has the burden of proof.”). Qualified immunity

protects a police officer from civil damages if she can show that “(a) [her] action did

not violate clearly established law, or (b) it was objectively reasonable for [her] to

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

Cir. 2015) (citation omitted).

The right to be free from arrest without probable cause “is a long established

constitutional right.” Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 128 (2d Cir.

1997); Jaegly, 439 F.3d at 151 (The “Fourth Amendment right to remain free from

unreasonable seizures . . . includes the right to remain free from arrest absent

probable cause.”). However, even if probable cause was lacking, Officer Cassino may

be entitled to qualified immunity if her decision to arrest Plaintiff was objectively

reasonable based on the information available to her at the time. “Qualified

immunity protects an officer so long as [s]he had ‘arguable probable cause’ to arrest,

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

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

whether the probable cause test was met.’” Dancy, 843 F.3d at 107 (quoting Escalera

v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004) (further quotations omitted)).

It is also well established that in some circumstances, officers have a duty to

further investigate whether probable cause exists before making an arrest. As

relevant here, when an officer becomes aware of factual or legal matters that may

undermine probable cause, she must conduct a limited but nonetheless reasonable

investigation of those matters prior to taking a suspect into custody. “Reasonable

avenues of investigation must be pursued to establish probable cause especially

when . . . it is unclear whether a crime had even taken place.” Oliveira v. Mayer, 23

F.3d 642, 647 (2d Cir. 1994) (citation modified); see also Manganiello v. City of New

York, 612 F.3d 149, 161 (2d Cir. 2010) (“[T]he failure to make a further inquiry when

a reasonable person would have done so may be evidence of lack of probable cause.”

(citation omitted)) (denying judgment as a matter of law). In particular, while an

officer need not investigate every “arrestee’s protestations of innocence,” Panetta v.

Crowley, 460 F.3d 388, 395–96 (2d Cir. 2006), she also may not “turn a deaf ear” to

evidence that would exculpate the arrestee, Tretola v. Cnty. of Nassau, 14 F. Supp.

3d 58, 74 (E.D.N.Y. 2014) (denying judgment as a matter of law to police officer who

arrested plaintiff for maintaining an unsafe heater despite foregoing multiple

opportunities to confirm that the heater was not operational); see also Breton v. City

of New York, 404 F. Supp. 3d 799, 811 (S.D.N.Y. 2019) (finding neither probable cause

nor qualified immunity for arrest where defendants “turned a blind eye to evidence

that was known to them” that exculpated the plaintiff, including multiple eyewitness

reports). “[A]n officer may not disregard plainly exculpatory evidence.” Panetta, 460

F.3d at 395; see also Figueroa v. Mazza, 825 F.3d 89, 102 (2d Cir. 2016) (“[A]n officer

making a probable-cause determination is not at liberty to ignore evidence tending to

exculpate the suspect.”). An officer also may not turn a blind eye or deaf ear to

evidence that may negate probable cause prior to making an arrest. For instance,

probable cause was found lacking where an officer “admitted that he had harbored

serious doubts” about the identification of the plaintiff, but still “failed to conduct an

independent investigation” before making an arrest. Roundtree v. City of New York,

617 N.Y.S.2d 170, 171 (N.Y. App. Div. 1st Dep’t 1994). Similarly, the Second Circuit

found that an officer’s refusal to accept a phone call from a treating psychiatrist who

may have had relevant information about the plaintiff’s mental state before

involuntarily hospitalizing the plaintiff was objectively unreasonable and not

shielded by qualified immunity. Kerman v. City of New York, 261 F.3d 229, 241 (2d

Cir. 2001) (reversing district court’s grant of summary judgment on Fourth

Amendment claim, and finding no qualified immunity, where plaintiff argued that

officer “failed to reasonably investigate his mental state” before taking him into

custody and involuntarily transporting him to a psychiatric facility).

c. Administrative Code § 10-135

Officer Cassino makes two arguments as to why New York City Administrative

Code § 10-135 shields her from liability for Plaintiff’s false arrest as a matter of law.

First, she argues that she had actual probable cause to arrest Plaintiff under the code,

a complete defense to the action for false arrest. See Weyant v. Okst, 101 F.3d 845,

852 (2d Cir. 1996). Second, she argues that she had at least “arguable probable cause”

to arrest Plaintiff under the code, giving her qualified immunity for her actions. See

Zellner, 723 F.3d at 369 (citation modified).

Officer Cassino raised her Section 10-135 defense for the first time at trial,

having failed to raise it at summary judgment. See Mot. Summary J., ECF No. 65

(Oct. 31, 2023). Although Officer Cassino did not charge Plaintiff with violating the

Administrative Code, a claim for false arrest “turns only on whether probable cause

existed to arrest a defendant,” and it is irrelevant whether probable cause existed

with respect to the charge “actually invoked by the arresting officer at the time of

arrest.” Jaegly, 439 F.3d at 154. Thus, the Court allowed Officer Cassino to argue at

trial that she had probable cause to arrest Plaintiff under Section 10-135 and now

considers whether, as a matter of law, the trial record shows that she had either

probable cause or (for purposes of qualified immunity) at least “arguable probable

cause” to arrest Plaintiff on that basis.

The Administrative Code makes it a misdemeanor to possess an electronic stun

gun in New York City, with two exceptions. N.Y.C. Admin. Code § 10-135. The

second exception, relevant here, applies to “manufacturers of electronic stun guns or

importers and exporters or merchants of electronic stun guns, when such stun guns

are scheduled to travel in the course of international, interstate, or intrastate

commerce to a point outside the city.” N.Y.C. Admin. Code § 10-135(e). The code

further provides that “[s]uch bulk shipments shall remain in their original shipping

package, unopened, except for inspection and possible subdivision for further

movement in interstate or intrastate commerce to a point outside the city.” Id.

i. Actual Probable Cause Under Administrative Code § 10-135

Probable cause determinations are fact-specific and turn on “those facts

available to the officer at the time of the arrest and immediately before it.” Caldarola

v. Calabrese, 298 F.3d 156, 162 (2d Cir. 2002) (citation omitted). Here, numerous

facts presented at trial — taken in the light most favorable to Plaintiff — support the

jury’s determination that Officer Cassino lacked probable cause to arrest Plaintiff

under Administrative Code § 10-135.

First, a jury could have reasonably found that Plaintiff was a merchant of

electronic stun guns and thus not in violation of the code. N.Y.C. Admin. Code § 10-

135(e). Plaintiff testified that he told the responding officers that he was bringing

the PhaZZer to Guinea in connection with a planned sale of the stun guns, and that

he was doing so lawfully. Tr. at 50 (Plaintiff “explained to [the officers that] it was a

business trip” and that he had the required documentation), 118 (Plaintiff “told [the

officers that the PhaZZer] was a sample for the police in Guinea”).3 Plaintiff’s

testimony was corroborated in part by Officer Cassino, who recalled that Plaintiff

informed her that he was traveling with the PhaZZer for business purposes. Tr. 262;

see also id. at 282 (testifying that Plaintiff told her “he was trying to bring [the

PhaZZer] to Guinea to sell to the police”). While Officer Cassino’s supervisor,

3 Under the collective knowledge doctrine, the information Plaintiff shared

with Officer Florio and Sergeant Buckner may be imputed to Officer Cassino, as

another officer participating in the same investigation. See Zellner, 494 F.3d at 369.

Sergeant Buckner, claimed that he ascertained that Plaintiff lacked a merchant’s

license before authorizing the arrest, Tr. at 192, his account was contradicted by

Plaintiff’s testimony that the responding officers never responded to his assertions

that he was lawfully transporting the PhaZZer for a business deal, Tr. at 50–51, 59–

60. The jury also could have reasonably declined to credit Buckner’s claim that prior

to Plaintiff’s arrest, he considered whether Plaintiff was legally authorized to carry a

PhaZZer as a “merchant,” after Buckner was impeached by prior deposition testimony

that he believed carrying such a device would be legal only if “the person was a law

enforcement officer or a certified security guard.” Tr. at 214–15; see Ortiz, 137 F.4th

at 64 (finding that jury “could have rationally rejected [defendant’s] testimony as not

credible based on . . . [defendant’s] prior inconsistent statements admitted at trial”).

Defendant’s reliance upon a portion of Plaintiff’s trial testimony in which he

stated that he “wasn’t manufacturing or selling” stun guns is misplaced. Def. Mem.

in Support of Mot. for J. as a Matter of Law (“Def. Mem.”), ECF No. 121 at 9 (July 14,

2025); Tr. at 109. In that excerpt, Plaintiff was responding to questions posed by

defense counsel about the ATF letter, which “advise[d] that you consult with local law

enforcement authorities to make certain there are no restrictions based on State laws

or local ordinances that could impact your manufacturing and sales activities.” Pl.

Ex. 6. Asked why he didn’t consult the police before traveling to New York, Plaintiff

explained, “I didn’t because I wasn’t manufacturing or selling.” Tr. at 109. Taken in

context, a jury could have quite reasonably found that Plaintiff did not consult local

law enforcement before traveling because he was not manufacturing or selling stun

guns in New York City. The Administrative Code exception, however, applies to

merchants engaged in the sale of stun guns to buyers located outside New York City.

Plaintiff’s out-of-context response to cross-examination concerning the ATF letter,

therefore, is not probative of whether Officer Cassino had probable cause to believe

that he did not otherwise qualify as a “merchant” under the Administrative Code. In

any case, there was no testimony that Plaintiff ever stated to Officer Cassino or

anyone else at the time of his arrest that he “wasn’t manufacturing or selling” these

devices. It goes without saying that Plaintiff’s testimony at trial in 2025 was not a

“fact[] available to [Officer Cassino] at the time of the arrest.” Caldarola, 298 F.3d

at 162. Plaintiff’s trial statement cannot be imputed to give Officer Cassino probable

cause.

Defendant also argues that Plaintiff was not a “merchant” permitted to possess

a stun gun for commercial travel purposes under Section 10-135 because he was only

in possession of a single PhaZZer. Def. Mem. at 7. The jury was entitled to reject

this interpretation of the Administrative Code, which Defendant pressed at

summation. Tr. at 408–9. Defendant presents no case law to support her novel

interpretation of Section 10-135, and the Court finds no basis to adopt it.

As an initial matter, the Court is guided by the plain text of the statute. See

City of New York v. Golden Feather Smoke Shop, Inc., No. 08-CV-3966 (CBA), 2009

WL 2612345, at *29 (E.D.N.Y. Aug. 25, 2009) (“The [New York] Court of Appeals has

held ‘repeatedly’ that ‘where the language of a statute is clear and unambiguous,

courts must give effect to its plain meaning.’” (quoting Samiento v. World Yacht Inc.,

10 N.Y.3d 70, 78 (N.Y. 2008)) (collecting cases)); Matter of Raritan Dev. Corp. v. Silva,

91 N.Y.2d 98, 106 (N.Y. 1997) (“This Court has long applied the well-respected plain

meaning doctrine” of statutory construction.). On its face, the Administrative Code

exception extends to all “merchants of electronic stun guns” engaged in the

commercial transport of “such stun guns” in and out of New York City. N.Y.C. Admin.

Code § 10-135(e). The jury had ample grounds to find that Plaintiff fell within that

exception.

The remaining language upon which Defendant relies — “Such bulk shipments

shall remain in their original shipping package, unopened, except for inspection and

possible subdivision” — does not support Defendant’s narrow reading of the code.

Def. Mem. at 8. Instead, the Code’s use of the word “such” is merely a description of

certain (bulk) shipments that may fall within the exception — but nothing in the Code

suggests that bulk shipments are the only circumstance in which the exception will

apply.

Defendant’s interpretation also invites contradictions. The code explicitly

contemplates the “subdivision” of bulk shipments. N.Y.C. Admin. Code § 10-135(e).

But a bulk shipment, once subdivided, may no longer be in bulk. Defendant’s

interpretation of the code would lead to the absurd result that a merchant of

electronic stun guns could possess a bulk quantity of goods for shipment, and could

subdivide that shipment, but not into individual units. See People v. Pabon, 28 NY3d

147, 156 (N.Y. 2016) (“[W]e must interpret a statute so as to avoid an unreasonable

or absurd application of the law.”) (citation omitted). Nor does the Administrative

Code provide any definition of how many stun guns constitute a “bulk shipment,”

such that law enforcement officers and reviewing courts might determine whether

the exception does or does not apply. Accordingly, the Court declines to adopt

Defendant’s novel claim that the “merchant” exception in the Administrative Code

only applies when a merchant sells the listed devices in a “bulk” shipment.

Lastly, Defendant argues, relying on the Uniform Commercial Code, that

Plaintiff was not a merchant because he lacked the requisite “knowledge or skill

peculiar to the practice or goods involved in the transaction.” Def. Mem. at 8 (citing

N.Y. U.C.C. § 2-104(1)). But Defendant’s assertion that the Administrative Code

integrates the definitions of the Uniform Commercial Code is entirely unsupported.

In any case, the record is replete with evidence from which a jury could have

concluded that Plaintiff was a merchant. Plaintiff owned a company specializing in

sales of “non-lethal weapon[s] for crowd control” such as the PhaZZer. Tr. at 14; see

N.Y. U.C.C. § 2-104, Cmt. 2 (“[A]lmost every person in business would . . . be deemed

to be a ‘merchant.’”).

Thus, it was reasonable for the jury to find that Officer Cassino lacked probable

cause for Plaintiff’s arrest under N.Y.C. Admin. Code § 10-135 because, prior to

arresting him, she was alerted to facts establishing that the Code’s exception applied

to Plaintiff, a merchant transporting a single stun gun for business purposes.

ii. Arguable Probable Cause Under Administrative Code § 10-135

Officer Cassino also argues that she is entitled to judgment as a matter of law

because she has qualified immunity under the Administrative Code. An officer is not

entitled to qualified immunity if “no officer of reasonable competence could have made

the same choice in similar circumstances.” Lennon v. Miller, 66 F.3d 416, 420–21 (2d

Cir. 1995). “Arguable probable cause should not be misunderstood to mean almost

probable cause.” Jenkins v. City of New York, 478 F.3d 76, 87 (2d Cir. 2007) (citation

modified). “If officers of reasonable competence would have to agree that the

information possessed by the officer at the time of arrest did not add up to probable

cause, the fact that it came close does not immunize the officer.” Id. The relevant

question is not whether Officer Cassino should have conducted additional

investigation after the arrest, but “whether, given the totality of circumstances, [she]

should have investigated further before concluding that [s]he had probable cause to

arrest.” Tretola, 14 F. Supp. 3d at 74. Here, Officer Cassino’s Administrative Code

defense, which emerged for the first time at trial, does not provide qualified immunity

for Plaintiff’s arrest.

Even Officer Cassino’s own testimony supports a finding that she lacked

arguable probable cause to arrest Plaintiff under the Administrative Code. Officer

Cassino testified that while she was aware at the time of Plaintiff’s arrest that the

Administrative Code barring possession of stun guns had exceptions, she was not

aware what the exceptions actually were, and was specifically unaware of the

exception for merchants of stun guns. Tr. at 273, 306; see also id. at 262, 264

(testifying that she believed Plaintiff lacked the “proper documentation” to possess a

stun gun because he was not “an active law enforcement officer or security guard”).

Officer Cassino could not rely on her experience of the law; she had never previously

made an arrest for unlawful possession of a stun gun. Tr. at 265. Indeed, she testified

at length that because she was not aware of the exceptions to Section 10-135, she

would have had to conduct additional independent research on the scene to determine

whether she had probable cause to arrest Plaintiff under that portion of the

Administrative Code. Tr. at 306–08 (“If I was charging [Plaintiff] with the admin

code I would have independently researched that on the scene.”). Officer Cassino

conducted no such investigation. Tr. at 308. As such, no reasonable officer in

Defendant’s position could have determined, based on the facts available to her “at

the time of arrest,” Jenkins, 478 F.3d at 87, that she had probable cause to arrest

Plaintiff. See, e.g., Spruill v. Levy, No. 04 CIV 7316 (KMW) (JCF), 2008 WL 2413899,

at *4 (S.D.N.Y. June 12, 2008), report and recommendation adopted, 2008 WL

3884358 (S.D.N.Y. Aug. 21, 2008) (“The police may not rely on information gained

after-the-fact to show that probable cause existed at the time of arrest”); see also

United States v. Thevis, 469 F. Supp. 490, 503 (D. Conn. 1979), aff’d, 614 F.2d 1293

(2d Cir. 1979) (“[O]fficers may not use facts which were learned only after the arrest

to establish probable cause.”).

Officer Cassino argues that she could have checked the language of the

Administrative Code at the stationhouse after effecting the arrest and learned that

Plaintiff was not (allegedly) covered by any exceptions in the Code. Def. Mem. at 6.

Yet such a post-hoc determination likewise could not have created probable cause for

an arrest. And while the other responding officer at the scene claimed that he was

aware of the prohibitions in Section 10-135, he, too, testified that his understanding

of the law was that “basically, you’re not allowed to have a stun gun in the New York

City area,” and gave no indication that he was aware of the exceptions expressly set

forth in the Code. Tr. at 365. In short, the evidence showed that Plaintiff informed

Officer Cassino that he was carrying the PhaZZer for purposes of an international

business transaction; that Officer Cassino knew there were exceptions to the

Administrative Code but did not know (or consider) at the time of Plaintiff’s arrest

what those exceptions were; and that Officer Cassino failed to further investigate

whether any of the Code’s exceptions applied to Plaintiff before placing him under

arrest. Under these circumstances, a reasonable officer had an affirmative duty to

consider whether Plaintiff fell within one of the exceptions set forth in the text of the

Administrative Code prior to effecting his arrest. Because Officer Cassino did not do

so, she lacked an objectively reasonable belief that she had the lawful authority to

arrest Plaintiff. See Okin v. Vill. of Cornwall-On-Hudson Police Dep’t, 577 F.3d 415,

433 & n.11 (2d Cir. 2009). Officer Cassino’s motion for a judgment as a matter of law

by reason of qualified immunity under the Administrative Code is therefore denied.

d. New York Penal Law § 265.01(1)

Officer Cassino does not argue that she had actual probable cause to arrest

Plaintiff under New York State Penal Law § 265.01(1), which had been ruled

unconstitutional and its enforcement enjoined statewide months before she placed

Plaintiff under arrest for violating that law. Avitabile, 368 F. Supp. 3d at 421.4

4 The Avitabile injunction extends to “all persons in active concert or

participation with the New York State Police.” 368 F. Supp. 3d at 421. Officer

Instead, she asserts that she is entitled to qualified immunity because she had

“arguable probable cause” to arrest Plaintiff — specifically, because she was unaware

of the federal court’s decision enjoining the enforcement of the statute and reasonably

believed that it remained in force. Def. Mem. at 10. This argument is unavailing.

The Court considered and rejected Defendant’s qualified immunity argument

under Penal Law § 265.01(1) at summary judgment. Mem. Op., ECF No. 73 at 12–

19. There, the Court analyzed Officer Cassino’s arguments under Amore v. Novarro,

in which the Second Circuit applied its narrow exception to the general rule that a

“police officer’s enforcement of an unconstitutional statute will [not] be immune.” 624

F.3d 522, 535 (2d Cir. 2010) (noting that courts “ordinarily impute knowledge of the

case law to public officials” absent “extraordinary circumstances” (citing Harlow v.

Fitzgerald, 457 U.S. 800, 819 (1982)). In particular, “where the defendant acted

deliberately and rationally in seeking to determine the then-valid, applicable and

enforceable law” — in that case, by consulting a copy of the New York Penal Law that

included the unconstitutional statute — immunity stands. Id. at 527, 535. However,

as the Court noted, Amore was an “unusual case” and a “limited exception” to the

general rule that courts “impute knowledge of case law to public officials.” Mem. Op.

at 16–17 (citing Zalaski, 723 F.3d at 391); see also Deferio v. City of Syracuse, 306 F.

Supp. 3d 492, 517 (N.D.N.Y. 2018), aff’d, 770 F. App’x 587 (2d Cir. 2019) (officer’s

reliance on “arguably incorrect” interpretation of permit did not fall within Amore

Cassino does not argue that, while acting in her capacity as a law enforcement officer

with the PAPD, she fell outside the scope of that injunction.

exception); United States v. Stroke, No. 14-CR-45S, 2019 WL 1960207, at *21

(W.D.N.Y. May 2, 2019) (finding that Amore “does not help” establish probable cause

for search under statute subject to permanent injunction).

Assessing this case under the Amore standard at summary judgment, the

Court determined that Officer Cassino’s actions did not fall within that limited

exception. Mem. Op. at 17–19. In particular, the record at summary judgment

precluded Officer Cassino from establishing, as a matter of law, that she had not been

trained on the Avitabile ruling and therefore acted in good faith when she arrested

Plaintiff under a statute that had been declared unconstitutional. Id. Moreover,

unlike the officer in Amore who made efforts to determine whether the law was then

in effect, there was no evidence at summary judgment that Officer Cassino made any

such attempts. Id.

Officer Cassino’s claim fares no better after trial. Instead, the post-trial record

makes even more clear that her actions do not fall within the “limited exception” of

Amore and that — drawing all reasonable inferences in Plaintiff’s favor — Officer

Cassino is not entitled to qualified immunity for her false arrest of Plaintiff.

First, Plaintiff testified that he presented an array of information to the

responding officers, including directly to Officer Cassino, that a reasonable jury could

have found triggered a well-established duty to investigate. Plaintiff told the officers

that he had researched New York law on carrying stun guns prior to his travel and

confirmed that possession was legal. Tr. at 51. He also informed the officers that the

New York state penal law that had made it illegal to possess stun guns had been

struck down by a federal judge. Tr. at 51. The officers responded, incorrectly,

“[T]hat’s not going to take effect until next year.” Tr. at 51. Plaintiff’s wife was on

the phone with him while he discussed these matters with the officers prior to his

arrest. During that call, his wife texted him a link to an article about the Avitabile

ruling which stated that the stun gun ban had been found unconstitutional. Tr. at

53. A screenshot of this text message, including an article preview and the headline

“Judge says New York stun gun ban is unconstitutional,” was admitted as an exhibit.

Tr. at 139–40, Pl. Ex. 12. Plaintiff showed this text message to the responding officers

and informed them that the decision “specifically . . . says starting immediately.” Tr.

at 53. At that point, the arresting officers told Plaintiff that “yes, that’s federal, that’s

not New York City, we operate differently.” Tr. at 59. The officers also told Plaintiff,

without supplying any reason, that they suspected he was “making up” the federal

court decision. Tr. at 60.5

Crediting Plaintiff’s testimony, the article stating the stun gun ban had been

found unconstitutional triggered a limited duty to investigate whether Penal Law

§ 265.01(1) remained in effect. In fact, Sergeant Buckner testified that if he had been

provided with a court decision stating that Plaintiff could legally possess a stun gun,

5 Defendant contested whether Plaintiff ever mentioned the change in the law

or showed the officers his phone. Tr. at 269–70. Considering such conflicting

testimony in a motion for judgment as a matter of law, the Court “must defer to the

credibility assessments that may have been made by the jury.” Williams, 171 F.3d

at 101. The jury was well within its rights to credit Plaintiff’s testimony that he did

in fact tell the responding officers about the federal court injunction and showed the

article to the responding officers. That is particularly so since the jury had the benefit

of additional corroborating evidence, i.e., a contemporaneous text message from

Plaintiff’s wife with the article preview and headline. Pl. Ex. 12.

he would have “called the lieutenant who was my supervisor” to seek advice on the

situation. Tr. at 191; see also Tr. at 220 (“[If made aware there had been a court

decision,] I would have conferred with [my lieutenant].”). Officer Cassino likewise

testified that “if there’s a question on the law I’m absolutely going to do further

investigation.” Tr. at 308. She also confirmed that if she needed to detain someone

while she checked whether there was a lawful basis for their arrest, she had the

ability to do so. Tr. at 382. None of the responding officers, however, did any further

investigation after Plaintiff showed them the article about the Avitabile ruling. The

Court finds that a reasonable officer under the circumstances would have further

investigated whether Penal Law § 265.01(1) remained in force before putting Plaintiff

under arrest for violating its terms. Cf. Amore, 624 F.3d at 533–35 (officer entitled

to qualified immunity after consulting a copy of New York’s Penal Law prior to

effecting arrest).

Second, Officers Cassino and Florio and Sergeant Buckner all testified about

extensive legal training provided by PAPD, from which a jury could have found that

Officer Cassino had been trained about the change in the law following the Avitabile

ruling, or that a reasonable officer in her position would have known about the ruling.

Officer Cassino testified that she was trained four times a year on changes in the law,

and that other important updates were provided through “buck slips” at roll call and

emails. Tr. at 266–68. This testimony was corroborated by Officer Florio and

Sergeant Buckner. Tr. at 185–87, 359–60. Officer Cassino further testified that she

relied on her memory during legal trainings and did not take notes. Tr. at 268.

Unsurprisingly, she could not remember how many trainings or buck slips she

received during the year of Plaintiff’s arrest, nor what they were about. Tr. at 302–

03. Based on these facts, a reasonable jury could have discredited Officer Cassino’s

testimony that the PAPD never provided her with any information about the

Avitabile ruling, and concluded instead that she merely forgot about or failed to

attend to the training where it was presented.6

The Court also notes that, based upon a survey of relevant cases, it appears

that only one district court in the Second Circuit has ever relied on the Amore

exception to find that a defendant officer is entitled to qualified immunity. Barboza

v. D’Agata, 151 F. Supp. 3d 363 (S.D.N.Y. 2015). And even that case is readily

distinguishable from this one. In Barboza, the defendant police officers were ordered

to make the arrest by an assistant district attorney, and relied on his interpretation

of the legality of the statute under which they made the arrest. Id. at 372. Here,

Officer Cassino argues she was entitled to qualified immunity because she consulted

after the arrest with an assistant district attorney, who charged Plaintiff under

Section 265.01(1), and who was also apparently unaware of the Avitabile ruling. Def.

Mem. at 13. But Officer Cassino could not have relied (and did not rely) on the

assistant district attorney’s own ignorance of the law at the time of the arrest.

6 Sergeant Buckner also testified that he was never trained on the legality of

possessing a stun gun in New York following the Avitabile ruling. Tr. at 193. A jury

could easily have discredited this testimony as well, however, given that Sergeant

Buckner was unable to recall much about the trainings he received, and could not say

for sure whether or not he ever received a buck slip regarding Penal Law § 265. Tr.

at 199–204.

Qualified immunity turns on “whether an officer’s conduct was objectively

reasonable” in light of the “information possessed by the officer at the time of the

arrest.” Garcia, 779 F.3d at 92 (citation omitted); see also Zalaski, 723 F.3d at 389

(“[T]he inquiry is not how courts or lawyers might have understood the state of the

law at the time of the challenged conduct,” but what a “reasonable officer” would have

understood). Unlike the consultation in Barboza, which occurred prior to the arrest,

Officer Cassino’s consultation with the prosecutor’s office only after arresting

Plaintiff does not entitle her to qualified immunity.

Thus, because Plaintiff presented evidence that he repeatedly alerted Officer

Cassino to the fact that a federal court had declared Penal Law § 265.01(1)

unconstitutional as it relates to stun guns, she had a clearly established duty to

investigate that information before placing him under arrest, and was not entitled to

simply rely on her subjective belief that the statute remained in effect. Because

Officer Cassino does not fall within the narrow Amore exception to the general rule

that knowledge of a statute’s invalidity can be imputed to an officer in the field, her

decision to arrest Plaintiff was not covered by qualified immunity.

II. Remittitur

Officer Cassino also seeks reduction of the award of $90,000 for emotional pain

and suffering and to set aside the award of $110,000 for lost income or, in the

alternative, a new trial. Defendant’s motion as to damages is granted in part and

denied in part.

a. Standard of Review

Unlike a motion for judgment as a matter of law, “a new trial 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). Nevertheless, when

considering a motion for a new trial or for remittitur, a “high degree of deference” is

afforded to the jury’s credibility determinations. Raedle v. Credit Agricole Indosuez,

670 F.3d 411, 418–19 (2d Cir. 2012). Thus, where “a verdict is predicated almost

entirely on the jury’s assessments of credibility, such a verdict generally should not

be disturbed except in an egregious case, to correct a seriously erroneous result, or to

prevent a miscarriage of justice.” Id.

b. Emotional Damages

The calculation of damages is “the province of the jury.” Turley v. ISG

Lackawanna, Inc., 774 F.3d 140, 162 (2d Cir. 2014) (citation omitted). In determining

whether the jury awarded excessive damages, a district court must “view the evidence

and draw all factual inferences in favor of [Plaintiff],” and “accord substantial

deference to the jury’s determination of factual issues.” Dancy, 843 F.3d at 99

(citation modified). A district court may reduce a damages award only when it is “so

high as to shock the judicial conscience and constitute a denial of justice.” DiSorbo

v. Hoy, 343 F.3d 172, 183 (2d Cir. 2003). For guidance, district courts look to

“amounts awarded in other, comparable cases.” Id. (citation omitted). As the Second

Circuit emphasized, however, courts “need not average the high and low awards,” but

only assess whether the verdict “lies within the reasonable range.” Dancy, 843 F.3d

at 113 (citation modified); see also Ortiz, 137 F.4th at 73 (reviewing motion for

remittitur for “whether the award is so high as to shock the judicial conscience and

constitute a denial of justice”).

In an action for false arrest, “[s]ince the injury is in large part a mental one,

the plaintiff is entitled to damages for mental suffering, humiliation, and the like.”

Jaegly, 439 F.3d at 154 (citing W. Keeton et al., Prosser and Keeton on the Law of

Torts § 11, at 48 (5th ed.1984)). The Second Circuit has repeatedly affirmed

significantly greater amounts of emotional damages than Plaintiff was awarded for

similar false arrests. See Martinez v. The Port Auth. of N.Y. & N.J., 445 F.3d 158,

160 (2d Cir. 2006) (emotional damages of $200,000 for false arrest on public lewdness,

although Plaintiff was never physically injured); Gardner v. Federated Dep’t Stores,

Inc., 907 F.2d 1348, 1353 (2d Cir. 1990) (pain and suffering award of $150,000 for

false arrest by department store); Dancy, 843 F.3d at 115 (emotional damages of

$115,000 for false arrest). Other district courts in this Circuit have awarded damages

of hundreds of thousands of dollars for emotional suffering following false arrest. See,

e.g., Sulkowska v. City of New York, 129 F. Supp. 2d 274, 309 (S.D.N.Y. 2001)

(awarding $275,000 in emotional damages for false arrest); id. at 308 n.52 (collecting

cases); Thomas v. Kelly, 903 F. Supp. 2d 237, 264 (S.D.N.Y. 2012) (compensatory

damages of $125,000 for false arrest); Martinez v. Gayson, No. 95-CV-3788 (ILG),

1998 WL 564385, at *6 (E.D.N.Y. June 30, 1998) (remitting to $160,000 a

compensatory damages award for plaintiff who was falsely arrested by Port Authority

police and held in Port Authority jail for five hours); see also Bert v. Port Auth. of N.Y.

& N.J., 561 N.Y.S.2d 416, 416 (N.Y. App. Div. 1st Dep’t 1990) (affirming

compensatory damages award of $100,000 to plaintiff who was detained for three-

and-one-half hours by Port Authority police, and noting “racial overtones” of the

incident). Particularly taking into consideration the inflation that has taken place

since the above-referenced judgments were entered, see Martinez v. City of New York,

No. 16-CV-79 (NRM) (CLP), 2023 WL 4627739, at *18 (E.D.N.Y. July 19, 2023), it is

clear that $90,000 is well within the “reasonable range” for false arrest. Dancy, 843

F.3d at 113.

Here, the jury’s award for emotional damages was not excessive. Plaintiff, a

Black man who had never previously been arrested, was handcuffed and marched out

of the airport and his belongings confiscated. Tr. at 61–62, 74. Other travelers were

checking in at the time, and Plaintiff testified that it was “very embarrassing” to be

arrested “in front of all of these people.” Tr. at 59, 61–62. He was driven to the Port

Authority jail, where officers removed his sports coat and scarf, leaving him “really

cold” in the jail. Tr. at 69–70. He was then placed in the back of a police car, also in

the cold, where he waited for “quite a while” before being transported to Queens

Central Booking. Tr. at 72. While in transit, Plaintiff was not secured with a

seatbelt, and was forced to brace himself against bumps in the road while handcuffed.

Tr. at 72. He then stayed in jail overnight. Tr. at 74. Plaintiff has “nerve-racking”

anxiety about travel to this day. Tr. at 81. Plaintiff’s wife testified that after the

arrest, Plaintiff was “very on edge,” had trouble sleeping, and still became nervous

whenever he traveled. Tr. at 170. More than five years later, Plaintiff continued to

suffer the effects of his arrest. Tr. at 170.

Having observed Plaintiff’s demeanor and testimony over a three-day trial, the

Court finds no basis to conclude that his description of his own emotional damages

was the product of hyperbole or overstatement. The jury had ample grounds to find

that Plaintiff was deeply humiliated and profoundly disturbed by his experience of

being falsely arrested in front of a crowd of fellow air travelers while embarking on

an international business trip. Accordingly, the jury’s award of $90,000 for emotional

suffering is not excessive.

c. Lost Profits

In a false arrest action, economic damages are available for injuries inflicted

during the period of time between a plaintiff’s arrest and arraignment. Singer v.

Fulton Cnty. Sheriff, 63 F.3d 110, 117 (2d Cir. 1995) (“If there is a false arrest claim,

damages for that claim cover the time of detention up until issuance of process or

arraignment, but not more”) (citing W. Keeton et al., Prosser and Keeton on the Law

of Torts § 119, at 888 (5th ed. 1984)). To prove damages under New York law, a

plaintiff must show “(1) the fact or existence of damages to a reasonable certainty,”

and “(2) a stable foundation for a reasonable estimate of damages incurred.” Holland

Loader Co. LLC v. FLSmidth A/S, 769 F. App’x 40, 42 (2d Cir. 2019) (citation

modified); see also Davis v. Rodriguez, 364 F.3d 424, 433 (2d Cir. 2004) (looking to the

law of the state in which the arrest occurred to determine damages).

To begin, Plaintiff established the existence of his lost profits to a reasonable

certainty. Plaintiff testified that he had negotiated the PhaZZer deal over several

months, which included numerous phone calls with his Guinean counterparts; that

the parties had negotiated price, quantity, shipping logistics, and a timeframe for

delivery within 60 days; that there was an oral agreement for the sale; and that all

that remained was for Plaintiff to travel to Guinea and demonstrate the use of the

PhaZZer. Tr. at 20–24, 339–40. The jury’s determination that Plaintiff’s arrest was

the proximate cause of his failure to close the PhaZZer deal was well supported by

the evidence, and the Court defers to its finding. See Raedle, 670 F.3d at 418–19.

That leaves Plaintiff’s estimation of his lost profits from the PhaZZer deal.

“The general rule governing the recovery of lost profits in tort cases is that damages

proximately caused by the wrongful conduct of the defendant may be recovered if

plaintiff proves them with reasonable certainty and without speculation.” Wolf St.

Supermarkets v. McPartland, 487 N.Y.S.2d 442, 449 (N.Y. App. Div. 4th Dep’t. 1985)

(finding plaintiff’s proof, including a decade of sales records and sales projections,

showed lost profits by a reasonable certainty). “Although lost profits need not be

proven with mathematical precision, they must be capable of measurement based

upon known reliable factors without undue speculation.” Schonfeld v. Hilliard, 218

F.3d 164, 172 (2d Cir. 2000) (citation omitted).

It is true that, under New York law, “evidence of lost profits from a new

business venture receives greater scrutiny.” Holland Loader, 769 F. App’x at 43

(citation omitted). The so-called “new business rule” is an evidentiary rule that

“creates a higher level of proof needed to achieve reasonable certainty as to the

amount of damages” in a new business where “there is no track record upon which to

base an estimate.” Id. (citation modified); see also Schonfeld, 218 F.3d at 172. The

rule does not apply to a business that, while new in some respects, is “actually a

continuation” of the business from which proof of lost profits is drawn. Wolf St.

Supermarkets, 487 N.Y.S.2d at 449.

Here, the new business rule does not apply to Plaintiff’s approximation of lost

profits. Plaintiff testified that his company, Safe Bet Express, had been in business

with the Guinean government for years. Tr. at 20. Accordingly, while Plaintiff had

never previously sold electronic stun guns to the government of Guinea, his history

of similar sales made this transaction far from speculative. Plaintiff testified that in

his business experience, his profit margin typically amounted to 30 percent of gross

sales. Tr. at 326. He also supplied an invoice from a prior deal conducted with the

same buyer and supplier that showed his company earned a 33% sales commission.

Pl. Ex. 7 at 6. Plaintiff’s years-long “track record” of doing similar business in Guinea

means that, as an evidentiary matter, his proof of lost profits is not subject to the new

business rule. Holland Loader, 769 F. App’x at 43.

Defendant also objects to the admissibility and reliability of Plaintiff’s

testimony on the amount of his lost profits. When first questioned at trial about the

price and quantity of the PhaZZer deal, Plaintiff did not recall the exact amounts. Tr.

at 130–32. After reviewing an invoice that refreshed his recollection, Plaintiff then

testified that he had an independent recollection of the details of the anticipated

PhaZZer sale, and answered his counsel’s specific questions about the quantity and

pricing of the stun guns and accessories that were the subject of the parties’ oral

agreement. Tr. at 321–27. Plaintiff testified that the total value of the sales would

have been $289,000, and that his profit margin from such transactions was typically

30 percent of gross sales. Tr. at 326. Plaintiff also testified that he paid an additional

$145.80 for one night in a hotel after the false arrest caused him to miss his flight to

Guinea.7 Tr. at 328–29; Pl. Ex. 4

The Court finds no basis to revisit its earlier decision on the admissibility of

Plaintiff’s refreshed recollection testimony. Cf. Morse v. Fusto, No. 07-CV-4793 (CBA)

(RML), 2013 WL 4647603, at *26 (E.D.N.Y. Aug. 29, 2013), aff’d, 804 F.3d 538 (2d

Cir. 2015) (noting that defendants “had ample opportunity to draw out the perceived

weaknesses” in witnesses’ testimony). Defendant had the opportunity to cross-

examine Plaintiff on the calculations that appeared on the invoice and challenge the

credibility of his claim that he had an independent, refreshed recollection of the

details of the deal after he reviewed the invoice in court. Fed. R. Evid. 612(b); Tr. at

334–38. The Court also reminded Defendant of the option to impeach Plaintiff with

testimony from his deposition, at which he was unable to remember the prices or

quantities of the items to be sold to his Guinean counterparts. Tr. at 333; Pl. Dep.,

ECF No. 68-1 at 51. Instead, defense counsel indicated that she preferred to “stick

7 Plaintiff also testified that he incurred additional expenses in hiring an

attorney to defend against his criminal charges; however, as those expenses were

incurred in the period following his arraignment, they are not recoverable as damages

from his false arrest. See Singer, 63 F.3d at 117.

with just what the jury” had heard from Plaintiff the previous day when cross-

examined at trial. Tr. at 333. Defendant also had the opportunity to argue in

summation that Plaintiff’s testimony concerning his recollection of the details to

which he testified was not credible. Tr. at 410–11. Nevertheless, the jury apparently

credited Plaintiff’s testimony that his false arrest caused him to lose significant

profits from an anticipated $289,000 in gross sales. That determination was not

“egregious.” Raedle, 670 F.3d at 418.

The jury erred as a matter of law, however, in awarding Plaintiff $110,000 in

lost profits. Plaintiff testified that had he traveled to Guinea as scheduled and closed

the anticipated deal, his profits would have likely amounted to 30 percent of $289,000,

or $86,700. Including the cost of the hotel, the maximum amount Plaintiff could have

recovered, even if the jury credited his testimony and drew all reasonable inferences

from it, is $86,845.80 in economic damages. Accordingly, the Court finds that any

economic damages award above $86,845.80 is excessive.

CONCLUSION

Defendant’s Rule 50 motion for judgment as a matter of law is DENIED. The

Court does not disturb the jury’s finding as to Officer Cassino’s liability for false

arrest and further finds that she is not entitled to qualified immunity. Defendant’s

Rule 59 motion for a new trial is denied, on the condition that Plaintiff accept a

reduction of his economic damages award from $110,000 to $86,845.80, which,

combined with his award of emotional distress damages, would result in a total award

of $176,845.80 in compensatory damages. Plaintiff shall file a letter within thirty

days of the date of this Memorandum and Order indicating whether he accepts the

remittitur described above.

SO ORDERED.

/s/ Nina R. Morrison

NINA R. MORRISON

United States District Judge

Dated: December 18, 2025

Brooklyn, New York