# Opinion

> District Court, E.D. New York · January 27, 2026

URL: https://www.frixlaw.com/law-library/cases/11252540

## Case

- **Full name:** Joseph Jackson v. Detective Robert Dempsey; Detective Gary Abbondandelo; Detective John M. Holland; Detective Michael Herts; Detective Martin Alger; Detective Walter Swenson; Detective Anthony Kosior; Detective Sergeant Dan Severin
- **Court:** District Court, E.D. New York
- **Decided:** January 27, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------X
JOSEPH JACKSON,

Plaintiff, ORDER
18-CV-3007(JS)(AYS)

-against-

DETECTIVE ROBERT DEMPSEY;
DETECTIVE GARY ABBONDANDELO;
DETECTIVE JOHN M. HOLLAND;
DETECTIVE MICHAEL HERTS;
DETECTIVE MARTIN ALGER; DETECTIVE
WALTER SWENSON; DETECTIVE ANTHONY
KOSIOR; DETECTIVE SERGEANT DAN
SEVERIN1;

Defendants.
--------------------------------X
APPEARANCES
For Plaintiff: Baree N. Fett, Esq.
Gabriel Paul Harvis, Esq.
Elefterakis, Elefterakis & Panek
80 Pine Street, 38th Floor
New York, New York 10005

For Defendants: Janine A. Mastellone, Esq.
John Martin Flannery, Esq.
John Vitagliano, Esq.
Wilson, Elser, Moskowitz, Edelman & Dicker,
LLP
1133 Westchester Avenue
West Harrison, New York 10604
SEYBERT, District Judge:

Presently before the Court are seven motions in limine
filed by the parties to this case. Defendants Robert Dempsey,
Gary Abbondandelo, John M. Holland, Michael Herts, Martin Alger,

1 The Court GRANTS Defendants’ Motion to amend the case caption.
See ECF No. 425 at 12-13.
Walter Swenson, Anthony Kosior, and Dan Severin (“Defendants”)
have filed six separate motions in limine; Plaintiff Joseph Jackson
(“Plaintiff,” collectively with Defendants, the “Parties”) has
filed a single omnibus motion in limine. The Court proceeds to
rule on the Parties’ respective motions in Limine, listed below:

1. Defendants’ Motion in Limine to Preclude Reference to
Indemnification, Request for Specific Dollar Amount and
General Police Misconduct (ECF No. 411-1, the “References
Motion”);
2. Defendants’ Motion in Limine to Preclude Polygraph Evidence
and Witness Testimony (ECF No. 414, the “Polygraph & Dorsey
Motion”);
3. Defendants’ Motion in Limine to Preclude Testimony of
Plaintiff’s Expert Witnesses (ECF No. 417, the “Experts

Motion”);
4. Defendants’ Motion in Limine to Preclude Rule 404(B) and Rule
608(B) Evidence (ECF No. 420, the “Prior Acts Motion”);
5. Defendants’ Motion to Preclude Evidence of Purported
Innocence, Evidence, and Testimony from the Nassau County
District Attorney’s Office Conviction Integrity Unity
Reinvestigation, and to Bifurcate Trial (ECF No. 423, the
“Innocence & Bifurcation Motion”);
6. Defendants’ Motion in Limine to Preclude Evidence of
Dismissed Claims (ECF No. 425, the “Dismissed Claims
Motion”); and
7. Plaintiff’s Motion in Limine (ECF No. 432, the “Omnibus
Motion”).

BACKGROUND
I. FACTS

The Court assumes the parties’ familiarity with the
factual background giving rise to this civil rights action
(hereinafter, the “Action”), as documented in the summary judgment
order, which is incorporated by reference herein.2 See generally
Jackson v. Nassau County et al., No. 18-CV-3007, 2024 WL 4252047
(E.D.N.Y. Sept. 20, 2024) (hereafter, the “Summary Judgment
Order”). However, for context and convenience, the Court briefly
reiterates the relevant facts.

On March 20, 1994, Victim Steven Jason was murdered. In
December 1994, Plaintiff confessed to murdering Victim, but has
maintained his confession was coerced ever since. (Id. at 33-37.)
On December 9, 1996, Plaintiff was convicted of murdering Victim
and sentenced to 25-years-to-life in prison. (See Summary Judgment

2 The terms of art defined in the Court’s Summary Judgment Order
are, likewise, incorporated by reference herein, familiarity with
which is also presumed.
Order at 47-48.) In 2018, Nassau County ADA and Conviction
Integrity Unity (“CIU”) Chief Sheryl Anania moved to vacate
Plaintiff’s conviction, after the CIU learned Plaintiff never
received statements made by Larrea and Montes, who identified
Victim’s shooter as someone not matching Plaintiff’s description.
(Id. at 20-24, 49-51.)

Plaintiff subsequently brought the Action, alleging a
variety of constitutional and civil rights violations related to
the investigation into Victim’s murder. (Id. at 54-55.) After
various Court rulings, Plaintiff’s causes of action that remain
for trial are: (1) fabrication of evidence; (2) coercion; and (3)
failure to intervene claims, all related to Plaintiff’s
interrogation and subsequent confession to murdering Victim; and
(4) a Brady claim, related to the Larrea and Montes statements.

(Id. at 109-10.) As to the interrogation claims, Plaintiff alleges
he signed the confession statement Dempsey prepared only after he
was repeatedly beaten, threatened, and isolated from his attorney
during a multi-day interrogation, wherein he was also deprived of
sleep and food. (Id. at 33-37.) As to the Brady claim, Plaintiff
alleges Defendants withheld the Larrea and Montes statements,
which he believes are exculpatory. (Id. at 66-68.)
II. In Limine Motions, Generally
As thoroughly explained by Honorable Katherine B.
Forrest of the Southern District of New York:
In limine motions can play an especially
important and useful role in a jury trial,
allowing the parties to seek rulings in
advance as to issues that otherwise may
require extensive side bars or argument that
can interrupt the proceedings. See Palmieri
v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996);
accord Highland Capital Mgmt., L.P. v.
Schneider, 551 F. Supp. 2d 173, 176 (S.D.N.Y.
2008). Well-grounded in limine motions may
also require the parties to sharpen their
focus on the real issues in a case and
streamline their presentations. See In re
Methyl Tertiary Butyl Ether Prods. Liab.
Litig., 517 F. Supp. 2d 662, 666–67 (S.D.N.Y.
2007). . . . The Court’s role with regard to
such pretrial rulings is grounded in [R]ule
104 of the Federal Rules of Evidence. That
rule “requires that a court make a preliminary
determination of the admissibility of all
evidence.” SEC v. Tourre, 950 F. Supp. 2d
666, 675 (S.D.N.Y. 2013). In the context of
a pre-trial in limine ruling, challenged
evidence “should only be precluded when it is
‘clearly inadmissible on all possible
grounds.’” (quoting Commerce Funding Corp. v.
Comprehensive Habilitation Servs., Inc., No.
01 Civ. 3796, 2005 WL 1026515, at *3 (S.D.N.Y.
May 2, 2005)). In limine rulings are
“necessarily preliminary—and [ ] subject to
change when the case unfolds.” Id. at 676
(citing Highland Capital Mgmt., 551 F. Supp.
2d at 176; Commerce Funding, 2005 WL 1026515,
at *4). “A foundation may be laid contrary to
expectations; relevance may appear where
previously considered unlikely; the balancing
of factors under Rule 403 may change as events
in the courtroom drama unfold. The Court
recognizes that trials often contain
unexpected moments and developments, and[,
thus,] the parties should bear those
developments in mind when determining whether
to drop or re-raise an issue decided by this
order.” Id.
Luitpold Pharm., Inc. v. Ed. Geistlich Sohne A.G. Fur Chemische
Industrie, No. 11-CV-0681, 2015 WL 5459662, at *1 (S.D.N.Y. Sept.
16, 2015); see also Williams v. Geraci, No. 14-CV-5742, 2020 WL
5848738, at *5 (E.D.N.Y. Sept. 30, 2020) (discussing MIL standard).
III. Defendants’ Motions in Limine
A. The References Motion
1. Suggesting Indemnification & Reference to “County
Attorneys”
Defendants argue Plaintiff should be barred from (a)
suggesting the County will indemnify Defendants and (b) referring
to defense counsel as “County Attorneys.” (References Motion at
2-3.) Plaintiff asserts he does not plan to refer to defense
counsel as “county attorneys” and will only raise indemnification
if Defendants first suggest they will be personally liable. (ECF
No. 437, the “References Motion Opposition,” at 1.) The Court
accordingly DENIES this Motion as moot, but will revisit the issue
at trial if Defendants reference personal liability. Accord Ashley
v. Civil, No. 14-CV-5559, 2019 WL 1441124, at *10 (E.D.N.Y. Apr.
1, 2019).

2. Plaintiff’s Request for Specific Dollar Amount
Defendants additionally seek to bar Plaintiff from
requesting a specific dollar amount from the jury. (References
Motion at 3-4.) Plaintiff contends such guidance is particularly
warranted in complex wrongful conviction cases involving multiple
harms, such as loss of liberty and emotional injury. (References
Motion Opposition at 3-4.)

Whether a party may request a specific damage amount is
“best left to the discretion of the trial judge, who may either
prohibit counsel from mentioning specific figures or impose
reasonable limitations, including cautionary jury instructions.”
Lightfoot v. Union Carbide Corp., 110 F.3d 898, 912 (2d Cir. 1997).
Courts in this Circuit often allow plaintiffs to submit specific
damages figures for “compensable damages, such as previously
incurred or foreseeable medical expenses, if supported by
admissible evidence,” but “prohibit[t] [p]laintiff[s] from
submitting to the jury a request for a specific dollar amount

regarding [their] non-economic damages.” Woolfolk v. Baldofsky,
No. 19-CV-3815, 2022 WL 2600132, at *4 (E.D.N.Y. July 8, 2022).
The Court accordingly takes this approach and GRANTS this Motion
in part: Plaintiff may supply compensable damages figures if
substantiated or foreseeable, but may not request a specific non-
economic damages figure.
3. Unrelated Claims of Police Misconduct and
Terminology
Defendants seek to prohibit Plaintiff from referencing
unrelated claims of police misconduct and from using perceived
anti-police language such as “testilying,” “blue wall of silence,”
and related terms. (References Motion at 4-5.) Plaintiff states
he does not plan on using these terms, but believes a “broader
prohibition would unduly infringe on” his prosecution of the
Action. (References Motion Opposition at 5.) The Court

accordingly GRANTS this Motion without prejudice to renew and will
address any “broader prohibition” arguments if they arise at trial.
B. Polygraph & Dorsey Motion

1. All Polygraph Evidence Except From Defendant

Defendants seek to preclude investigation-related
polygraph evidence—including the fact polygraphs even took place—
from all individuals other than Plaintiff. (Polygraph & Dorsey
Motion at 1-3 (citing, e.g., United States v. Fraser, 206 F. App’x
100, 101 (2d Cir. 2006) (instructing Supreme Court and Second
Circuit “have repeatedly upheld the exclusion of polygraph
evidence because of its unreliability, its potential to confuse
the issues and mislead the jury, and the danger of unfair prejudice
posed by its admission”)).) Plaintiff argues polygraph evidence,
while unreliable and inadmissible for its truth, is relevant to
illustrate how Defendants selectively used polygraphs to further
coercive interrogation tactics and as bad-faith manipulation of
evidence. (ECF No. 438, “Polygraph & Dorsey Motion Opposition,”
at 2-4.)

Although courts in this Circuit typically do not admit
polygraph results, they are more flexible for non-result polygraph
evidence. For example, in Kogut v. County of Nassau, 789 F.3d 36,
47-48 (2d Cir. 2015), this Court permitted parties to show
polygraphs had taken place during a police investigation, but
barred their results. Kogut, 789 F.3d at 47-48. The Court
accordingly GRANTS the Motion in part on this basis: Parties may
introduce evidence that polygraphs took place but may not introduce
polygraph results.3

2. Takita Dorsey’s Testimony
Per Plaintiff’s characterization in the proposed Joint
Pre-Trial Order (“PTO”), “Takita Dorsey is described in the
December 18, 1994 statement attributed to [P]laintiff as having
served as a messenger between [P]laintiff and Tony Jackson
[(“Tony”)], but Ms. Dosey truthfully denied these allegations in
a 1995 polygraph exam administered by NCPD. Ms. Dorsey will testify
about her recollection of the events.” (ECF No. 405, the “Proposed

3 The Court addresses Plaintiff’s polygraph evidence in a separate
section of this M&O.
PTO,” at 7.) Defendants assert such testimony does not relate to
the narrowed scope of the trial, which focuses on the alleged
coerced confession and Brady claims, but, instead pertains to
Plaintiff’s innocence, especially because the prosecutors did not
make a charging decision based on Dorsey’s testimony. (Polygraph
& Dorsey Motion at 3-4 (citing Haskins v. Jackson, No. 15-CV-2016,

2020 WL 6705640, at *10 (E.D.N.Y. Nov. 10, 2020)).) Plaintiff
considers Dorsey’s testimony relevant because it undermines
Defendants’ drafted confession, as it purportedly shows
Defendants’ state of mind and selective use of polygraph evidence.
(Polygraph & Dorsey Motion Opposition at 9-12.) Plaintiff also
attempts to cast Dorsey’s testimony as evidence of Plaintiff’s
innocence. (Id. at 11-12.)
This claim is accordingly GRANTED in part and DENIED in

part such that Dorsey’s polygraph result is inadmissible, but she
may testify to her experiences with the investigation and can
assert she did not pass messages between Plaintiff and Tony. Such
testimony may bear some relevance to the coercion claim, given her
interactions with Defendants.
C. Experts Motion4

1. Dr. Jennifer Dysart
Plaintiff proffers Dr. Jennifer Dysart (“Dr. Dysart”) as
an expert on eyewitness identifications. (ECF No. 416-1, the
“Dysart Report.”) Dr. Dysart is an Associate Professor of
Psychology at John Jay College and has researched, taught, and
testified extensively on the subject. (See id. at 1.) The Dysart
Report discusses how variables beyond law enforcement control
(“Estimator Variables”) and within law enforcement control
(“System Variables”) render some eyewitness identifications
unreliable. (Id. at 5.) She discusses both categories generally
and as applied to Skwanitra Witherspoon’s identification of
Plaintiff. (Id.) In Dr. Dysart’s view, Estimator Variables such
as limited opportunity to observe the shooter, stress induced by
witnessing the murder, the nine-month delay between the Victim’s
murder and investigation, and the mismatch between Witherspoon’s
description and Plaintiff’s physique render her identification of
Plaintiff unreliable. (Id. at 9-13.) As to System Variables, Dr.
Dysart states the photo array, line-up processes, and law
enforcement instruction and feedback undermined the reliability of

Witherspoon’s identification. (Id. at 13-22.) Plaintiff asserts
Dr. Dysart is qualified to provide relevant scientific insights to

4 Defendants initially objected to Plaintiff’s damages expert,
Kristin Kucsma, but subsequently withdrew the objection. (ECF No.
447 at 11.)
assist the jury’s assessment of materiality. (ECF No. 439, the
“Expert Witness Opposition,” at 14 (citing United States v. Nolan,
956 F.3d 71, 82 (2d Cir. 2020); Rosario v. City of N.Y., No. 18-
CV-4023, 2021 WL 1930293 (S.D.N.Y. May 13, 2021) (admitting similar
Dr. Dysart eyewitness identification testimony)).)

Defendants contend Dr. Dysart’s analysis should be
excluded, as it is not relevant to Plaintiff’s coercion or
materiality claims. (Experts Motion at 5-6.) Because all claims
related to the photo array and line-up have been dismissed,
Defendants argue Dr. Dysart’s testimony relates primarily to
dismissed claims and is thus not a “fit” on Daubert grounds. (Id.
at 6-7 (citing In re Refco Inc. Sec. Litig., No. 07-MD-1902, 2012
WL 7007795, at *5 (S.D.N.Y. Nov. 29, 2012), report and
recommendation adopted sub nom., In re Refco Sec. Litig., No. 07-

MDL-1902, 2013 WL 452400 (S.D.N.Y. Feb. 6, 2013)).) To the extent
the testimony relates to non-dismissed claims, Defendants maintain
Dr. Dysart relays “an inappropriate factual narrative” not subject
to expert testimony. (Id. at 7-8 (citing Scentsational Techs.,
LLC v. Pepsi, Inc., No. 13-CV-8645, 2018 WL 1889763, at *4
(S.D.N.Y. Apr. 18, 2018), aff’d sub nom., ScentSational Techs. LLC
v. PepsiCo, Inc., 773 F. App’x 607 (Fed. Cir. 2019)).) Defendants
alternatively assert Dr. Dysart should be precluded on Rule 403
grounds because her testimony risks creating unfair prejudice,
confusing the issues, and misleading the jury by implying they are
liable for previously-dismissed theories misconduct and providing
speculative analysis. (Id. at 9-11.)

To be admissible under Rule 702, an expert’s testimony
must “fit” the facts of the case. Daubert v. Merrell Dow
Pharmaceuticals, 509 U.S. 579, 591 (1993). The Systems Variable
analysis is not a strong “fit,” as this Court dismissed the photo
array and line-up claims. At the very least, such testimony has
strong potential to confuse the jury. Refco, 2012 WL 7007795, at
*5 (“The expert opinions here, to the extent they evaluate the
merits of dismissed claims, are simply seeking to relitigate
adverse determinations rendered by the court in this case.”). But
the Estimator Variables testimony could be helpful to the Brady
claim, as “[a] lay juror would not know . . . about the likely
impact on perception of extreme stress and weapon focus” in

assessing eyewitness reliability. Nolan 956 F.3d at 82. Hence,
Dr. Dysart may testify as to Estimator Variables generally, but
she may not narrate facts or discuss witnesses in the case at all.
Defendants’ Motion on this point is thus GRANTED in part and DENIED
in part.
2. Dr. Hayley Cleary

Dr. Hayley Cleary is an Associate Professor of Criminal
Justice at Virginia Commonwealth University. (ECF No. 391-15, the
“Cleary Report,” at 1.) Dr. Cleary specializes in police
interrogation tactics, particularly as they relate to false or
coerced confessions. (Id.) The Cleary Report concludes
Plaintiff’s confession may have been coerced because numerous
“risk factors” for a coerced confession were present throughout
the investigation. (See generally id.) Although Plaintiff cites
to several cases, mostly from other circuits and state courts,

upholding coerced confession expert testimony (see Experts
Opposition at 19-24), this Court explained in Kogut that Second
Circuit courts “have consistently considered, and excluded, expert
testimony on the topic of false confessions.” Kogut v. County of
Nassau, No. 06-CV-6695, 2013 WL 3820826, at *7 (E.D.N.Y. July 22,
2013) (collecting cases), aff’d in part, 789 F.3d 36 (2d Cir.
2015), and aff’d in part sub nom., Restivo v. Hessemann, 846 F.3d
547 (2d Cir. 2017). Because such testimony is disfavored in the
Second Circuit, the Court accordingly GRANTS Defendants’ Motion as
to Dr. Cleary, and thereby excludes his testimony.

3. Jeffrey Noble
Plaintiff’s police procedures expert, Jeffrey Noble
(“Noble”), contends Defendants’ investigation conduct departed
from generally accepted police procedures. (ECF No. 439-12, the
“Noble Report.”) Noble concludes Defendants: conducted an
investigation biased toward confirming Plaintiff’s guilt; failed

to investigate the Larrea and Montes statements; failed to properly
preserve and disclose statements such as: a tip from Elisa Valdez,
notes from an interview with Peddie Baldwin, and the Larrea and
Montes 911 call; and employed tactics that risked obtaining a false
confession.5 (See generally Noble Report.) Noble frames many of
these conclusions as departures from what a “reasonable police
officer” would do in the circumstances. (Id.)

Defendants contend Noble’s testimony should be excluded
for largely opining on dismissed investigation-related issues.
(Experts Motion at 18.) Defendants also characterize Noble’s
“reasonable officer” claims as impermissible legal conclusions.
(Id. at 19 (citing, e.g., Callahan v. Wilson, 863 F.3d 144, 153
(2d Cir. 2017) (precluding expert testimony that an officer “did

not act reasonably under the circumstances” because such testimony
“intrude[s] on the jury’s exclusive role as the finder of
facts”)).) Plaintiff, on the other hand, maintains Noble’s
testimony provides the jury with a baseline understanding of
accepted investigative standards and can help the jury determine
whether Defendants’ departures from those standards were reckless
or intentional. (Experts Opposition at 28-29.) Any discussion of

5 Specifically, Valdez’s tip was found neither material nor
exculpatory, Plaintiff waived his argument as to Baldwin, and the
Court granted summary judgment on the spoliation claim. (See
Summary Judgment Order at 66-67 n.16, 110.)
dismissed claims, in Plaintiff’s view, serves “as circumstantial
evidence of [D]efendants’ liability and state of mind.” (Id.)

In Restivo v. Hessemann, 846 F.3d 547, 579 (2d Cir.
2017), the Second Circuit explained “expert testimony on
applicable professional standards is relevant because it ‘can give
a jury a baseline to help evaluate whether a defendant’s deviations
from those standards were merely negligent or were so severe or
persistent as to support an inference of intentional or reckless
conduct that violated a plaintiff’s constitutional rights.’” (Id.
at 3 (citing Restivo, 846 F.3d at 580 (additional citation
omitted).) Consistent with Restivo, the Court GRANTS Defendants’
Motion in part and DENIES it in part. Therefore, Noble: (a) may

not testify as to the (i) Valdez tip, (ii) Baldwin interview, (iii)
Witherspoon identification processes, and (iv) the spoilation
claims, which are likely to confuse the jury with issues not being
tried; (b) may not testify as to what a “reasonable police officer”
would do in a given circumstance; but (c) may testify as to whether
actions relevant to the coercion or Brady claims strayed from
police protocols, as not all lay jurors have knowledge of
specialized practices around policing.
D. Prior Acts Motion

1. Evidence Related to Defendants’ Disciplinary Records
or Civilian Complaints
Defendants contend Plaintiff should be barred from
asking about several proposed exhibits related to Defendants’
police disciplinary histories or civilian complaints. (Prior Acts
Motion at 6-8.) Plaintiff states he will not offer such evidence.
(ECF No. 440, the “Prior Acts Motion Opposition,” at 2.)
Defendants’ Motion on this point is accordingly DENIED as moot.
2. Evidence Related to Robert Moore & Jose Anibal
Martinez
Defendants move to preclude Plaintiff from proffering
testimony or documents about Robert Moore and Jose Anibal Martinez,
two individuals unrelated to the facts of the case but who have
had experiences with particular Defendants. (Prior Acts Motion at
8-11.) Plaintiff has similarly stated he does not seek to offer
such testimony. (Prior Acts Motion Opposition at 7-8.) Therefore,
Defendants’ Motion on this point is also DENIED as moot.
3. Evidence Related to John Restivo, Dennis Halstead,
and John Kogut
Plaintiff seeks to proffer the testimony of John
Restivo, Dennis Halstead, and John Kogut, three individuals whose
convictions on an unrelated 1984 murder were subsequently vacated
after DNA evidence proved their innocence. (Prior Acts Motion
Opposition at 1-2); Kogut, 894 F. Supp. 2d at 233-34. Because
Kogut falsely confessed to that unrelated murder after being
interrogated by Dempsey, Plaintiff seeks, pursuant to Federal
Rules of Evidence 404(b) and 608(b), to have Kogut, Restivo, and
Halstead testify to demonstrate a purported pattern of Dempsey’s
“of obtaining and untruthfully defending false confessions.”
(Prior Acts Motion Opposition at 10); Restivo, 846 F.3d at 554.

Defendants maintain such evidence is impermissible propensity
evidence. (Prior Acts Motion at 12-13.)
In Kogut, this Court denied a request to permit similar
unrelated witnesses to testify against Dempsey, explaining “the
jury very likely would have been confused, by, and considered
evidence regarding, Dempsey’s prior conduct in other cases to

conclude that Dempsey acted in conformity therewith and used
coercive tactics to obtain false witness statements in this case.
The prejudicial impact of such testimony cannot be understated.”
Kogut, 2013 WL 3820826, at *14. The Court takes the same approach
here. The Restivo, Halstead, and Kogut cases are too distant in
time and distinct in kind to be considered pure “pattern” evidence
under Rule 404(b), which typically involves clear “earmark[s of]
the accused” or repetitive practice such as “applying handcuffs
too tightly, falsely claiming injury from the citizen to cover up
his own inappropriate use of physical force, and filing false
charges for the same purpose.” Carroll v. Trump, 124 F.4th 140,
168 (2d Cir. 2024) (quoting United States v. Sliker, 751 F.2d 477,
487 (2d Cir. 1984)); Ismail v. Cohen, 706 F. Supp. 243, 253
(S.D.N.Y. 1989), aff’d, 899 F.2d 183, 188-89 (2d Cir. 1990).
Moreover, there has been no finding Dempsey was dishonest in this
case, thus, rendering potential witnesses Restivo, Halstead, and
Kogut a poor fit for Rule 608(b) testimony. If the Court were to

allow Restivo, Halstead, and Kogut to testify, it could lead to
the Parties having to conduct a “trial within a trial” on a
completely unrelated set of facts. That will not do. Defendants’
Motion is accordingly GRANTED on this point.
4. Evidence Related to Shonnard Lee
Plaintiff seeks to proffer the testimony of and evidence
related to Shonnard Lee, who is also unrelated to the case, on

similar grounds. (Prior Acts Motion at 14-15.) In 1997, Lee signed
a homicide confession statement authored by Dempsey. (Omnibus
Motion at 4.) Although criminal charges were initially brought
against Lee, they were dismissed in 1998 after he alleged he did
not know he was signing a confession statement. (Id. at 5-6; ECF
No. 431-3.) Later, Lee prevailed in a civil suit against Dempsey,
where the jury found Lee proved Dempsey (a) misled him about what
he was signing, and (b) knew the confession contained false
information and would likely influence a jury’s decision. (Id.)
Defendants oppose Lee’s testimony and any evidence related to his
case. (Prior Acts Motion at 15 (citing Kogut, 2013 WL 3820826, at
*13-14 (prohibiting testimony and documents related to Lee)).)
Except as to the jury’s credibility finding in the civil suit,
which is discussed separately, the Court GRANTS Defendants’ Motion
on this claim. As with Restivo, Halstead, and Kogut, the proposed
Lee evidence is too remote in time and different in kind to be

considered Rule 404(b) evidence. See Kogut, 2013 WL 3820826, at
*14.
5. Evidence Related to Allegations From Other Criminal
Defendants
Defendants move to bar Plaintiff from soliciting
testimony from individuals who have discussed their experiences
with Defendants in public news reports, which Plaintiff contends
he does not plan to introduce. (Prior Acts Motion at 17-18; Prior
Acts Motion Opposition at 12.) This Motion is accordingly DENIED
as MOOT.

6. Evidence Related to Darryl Grate, Charles Clink, and
Joseph Porto
Defendants seek to bar the testimony and materials
related to Darryl Grate, Charles Clink, and Joseph Porto, three
additional individuals who had experiences with Dempsey. (Prior
Acts Motion at 19.) Because Plaintiff “does not intend to call these
witnesses,” Defendants’ Motion is DENIED as moot. (Prior Acts
Motion Opposition at 12.)
7. Evidence Related to Peddie Jenkins’ Purported
Convictions and Prior Arrest History
Defendants move to preclude Jenkins’ arrests that took
place after the Jason murder. (Prior Acts Motion at 19-20.)
Because Plaintiff “does not intend to cross-examine Peddie Jenkins
with remote criminal convictions for drugs or violence that do not
directly bear on his character for truthfulness,” this Motion is
DENIED as moot. (Prior Acts Motion Opposition at 12.)

E. Innocence & Bifurcation Motion
1. Evidence of Plaintiff’s Innocence
Defendants contend Plaintiff should be precluded from
presenting any testimony, evidence, or arguments asserting his
innocence of the Victim’s murder, or asserting he was wrongfully
convicted, as actual innocence is not relevant to the coercion or
Brady claims. (Innocence & Bifurcation Motion at 2-3 (citing
Nnodimele v. Derienzo, No. 13-CV-3461, 2016 WL 3561708, at *10
(E.D.N.Y. June 27, 2016) (ruling “actual innocence is irrelevant”
to fair trial and fabrication claims and probative value of
innocence evidence “is substantially outweighed by the danger of
confusing the issues, misleading the jury, and wasting time”)).)
Defendants also observe Brady requires a showing only that due
process was violated and “materiality does not depend on factual
innocence, but rather what would have been proven absent the
violation.” Poventud v. City of N.Y., 750 F.3d 121, 134 (2d Cir.
2014); see also Leka v. Portuondo, 257 F.3d 89, 104 (2d Cir.2001)
(quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995) (instructing
Brady inquiry “is not whether the defendant would more likely than
not have received a different verdict with the evidence, but
whether in its absence he received a fair trial, understood as a
trial resulting in a verdict worthy of confidence”)).

In arguing in favor of admitting innocence evidence,
Plaintiff cites to cases mostly from other jurisdictions, but
argues Restivo referred to such evidence as “important backdrop
for their claims at trial.” (Innocence & Bifurcation Motion
Opposition at 4 (quoting Restivo, 846 F.3d 547 at 559).) To the
extent Defendants rely on cases such as Nnodimele that forbid
innocence evidence, Plaintiff argues the Second Circuit’s “helpful

backdrop” reference overturned them in Restivo. (Innocence &
Bifurcation Motion Opposition at 6-7.) Because innocence does
not go to any element of Plaintiff’s remaining claims, the Court
GRANTS Defendants’ Motion on this point. As Nnodimele observed,
allowing in substantial evidence on facts not material to any
element would likely confuse the issues and waste the jury’s time.
Nnodimele, 2016 WL 3561708, at *11. Moreover, no court has ever
interpreted Restivo’s passing reference to innocence evidence as
establishing a broader rule or overturning Nnodimele. By contrast,
the Second Circuit has emphasized in Poventud, Leka, and elsewhere,
that innocence is not relevant to a Brady claim. Poventud, 750
F.3d at 134; Leka, 257 F.3d at 104.

2. Testimony of Woody Miller
Defendants seek to bar testimony or evidence from Woody
Miller (“Miller”), who has proffered a two-page affidavit
explaining his account of the Jason shooting and experience with
the shooting investigation. (Innocence & Bifurcation Motion at 3-
4.) In his affidavit, Miller avers he witnessed a hooded man run
away from the scene of Victim’s shooting on March 20, 1994, and
while he did not see who it was, he did not believe it was Plaintiff
based on his experiences with him. (ECF No. 389-12, “Miller Aff.,”
¶¶ 5-19.) The next day, Miller claims police visited his home,
where he told investigators he had not seen the shooting and could

not identify the perpetrator; the police subsequently came back to
his home a few days later and pressured him to identify Plaintiff
as the perpetrator. (Id. ¶¶ 26-31.) Plaintiff argues Miller is a
relevant eyewitness to the shooting and is accordingly a Rule 602
eyewitness with personal knowledge of events. (Innocence &
Bifurcation Motion Opposition at 7-8 (citing United States v. Cuti,
720 F.3d 453, 458-59 (2d Cir. 2013)).) Plaintiff also points out
Defendants failed to depose Miller throughout the process, which
could have given them the opportunity to obtain additional
testimony from him. (Id. at 8.)
Defendants’ Motion is DENIED as to this claim. Although
Miller’s affidavit is lacking in detail, his experiences with the
investigation may provide some minimal probative value as to the
coercion claim. The lack of detail is better addressed through
cross examination; it cannot be addressed through preclusion.

3. CIU Reinvestigation Evidence
Defendants seek to preclude several categories of
testimony and documents related to the NCDA CIU’s reinvestigation
of Plaintiff’s conviction. (Summary Judgment Order at 49-50.) For
the reasons discussed below, the Court GRANTS Defendants’ Motion
as to these claims.

i. Testimony of Tammy Smiley
Defendants argue Tammy Smiley (“Smiley”), an ADA who
worked with the CIU, should be precluded from testifying about the
reinvestigation because: Plaintiff failed to disclose her as a
witness under Rule 26(a); Smiley lacks personal knowledge of the
remaining issues; and Smiley had only a limited role in the CIU
reinvestigation. (Innocence & Bifurcation Motion at 5-6.)
Plaintiff identified Smiley as an impeachment witness, who he does

not intend to call in his case-in-chief. (Innocence & Bifurcation
Motion Opposition at 14.) For the reasons discussed, infra, as to
Anania, Defendants’ Motion as to Smiley is GRANTED.
ii. Testimony of Sheryl Anania
According to the Proposed PTO, Plaintiff seeks to
proffer Anania to testify about the CIU’s reinvestigation
findings. (Proposed PTO at 5.) During the 2017 reinvestigation,
Anania: reviewed files related to Plaintiff’s case; interviewed
witnesses; and prepared an internal memorandum identifying the
Larrea and Montes statements as potentially material. (ECF No.

441-3, “Anania Memo,” at 11.) Defendants maintain Anania’s
testimony: (1) is irrelevant to the coercion and Brady claims; (2)
presents many hearsay issues; (3) infringes on the jury’s role to
ascertain Brady materiality; and (4) as to her opinion regarding
Plaintiff’s conviction and Brady materiality, is not a “factual
finding” admissible under Rule 803(8)(A)(iii). (Innocence &
Bifurcation Motion at 6-8 (citing Nnodimele, 2016 WL 3561708, at
*11) (prosecutor may not testify “regarding reasons for actions
taken or not taken by the New York County District Attorney's
Office” because the jury must decide on the weight of withheld
evidence)).)

Plaintiff counters, arguing Anania was central to the
vacatur decision and will not testify to Brady materiality.
(Innocence & Bifurcation Motion Opposition at 11-12.) He
maintains, because Anania developed relevant facts outside of the
trial record, such as the Larrea and Montes statements, her
testimony is particularly relevant. (Id.) In support of the
admission of Anania’s testimony, Plaintiff relies upon Galloway v.
County of Nassau, 589 F. Supp. 3d 271, 279 (E.D.N.Y. 2022), a
separate civil case brought by a plaintiff who sought to rely upon
Anania’s testimony and successfully moved to disqualify the firm
that represented her and Nassau County. Galloway, 589 F. Supp. 3d

at 274. In finding a conflict-of-interest related to
representation, the Galloway Court explained “[o]ne can easily
imagine the plaintiff calling ADA Anania at trial and confronting
her with her testimony, placing Defense Counsel in the impossible
position of having represented a witness earlier in the proceedings
who, now before a jury, is testifying directly against the
Defendants.” Id. at 274 (citation omitted).

The Court GRANTS Defendants’ Motion as to Anania. As
the Nnodimele Court explained when assessing proposed CIU
testimony, it “intrudes upon the jury’s role in assessing the
materiality of the allegedly withheld evidence.” Nnodimele, 2016
WL 3561708, at *11. Much of Anania’s proposed testimony here
relates to her evaluation of evidence, such as the Larrea and
Montes statements, and her interviews with witnesses. To the
extent Plaintiff wishes to obtain testimony based on what certain
witnesses told Anania, those witnesses can speak for themselves.
Moreover, Plaintiff’s reliance upon Galloway, 589 F. Supp. at 274
is unavailing, as that decision addressed attorney conflicts and
not trial evidence.

iii. Other Evidence from the NCDA’s CIU
Investigation
Defendants object to admitting additional materials from
the NCDA’s CIU investigation, for similar reasons as the Anania
testimony. (Innocence & Bifurcation Motion at 8-10.) In opposing
the Motion, Plaintiff frames the CIU investigation documents as
Federal Rule of Evidence 803(8) materials, which renders
admissible materials prepared pursuant to “a matter observed while
under a legal duty to report.” (Innocence & Bifurcation Motion
Opposition at 9-12 (citing Fed. R. Evid. 803(8); Martinez v. City
of N.Y., No. 16-CV-0079, 2022 WL 20042798, *5 n.6 (E.D.N.Y. Dec.
4, 2022); Bridgeway Corp. v. Citibank, 201 F.3d 134, 143 (2d Cir.
2000)).) Plaintiff refers to the internal NCDA memo prepared to
summarize the facts of the case as the “Anania Memo,” which serves
as an investigation for Rule 803(8) purposes. (Innocence &
Bifurcation Motion Opposition at 9-15; Anania Memo.) Defendants
contend the “Anania Memo” was merely an informal report, not an

investigation for purposes of Rule 803(8), and that specific notes
on witness interviews are cumulative, speculative, or improper for
impeachment since they were not authored, subscribed to, or adopted
by the interviewees. (Innocence & Bifurcation Motion at 9-10; see
also ECF No. 21, the “Innocence & Bifurcation Reply,” at 6-7.)
The Court GRANTS Defendants’ Motion on this claim. The
“Anania Memo” and many of its underlying materials relay the views
of witnesses, who are available to testify. (see ECF No. 441-3.)
Plaintiff does not cite to any cases indicating an internal memo
of this kind suffices for Rule 803(8) purposes, especially where
the memo predominantly relays statements from third parties. See

Parsons v. Honeywell, Inc., 929 F.2d 901, 907 (2d Cir. 1991)
(factual findings based on the public official’s “own observations
and knowledge may be admitted but . . . statements made by third
persons under no business duty to report may not”) (quoting United
States v. Pazsint, 703 F.2d 420, 424 (9th Cir.1983).) And, even
if the Anania Memo did satisfy the requirements for a Rule 803(8)
report, the “Anania Memo” has minimal probative value since it is
largely duplicative to what the witnesses may testify, as well as
runs the risk of unfairly bolstering witness statements, as each
statement included in the memo could be perceived as having the
County’s endorsement. See Fed. R. Evid. 403.

4. Bifurcation of Trial
Defendants ask the Court to exercise its discretion
under Federal Rule of Civil Procedure 42(b) to bifurcate the trial
into separate liability and damages phases. (Innocence &
Bifurcation Motion at 10-11 (citing Fed. R. Civ. P. 42(b).) In
Defendants’ view, bifurcation is justified because the evidence
regarding liability and damages are distinct, and certain
liability findings may eliminate the need for a damages proceeding
altogether. (Id at 11-13.) Defendants also observe courts have
previously bifurcated similar civil rights proceedings. (Id. at
10-11 (citing Restivo, 846 F.3d at 558; Nnodimele, 2016 WL 3561708,
at *2).) Plaintiff would not be prejudiced under bifurcated

proceedings and may even benefit from them, Defendants contend,
given the relevance of incarceration and arrest history to damages.
(Id. at 14.)
On the other hand, Plaintiff argues Defendants have not
rebutted the presumption of a unified trial under Rule 42(b).
(Innocence & Bifurcation Motion Opposition at 16-17.) Plaintiff

also considers liability and damages evidence to be inextricably
intertwined, based upon his belief that overlapping evidence will
show willfulness meriting punitive damages. (Id. at 17-20.) In
Plaintiff’s view, having to litigate a “substantially similar”
case twice will result in “catastrophic” prejudice to him. (Id.
at 20-21.)

The Court must address the following factors when
addressing whether to bifurcate a trial:
(1) whether the issues are significantly
different from one another; (2) whether the
issues are to be tried before a jury or to the
court; (3) whether the posture of discovery on
the issues favors a single trial or
bifurcation; (4) whether the documentary and
testimonial evidence on the issues overlap;
and (5) whether the party opposing bifurcation
will be prejudiced if it is granted.
Dallas v. Goldberg, 143 F. Supp. 2d 312, 315 (S.D.N.Y. 2001),
opinion modified on denial of reconsideration, 2002 WL 1013291
(S.D.N.Y. May 20, 2002). These factors weigh in favor of
bifurcation. First, as in Nnodimele, “the issues presented at the
liability and damages phases are largely if not entirely distinct:
the former will require the jury to determine the conduct of the
defendants, whereas the latter will require the jury to assess the
effect of that conduct on plaintiff.” Nnodimele, 2016 WL 3561708,
at *2. Moreover, the Proposed PTO indicates Plaintiff intends to
proffer little overlapping testimony: his only damages witnesses
are himself and two experts, neither of whom are listed for the
liability portion. (Proposed PTO at 9.) Limiting damages testimony
only to areas where it is explicitly needed would also eliminate
the need for unnecessary testimony and promote judicial
efficiency, because as discussed below, Plaintiff seeks to proffer
several categories of evidence relevant only to damages.
Accordingly, in its discretion, Defendants’ Motion on this point
is GRANTED. See, e.g., In re Sept. 11 Litig., 802 F.3d 314, 339
(2d Cir. 2015) (“Decisions to bifurcate trials . . . are authorized
by Federal Rule of Civil Procedure 42(b) and are typically well
within the discretion of district courts.”).
F. Dismissed Claims Motion
Defendants’ sixth motion in limine generally asserts
Plaintiff should be precluded from introducing evidence related to
dismissed claims, along with evidence irrelevant to the current
theories of liability. (Dismissed Claims Motion at 1-2.) On this
basis, Defendants seek to preemptively bar admission of dozens of
specific trial exhibits. (see generally Dismissed Claims Motion.)

Plaintiff states he will not pursue dismissed claims, but takes
issue with preemptive exclusion of large swaths of documents. (See
generally ECF No. 442.)
The Court agrees Plaintiff cannot argue as to dismissed
claims and accordingly GRANTS the Motion without prejudice to
renew. Nonetheless, the Parties are on NOTICE: Because development

of the factual record at trial may make some exhibits relevant in
ways the Court cannot currently predict, Plaintiff may renew his
arguments for admissibility of these exhibits if warranted.
G. Omnibus Motion

1. Information on Dempsey’s Adverse Credibility Findings
As previously discussed, the jury in Shonnard Lee’s
civil case found Dempsey: (a) misled Lee as to the nature of the
confession statement he was signing; and (b) knew the statement
contained false information and would likely influence a jury’s
decision. (Omnibus Motion at 5-6.) Plaintiff seeks to admit this
finding to: (c) impeach Dempsey’s credibility under Rule 608(b);
and (d) show motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident under Rule
404(b). (Id. at 3-4.) Plaintiff emphasizes the probative value of
this finding—especially in light of the credibility dispute over
the circumstances of Plaintiff’s confession—and argues excluding

this evidence would mislead the jury by providing Dempsey with
undeserved baseline credibility. (Id. at 7-8, 10-11.) Defendants
move to bar the jury’s finding, arguing the Lee events do not
directly bear on veracity because they involved a decades-old
preponderance-of-the-evidence finding which, in any event, is
remote in time and not factually similar to the actions in this
case. (ECF No. 436, the “Omnibus Opposition,” at 6-10.)
Permitting cross examination on this point would, in Defendants’
view, lead to a distracting mini-trial on collateral matters,
consuming undue time and risking jury confusion. (Id. at 7.)

Because the Court has already addressed the Rule 404(b)
question, it ascertains whether this is acceptable impeachment
evidence under Rule 608(b). Second Circuit courts ascertaining
potential Rule 608(b) evidence apply the following factors, as
explained in United States v. Cedeno, 644 F.3d 79, 82 (2d Cir.
2011):
(1) whether the prior judicial finding
addressed the witness’s veracity in that
specific case or generally; (2) whether the
two sets of testimony involved similar subject
matter; (3) whether the lie was under oath in
a judicial proceeding or was made in a less
formal context; (4) whether the lie was about
a matter that was significant; (5) how much
time had elapsed since the lie was told and
whether there had been any intervening
credibility determination regarding the
witness; (6) the apparent motive for the lie
and whether a similar motive existed in the
current proceeding; and (7) whether the
witness offered an explanation for the lie
and, if so, whether the explanation was
plausible.
United States v. White, 692 F.3d 235, 249 (2d Cir. 2012) (citing
Cedeño 644 F.3d at 82 (internal quotations omitted).) Although
the Lee allegations took place nearly thirty years ago and the
jury did not find Dempsey generally dishonest, the remaining
factors support allowing cross examination on this point. The
alleged dishonesty involves similar serious subject matter and
motive—an allegedly coerced homicide confession—made with an eye
toward potential court proceedings. As the court in Martinez v.
City of New York explained, a credibility finding made in formal
proceedings is relevant under Rule 608(b) and should not be barred
under Rule 403, as “[n]othing could be more probative of a
witness’s character for untruthfulness than evidence that the
witness has previously lied under oath.” 2022 WL 20042798, at *5
(citing United States v. Whitmore, 359 F.3d 609, 619 (D.C. Cir.
2004)).
Although this Court barred Lee evidence in Kogut, Kogut
did not address a Rule 608(b) challenge and only addressed evidence
under Rule 404(b). Kogut, 2013 WL 3820826, at *13-14. Plaintiff’s
Motion pursuant to Rule 608(b) is accordingly GRANTED to the extent
he may inquire about the adverse credibility finding, but without
using extrinsic evidence or Lee’s testimony.

2. Motion to Include the NCDA CIU’s Findings
To the extent it was not previously addressed in Section
(III)(E)(3), Plaintiff’s Motion on this point is DENIED. (Omnibus
Motion at 15-17.)

3. Motion to Preclude Evidence of Plaintiff’s Polygraph
Results & Include Takita Dorsey’s Polygraph Results
Plaintiff failed the polygraph he was given during his
interrogation, and Dorsey passed a polygraph when she denied
serving as a messenger between Plaintiff and Tony. (Id. at 17-
18.) Plaintiff simultaneously seeks to bar these results, on
grounds his polygraph risks unfair prejudice but Dorsey’s shows
Defendants ignored polygraph results conflicting with Plaintiff’s
guilt. (Id.) Defendants maintain Plaintiff’s polygraph evidence
is admissible not for truth, but to rebut Plaintiff’s coercion
claim. (Omnibus Opposition at 13-14.) As for Dorsey, Defendants
maintain her polygraph result should be barred on relevance
grounds. (Id.)
Consistent with Second Circuit precedent, this Court
will not allow in any polygraph result for any reason. See Fraser,
206 F. App’x at 101; Kogut, 789 F.3d at 47. Plaintiff’s Motion on
this point is accordingly GRANTED in part and DENIED in part to
the extent neither Plaintiff’s nor Dorsey’s polygraph results may
be admitted.

4. Motion to Preclude Evidence of Plaintiff’s Guilt &
Include Evidence of Plaintiff’s Innocence
As the Court discussed supra at Section (III)(E)(1),
Plaintiff’s Motion on this point is DENIED as to evidence of
innocence. See Leka, 257 F.3d at 104 (Brady “materiality does not
depend on factual innocence, but rather what would have been proven
absent the violation” for Brady claims); Kyles, 514 U.S. at 434
(Brady inquiry “is not whether the defendant would more likely
than not have received a different verdict with the evidence, but
whether in its absence he received a fair trial, understood as a
trial resulting in a verdict worthy of confidence”). Consequently,
Plaintiff’s Motion is GRANTED in part and DENIED in part. Because
guilt or innocence is not an element to a Brady claim, Defendants

may not introduce evidence to establish Plaintiff’s guilt of the
Jason murder. Likewise, Plaintiff also may not present evidence
of innocence at trial.
5. Motion Precluding Defendants from Contesting Settled
Issues
In the Proposed Joint Pretrial Order, Defendants assert
“[t]he purportedly suppressed evidence was not favorable to the
plaintiff” as a defense. (Proposed PTO at 3.) Plaintiff moves to
strike this defense, on grounds it is precluded by the Summary
Judgment Order’s statement that “the Court agrees with Plaintiff
that Larrea’s and Montes’ statements are favorable to the Plaintiff
in that they have both exculpatory and impeaching value.” (Omnibus
Motion at 20-21 (citing Summary Judgment Order at 66-67).) In
support of this defense, Defendants cite to deposition testimony

from Plaintiff’s former attorney, Scott Brettschneider
(“Brettschneider”), who worked on the criminal case. (Omnibus
Opposition at 15-16.) Brettschneider stated he was unsure whether
the statements would be helpful because of their lack of
specificity, as it was unclear how Larrea and Montes would present
at trial. (Id. (citing ECF No. 386-9, 38:23-39:11, 76:25-77:12).)
Because Plaintiff has not cited to any authority indicating the
Summary Judgment Order has such preclusive effect, the Court DENIES
Plaintiff’s Motion on this point.

6. Motion to Exclude Defendants’ Police Practices
Expert, John Monaghan
Plaintiff argues Defendants’ police practices expert
John Monaghan should have his testimony excluded or heavily limited
under Daubert and Federal Rules of Evidence 403, 702, 703, and
704. (Omnibus Motion at 21.) First, Plaintiff maintains Monaghan,
a retired NYPD Captain, is not qualified to opine on Nassau County
police practices because he never worked in the Department, never
supervised homicide investigations, never served as a detective or
conducted a line-up, and focuses his analysis on NYPD standards

rather than Nassau County standards. (Id.) Next, Plaintiff claims
Monaghan is not qualified to critique Dr. Dysart’s eyewitness
identification analysis because he does not possess a comparable
academic background. (Id. at 23-24.) Third, Plaintiff argues
Monaghan should be barred from exceeding the scope of Noble’s
testimony since Defendants contend Monaghan is a rebuttal witness.
(Id. (citing Nnodimele, 2016 WL 3561708, at *14).) Plaintiff
additionally seeks to exclude Monaghan’s testimony to the extent
it: relies upon the Summary Judgment Order; contradicts or vouches
for witness statements, including his assertion that Larrea and
Montes did not see the shooter; and smuggles hearsay into the

record by narrating facts. (Id. at 23-26.)
Defendants counter that Monaghan is qualified based upon
his decorated 20-year career, experience in supervisory police
roles, and because NYPD standards are “arguably the gold standard”
for New York State. (Omnibus Opposition at 19-20.) Moreover,
Defendants assert Monaghan is listed as an affirmative and rebuttal
witness in the Proposed PTO (see Proposed PTO at 13), and courts
have previously admitted Monaghan’s expert testimony. (Omnibus
Opposition at 19-20 (citing Nnodimele, 2016 WL 3561708, at *14).)
Defendants do not contest Plaintiff’s point about judicial
opinions.

Plaintiff’s Motion is GRANTED in part and DENIED in part
as follows. First, Monaghan may use NYPD guidelines, as Plaintiff
has provided no basis for precluding them. See Rutherford v. City
of Mount Vernon, 698 F. Supp. 3d 574, 611 (S.D.N.Y. 2023) (allowing
expert to use Dallas police guidelines).) Although Monaghan does
not have the academic experience Dr. Dysart has, his police
training provides a sufficient basis for his proposed eyewitness
testimony, and any perceived deficiencies can be addressed on cross
examination. Monaghan may not base his opinion on judicial

opinions, including the Summary Judgment Order, and may not narrate
hearsay or opine on inadmissible witness crediblity. See Malletier
v. Dooney & Bourke, Inc., 525 F. Supp. 2d 558, 666 (S.D.N.Y. 2007)
(“[A] party cannot call an expert simply as a conduit for
introducing hearsay under the guise that the testifying expert
used the hearsay as the basis of his testimony.”). Further,
because Monaghan is not solely a rebuttal witness, he is not bound
to Noble’s scope to the extent Monaghan opines on the case-in-
chief.
7. Motion to Exclude Dr. Bruce Frumkin, Defendants’
Coerced Confession Expert
In addition to Monaghan, Plaintiff seeks to preclude the
testimony of Dr. Bruce Frumkin (“Dr. Frumkin”). (Omnibus Motion
at 26.) Dr. Frumkin conducted a psychological evaluation of
Plaintiff on July 1, 2022 for the purpose of assessing: (a) his
susceptibility to coerced confessions; and (b) any potential
psychological damages. (See ECF No. 439-5, the “Frumkin Report,”
at 1-2.) Plaintiff’s Motion on this point is GRANTED to the extent
Dr. Frumkin may not testify on coerced confessions (see supra
Section (III)(C)(2)), but is DENIED to the extent his findings
relate to psychological damages, given their relevance to the
damages portion of proceedings, if necessary.

8. Plaintiff’s Remote Arrests
Plaintiff seeks to preclude mention of several arrests
and convictions he had throughout the late 1980’s and 1990’s, on
Rule 609(b) grounds. (Omnibus Motion at 28 (citing Fed. R. Evid.
609(b)).) Defendants argue such arrests are admissible for both
general impeachment and to show damages, on grounds “a plaintiff
‘who has had a number of prior arrests and detentions is likely to

have suffered less distress than one who has never before been
detained.’” (Omnibus Opposition at 23 (quoting Banushi v. Palmer,
No. 08-CV-2937, 2011 WL 13894, at *3 (E.D.N.Y. Jan. 4, 2011),
aff’d, 500 F. App’x 84 (2d Cir. 2012)).) In Defendants’ view, an
April 4, 1990 arrest is particularly probative because Plaintiff
signed a Miranda card; Defendants say this undercuts his claim
that he did not know he was signing a Miranda card during his
December 1994 interrogation. (Id. at 24.)

Plaintiff’s Motion on this point is GRANTED in part and
DENIED in part, as follows. On the matter of liability, these
arrests and convictions may not be used for impeachment; they took
place more than 30 years ago, have minimal probative impeachment
value, and run high risk of unfair prejudice. See Fed. R. Evid.
609(b). However, if liability is proven, as to the matter of
damages, Defendants may show Plaintiff was confined and signed a
Miranda card on April 4, 1990, without specifics to the arrest,

and only to show his familiarity with the Miranda card system.
Similarly, in the damages phase of litigation, Defendants may
introduce general evidence of Plaintiff’s previous arrests and
convictions for the limited purpose of establishing Plaintiff’s
purported lack of distress.
9. Plaintiff’s Medical Marijuana Use
Plaintiff seeks to preclude evidence of his medical

marijuana use, citing a lack of relevance. (Omnibus Motion at 28-
29.) Defendants contend said use is relevant as to psychological
damages, because Plaintiff “specifically testified that he was
prescribed medical marijuana by a doctor in reference to his
psychological issues.” (Omnibus Opposition at 24-25.) Plaintiff’s
Motion is GRANTED in part: Defendants may not raise the medical
marijuana use during the liability phase of the trial, given its
minimal probative value, but may do so in the damages phase, given
its potential bearing on Plaintiff’s claimed psychological
damages.

10. Plaintiff’s Jail and Prison Discipline Records
Plaintiff objects to Defendants’ “wholesale” selection
of Plaintiff’s jail and prison disciplinary records, casting them
as prejudicial and irrelevant. (Omnibus Motion at 29.) Because
Defendants believe Plaintiff will mention his time in a special
housing unit as part of his damages argument, Defendants contend
they will use this evidence to explain why he was placed there.

(Omnibus Opposition 25.) Defendants also plan to use a 2010
administrative finding that Plaintiff was not honest for
impeachment purposes. (Id.)
Plaintiff’s Motion on this point is GRANTED in part and
DENIED in part. Defendants may not offer or discuss the
disciplinary records, except for the following reasons: First,

consistent with Rule 608(b), Defendants may inquire about the
untruthfulness finding without using extrinsic evidence. See Fed.
R. Evid. 608(b). Second, during the damages phase, if Plaintiff
raises his time in special housing, i.e., opens the door to that
matter, Defendants may present evidence regarding the reasons for
Plaintiff’s placement in response.

11. Plaintiff’s Inmate Medical & Program Records
Plaintiff seeks to preclude “wholesale” admission of his
inmate medical and program records, but “reserves the right to
offer selected records narrowly tailored to damages.” (Omnibus
Motion at 29.) Defendants state they do not plan to address the
medical records, but contend the program records are relevant to
damages because Plaintiff took several vocational training
programs in fields in which he has not sought employment. (Omnibus
Opposition at 25.) The Court GRANTS this Motion in part: During
the damages phase, the Parties may raise narrowly-tailored
portions of the medical and training records, but only as they

relate to the issue of damages.
12. Scott Brettschneider Evidence
Plaintiff seeks to bar exhibits showing Brettschneider
was convicted of a crime and disbarred in 2019, due to his work in
an unrelated case. (Omnibus Motion at 29-30.) Plaintiff argues
the exhibits—publicly-available news articles and press releases

documenting Brettschneider’s disbarment and conviction—are
irrelevant, prejudicial by association, and not produced. (Id.)
Defendants maintain these publicly-available exhibits are not
subject to discovery (see Fed. R. Civ. P. 26(a)(1)(A)(ii)), risk
no prejudice because their subject matter was known and inquired
upon throughout discovery, and are relevant for impeaching
Brettschneider as a witness. (Omnibus Opposition at 25-27.)

Plaintiff’s Motion on this point is DENIED to the
following extent. Defendants may use these exhibits for
impeachment purposes as to Brettschneider, but may not use these
exhibits to impeach Plaintiff or make any kind of guilt-by-
association argument. As to the publicly-available documents, it
“is well-established that discovery need not be required of
documents of public record which are equally accessible to all
parties.” Hart v. Suffolk County, No. 17-CV-5067, 2023 WL 5720075,
at *7 (E.D.N.Y. Sept. 5, 2023), aff’d, No. 23-7269, 2025 WL 1374984

(2d Cir. May 13, 2025) (quoting Krause v. Buffalo & Erie County
Workforce Dev. Consortium, Inc., 426 F. Supp. 2d 68, 90 (W.D.N.Y.
2005)). Plaintiff is unlikely to suffer from unfair prejudice
from permitting the use of the publicly-available documents, given
all Parties knew of Brettschneider’s conviction and disbarment,
and because such materials do not relate to Plaintiff and may not
be used against him.

13. Plaintiff’s Pro Se Appellate and Post-Conviction
Filings
Plaintiff asserts his pro se appellate and post-
conviction filings are irrelevant hearsay and, therefore, should
be excluded. (Omnibus Motion at 30.) Defendants argue such filings
are: admissible as party statements and ancient documents; subject
to judicial notice; and, relevant because, in said filings,
Plaintiff failed to allege his confession “was fabricated, false,
or that he was physically coerced into signing said confession as
he claims in this lawsuit.” (Omnibus Opposition at 27.) In
response to Defendants’ counterarguments (discussed below),

Plaintiff asserts his 2003 habeas filing “contains no statement”
inconsistent with his current position, which, in any event, was
written before he was given the Larrea and Montes statements. (ECF
No. 449 at 11.) To the extent the documents are considered
relevant, Plaintiff contends the Court can take judicial notice
that the proceedings occurred but may not introduce or discuss the
briefings themselves. (Omnibus Motion at 30.)

Plaintiff’s Motion on this basis is DENIED. He has
failed to cite any authority indicating such materials are
inadmissible, especially on the alternative grounds raised by
Defendants. To the extent Plaintiff wishes to argue these
materials are not inconsistent with his current position or took
place before he had the Larrea and Montes statements, he may do so
at trial upon examination or cross-examination.

14. Evidence of the 1993 Non-Fatal Steven Jason
Shooting and 1994 Tony Jackson Murder
In Plaintiff’s view, the 1993 non-fatal shooting of
Steven Jason, i.e., the Victim has “no relevance to the remaining
claims and discussing it at trial will inevitably invite a mini-
trial about another crime.” (Omnibus Motion at 30-31.) Plaintiff
also asserts evidence of the 1994 murder of Tony should be
excluded, as it may suggest “guilt by association and wasting time
with a needless mini-trial.” (Id. at 30.) Defendants consider the
1993 Jason shooting as relevant motive evidence and, while they

claim to “have no intention of litigating” Tony’s murder,
Defendants seek to explore Plaintiff’s friendship with Tony in
support of their damages defense. (Omnibus Opposition at 27-28.)
Plaintiff’s Motion on this point is DENIED as follows.
Because the 1993 Jason shooting was discussed as motive evidence
in Plaintiff’s criminal trial, it may be examined and discussed to

the extent it is relevant to Brady materiality. Defendants may
additionally raise the Tony friendship during the damages phase,
but may not explore this friendship during the liability phase of
the litigation, as it bears little probative value to liability
and will be far less prejudicial during the damages phase.
15. Plaintiff’s 1994 Drug Charge
Plaintiff argues evidence related to his August 9, 1994

drug sale is irrelevant, remote in time, and would improperly
prejudice the jury. (Omnibus Motion at 31.) Defendants contend
this charge is an admissible felony, relevant because Plaintiff
was arrested and in custody for this crime when he signed his
murder confession. (Omnibus Opposition at 28.) Per Defendants,
excluding this evidence could cause the jury to believe Plaintiff
was illegally in custody when he confessed to the murder. (Id.)

As discussed previously, Defendants are generally barred
from raising Plaintiff’s previous arrests and convictions.
However, Defendants may introduce evidence that Plaintiff was in
custody for an unrelated crime at the time of his interrogation.
Depending how the testimony develops and to the extent necessary,
Plaintiff may seek a limiting instruction regarding consideration
of that evidence. Plaintiff’s Motion on this point is accordingly
GRANTED in part and DENIED in part.

16. Plaintiff’s Court of Claims Litigation
Plaintiff seeks to preclude mention of his previous
Court of Claims litigation, wherein his claim to recover under New
York’s Unjust Conviction and Imprisonment Statute was denied
because the statute does not allow recovery for Brady vacaturs.
(Omnibus Motion at 31; ECF No. 387-22 (Court of Claims decision).)
Plaintiff belives the litigation is not relevant and will confuse
the jury. (Omnibus Motion at 31.) Notwithstanding Defendants’

counter-position that said case goes to Plaintiff’s financial
motive, since he did not appeal the adverse finding, this Court
GRANTS Plaintiff’s Motion on this point. The Court of Claims
litigation has little probative value to the instant action,
especially as Plaintiff’s claim was denied on narrow state law
grounds not at issue here.

17. Defendants’ Intervening Cause Argument
Defendants’ forty-fourth defense in the Proposed PTO
posits “Plaintiff's damages were caused or contributed to by
ineffective assistance of counsel at all stages of plaintiff’s
criminal prosecution.” (Proposed PTO at 4.) Plaintiff seeks to
preclude this line of argument, as it is typically rejected by
Second Circuit courts. (Omnibus Motion at 32 (citing, e.g.,
Hamilton v. City of N.Y., No. 15-CV-4574, 2019 WL 1452013, at *17
(E.D.N.Y. Mar. 19, 2019) (“This Court is not aware of any decision
in this Circuit, nor have Defendants cited any, in which an
independent decision by a defendant or defense counsel [ . . . ]

was held to be a superseding cause of a defendant’s
conviction[.]”); Galloway v. County of Nassau, No. 19-CV-5026,
2024 WL 1345634, *16 (E.D.N.Y. Mar. 29, 2024), on reconsideration,
2024 WL 2960532 (E.D.N.Y. June 11, 2024), and aff’d in part, appeal
dismissed in part, 141 F.4th 417 (2d Cir. 2025)).) Although
Defendants argue Plaintiff’s criminal defense counsel “knew or
should have known of Larrea and Montes’s observations and that
they failed to utilize this evidence, all of which demonstrates
that their statements were not suppressed,” the Court GRANTS
Plaintiff’s Motion, as the cited precedent casts serious doubt as
to the viability of this defense. (Omnibus Opposition at 29.)

18. Legal Arguments to the Jury
Plaintiff posits Defendants should not resolve Brady
materiality, favorability, or duty questions, nor raise qualified
immunity, objective reasonableness, or probable cause defenses
irrelevant to the Brady claim. 6 (Omnibus Motion at 33.) The Court
GRANTS this Motion to the extent the Parties may not infringe on
the Court’s duty to provide the law to the jury and the jury’s
duty to apply the law to the facts of the case. See In re United
States, 945 F.3d 616, 627 (2d Cir. 2019) (quoting Sparf v. United
States, 156 U.S. 51, 102 (1895)). Counsel may, however, make
arguments in their respective summations which are reasonably

inferred from evidence presented. United States v. Roldan–Zapata,
916 F.2d 795, 807 (2d Cir. 1990).

19. Purportedly Undisclosed Witnesses and Evidence

6 Plaintiff’s Motion on this point sought to preclude Exhibit
UUUUUU (the Restivo verdict sheet). Because the Restivo,
Halstead, and Kogut evidence is barred, the Court DENIES as moot
this portion of the Motion.
Plaintiff argues several exhibits7 should be precluded
because they were not produced during discovery. (Omnibus Motion
at 33.) Defendants claim one of the exhibits (Ex. NNNN) was
produced during discovery, four (Ex. ZZZ, AAAA, BBBB, and CCCC)
are photographs given to Plaintiff at his deposition, and two (Ex.
S and IIII) are demonstratives, and are thus not subject to

discovery. (Omnibus Opposition at 30 (citing Alexander v. Stop &
Shop Supermarket Co., LLC, No. 22-CV-95557, 2025 WL 654995, at *2
(S.D.N.Y. Feb. 28, 2025)).) Because Exhibit NNNN appears to have
Bates stamps, the four photographs were shown to Plaintiff at his
deposition, and demonstratives are not subject to discovery, the
Court DENIES Plaintiff’s Motion on this point.

Plaintiff also contends three of Defendants’ proposed
witnesses, Anthony Mayol, Eugene Cordaro, and Isabelle Vailes, and
several associated exhibits must be precluded because they were
not disclosed during discovery. (Omnibus Motion at 33.) Defendants
acknowledge Mayol, a childhood friend of Plaintiff and attorney
who worked on the vacatur litigation, was not designated as a
witness, but maintain: (a) Mayol is not required to be disclosed

7 As documented in the Proposed PTO, these exhibits include: (1)
Google Map of Area Surrounding Shooting (Ex. S); (2) photographs
taken of the NCPD examination room (Ex. ZZZ and AAAA); (3) sketches
of the NCPD polygraph room (Ex. BBBB and CCCC); (4) Demonstrative
Diagram Map of Evidence related to the homicide of Victim (Ex.
IIII); and (5) a document from a court-ordered line-up (Ex. NNNN).
(Proposed PTO at pp. 62, 85-87, 89, 91.)
to the extent he is an impeachment witness; (b) Plaintiff will not
suffer prejudice from Mayol’s inclusion, because his role in the
vacatur litigation was discussed extensively throughout the
litigation; and (c) Mayol’s “testimony is extremely relevant to
damages based on his investigation into, knowledge of, and
conversations with plaintiff about, the Larrea and Montes

statements for more than a decade before plaintiff contacted NCDA.”
(Omnibus Opposition at 30-31 (citing (Fed. R. Civ. P.
26(a)(1)(A)(i) (witnesses must be disclosed “unless the use would
be solely for impeachment”)).) On Cordaro, Defendants argue he was
identified as a witness in their April 23, 2021 Rule 26(a)
disclosures.8 (Id.) Defendants did not respond to Plaintiff’s
Vailes arguments. (Id.)

Plaintiff’s Motion is GRANTED in part and DENIED in part,
as follows. Because Defendants did not timely designate Mayol,
including him now would cause prejudice to Plaintiff. Therefore,
he may be offered only for impeachment purposes. Because Cordaro
was identified in Defendants’ initial disclosures, he may testify.
Because Defendants did not meaningfully respond as to Vailes,
Defendants are precluded from calling her to testify.

20. Exhibits “Lacking Authentication”

8 Cordaro’s name was misspelled as “Cordero” on the initial
disclosure. (Omnibus Motion at 33.)
Per Plaintiff, jail and visitor logs should be excluded,
because they “lack proper foundation and should be excluded absent
competent testimony establishing their authenticity.”9 (Omnibus
Motion at 33-34.) Defendants argue such documents are admissible
as ancient documents and business records, as they “were in the
County’s possession as they all relate to NCPD’s homicide

investigation and there is no basis to question their
authenticity,” while Defendants take the position Exhibit BBBB “is
admissible as a business record and for demonstrative purposes.”
(Omnibus Opposition at 32-33.)
Because these documents appear to be “kept in the course
of a regularly conducted activity,” Plaintiff’s Motion on this

point is DENIED without prejudice, provided Defendants can proffer
testimony from each exhibit’s relevant custodian of records
supporting the necessary elements under Rule 803(6) or otherwise
prove their authenticity. Fed. R. Evid. 803(6)(B).
21. Jerl Mullen Notes and Drawings

9 As documented in the Proposed PTO, the exhibits: are Exhibit KK
(Nassau County Sheriffs Department- Visit History for Lionel
Olige); Exhibit LL (List of Jail Visits); Exhibit MM (NCPD
Paperwork on Anthony Mayol); Exhibit BBBB (Sketches of NCPD
Polygraph Exam Room); Exhibit IIII (Demonstrative Diagram/Map of
Evidence related to the homicide of Victim); and Exhibit BBBBB
(Handwritten notes of timeline). (Proposed PTO at 73, 75, 86,
89.)
In a single-sentence, Plaintiff argues Jerl Mullen’s
notes should be precluded because he is deceased. (Omnibus Motion
at 33.) This one-sentence objection does not satisfy Plaintiff’s
burden and is accordingly DENIED with prejudice and subject to
renewal at trial upon a more developed objection.

22. “Hearsay Statements and Notes, Including Records
Related to Peddie Jenkins”
Plaintiff’s single-sentence argument that “[v]arious
exhibits listed by defendants constitute inadmissible hearsay and
should be precluded on that basis [ . . . ] along with hearsay
attributed to Peddie Jenkins” (Omnibus Motion at 34) fails to
satisfy his burden and is thus DENIED without prejudice and subject
to renewal at trial upon a more developed objection.
23. Vacated Judicial Decisions

Plaintiff asserts, in non-specific fashion, “the legal
decisions flowing into the vacated judgment are a nullity and lack
any arguable relevance to the claims to be tried.” (Omnibus Motion
at 34.) Defendants argue such documents are relevant because the
state prosecution could not have proceeded without an indictment,
and the pre-trial suppression hearing decision is important to
show the state court rejected Plaintiff’s coercion argument.
(Omnibus Opposition 32.) Because of Plaintiff’s lack of
specificity, his Motion on this point is DENIED without prejudice
to renew.
24. Grand Jury and Indictment and Exhibits
Plaintiff contends any references to the May 23, 1995
grand jury decisions should be precluded on grounds “[t]hey are
irrelevant to the surviving claims, and smuggle hearsay-within-
hearsay about charging decisions, and would invite a prejudicial
mini-trial.” (Omnibus Motion at 34.) Defendants state they plan
to use grand jury transcripts “for impeachment purposes only or

possible prior consistent statements,” and to show Plaintiff was
indicted. (Omnibus Opposition at 32.) Because Defendants’ planned
use does not raise the hearsay issues Plaintiff objects to,
Plaintiff’s objection is DENIED. Defendants may use these
materials for impeachment and prior consistent statement purposes
and, if warranted, the Court will consider any objections thereto
and proffered in those capacities.

25. Expert Reports and Supporting Material
Plaintiff’s Motion includes a heading reading “Expert
reports and supporting materials are inadmissible and should be
precluded,” with no text beneath it. (Omnibus Motion at 35.)
Because no substantive arguments have been presented on this point,
this portion of Plaintiff’s Omnibus Motion is DENIED without
prejudice to renew.
26. The Witherspoon Identifications and Evidence
Although he cites to no case on this point, Plaintiff
maintains Defendants may not rely upon Witherspoon’s previous
identification of Plaintiff unless she testifies at trial.10
(Omnibus Motion at 33.) While Witherspoon previously identified
Plaintiff as Victim’s shooter during the criminal investigation
(see Summary Judgment Order at 14-19), she now says she cannot

remember her experiences with Plaintiff’s investigation due to a
2002 stroke. (Omnibus Motion at 15.) Defendants argue she is
unavailable because, in addition to her medical diagnosis, she
lives in Florida and the Court cannot compel her attendance.11
(Omnibus Opposition at 34-35.) Defendants additionally observe
Plaintiff had an opportunity and similar motive to cross-examine
Witherspoon about her identification at the criminal trial,
rendering her previous testimony admissible. (Id. (citing United
States v. Amato, No. 03-CR-1382, 2006 WL 1891113 (E.D.N.Y. June
27, 2006); City of Almaty, Kazakhstan v. Sater, No. 19-CV-2645,
2025 WL 2256759, at *3 (S.D.N.Y. Aug. 6, 2025)).) Defendants’

counter-position is persuasive. Moreover, in the absence of any

10 Specifically, Plaintiff argues “Rule 801(d)(l)(C) requires the
declarant to testify; Rule 804(b)(l) fails because Jackson lacked
a similar motive to cross in 1996 given the suppressed
Montes/Larrea statements; adversarial line-up notes/DD-5s are
excluded by Rule 803(8); Rule 807 trustworthiness is lacking amid
CIU-found Brady violations.” (Omnibus Motion at 34-35.)
11 Defendants’ claim about Witherspoon’s residence is made on
information and belief.
case law supporting his position, Plaintiff’s Motion is DENIED
without prejudice and subject to renewal at trial upon a more
developed objection.

27. Confidentiality Designations
Plaintiff argues confidentiality designations should be
removed for trial use. (Omnibus Motion at 35.) Defendants have no
objection to presenting confidentiality-designated evidence to the
jury, but assert “[r]ecords produced include officers’ internal
and personal records, training materials, grand jury transcripts,
witness contact information, and all discovery related to the
criminal prosecution” should not be published online or dispersed
to the media prior to trial. (Omnibus Opposition at 35.) The Court
agrees. Thus, the Court GRANTS Plaintiff’s Motion in part to the

extent confidentiality-designated discovery may be used in open
Court and in front of the jury, but DENIES it to the extent such
confidential-designated material is not to be published online or
dispersed to media in unredacted form. Until further order of the
Court, Parties are to use best efforts to limit the introduction
of such materials and may address potential redactions of same
with the Court as such materials are introduced, consistent with
the Stipulation and Order of Confidentiality filed in this case.
(See ECF Nos. 266, 267.)

28. Untimely Errata Sheets
Plaintiff observes the errata sheets for Abbondandelo
and Kosior, both of which show substantial revisions, were
submitted more than 30 days after the transcripts were received.
(Omnibus Motion at 35.) Defendants do not dispute that the sheets
were submitted past the 30-day deadline. (Omnibus Opposition at
35.) Because the 30-day requirement “is strictly enforced,”
Plaintiff’s Motion is GRANTED as to this claim. Morrison v.
Millenium Hotels, No. 18-CV-6811, 2021 WL 1534293, at *8 (S.D.N.Y.
Apr. 19, 2021).

***
To the extent the Court has not explicitly ruled on a
portion of either Parties’ motions, they are denied without
prejudice to renew at trial, if warranted.

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
CONCLUSION
Accordingly, IT IS HEREBY ORDERED that each of the
Motions (ECF Nos. 411, 412, 415, 418, 421, 424, and 43012) is
granted in part and denied in part, as provided for in the body of
this ORDER.

SO ORDERED.
/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.

Dated: January 27, 2026
Central Islip, New York

12 For clarification, these are the actual motions and not the
corresponding support memoranda, which the Court defines at pp. 2-
3.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11252540. Public record. Not legal advice.