Rizk et al v. City of New York et al

Filing 159

ORDER denying 151 Motion for Judgment as a Matter of Law. For the reasons set forth in the attached Order, Defendants' motion for judgment as a matter of law is denied. Ordered by Judge Hector Gonzalez on 10/5/2022. (JN)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
JACQUELINE RIZK and SAMIR GONSALVES,
v.

Plaintiffs,

MEMORANDUM & ORDER
14-CV-06434 (HG)

POLICE OFFICER FIRDAUS MEHIRDEL, TAX
REG # 950309, POLICE OFFICER DANNY LEE,
TAX REG # 950736,
Defendants.
HECTOR GONZALEZ, United States District Judge:
Plaintiffs Jacqueline Rizk and Samir Gonsalves brought this action against Defendants
Firdaus Mehirdel and Danny Lee for false arrest, excessive force, denial of a right to fair trial
and intentional infliction of emotional distress in violation of 42 U.S.C. § 1983 and New York
state law. Trial commenced on July 18, 2022. The Court has already granted Defendants’
motion for judgment as a matter of law pursuant to Rule 50(a) with respect to the claims against
former Defendant Joel Rosenthal, but reserved decision on the remaining claims and sent them to
the jury. On July 21, 2022, the jury returned a verdict in favor of Plaintiffs with respect to the
claims of excessive force, denial of a right to a fair trial and intentional infliction of emotional
distress (“IIED”). See Jury Verdict Sheet, ECF No. 147. Defendants now renew their motion for
judgment as a matter of law pursuant to Rule 50(b) with respect to all of Plaintiffs’ claims
(“Motion”). See ECF Nos. 151, 154, 158. For the reasons set forth below, Defendants’ Motion
is denied.

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BACKGROUND
The Court assumes familiarity with the background of this case, see generally Rizk v. City
of New York, 462 F. Supp. 3d 203 (E.D.N.Y. 2020), and only briefly discusses the relevant facts.
In the early morning of August 3, 2013, Plaintiffs were at a bar/lounge located on Steinway
Street in Astoria, Queens. See Trial Transcript, ECF No. 156 at 283:11–19. Defendants
Mehirdel and Lee, driving a marked patrol car, were flagged down by a black SUV and passerby,
alerting them to an argument between a man and woman, later learned to be Plaintiffs Gonsalves
and Rizk. See Trial Transcript, ECF No. 155 at 44:7–46:2. Mehirdel, who was in the front
passenger seat of the patrol car, asked Rizk if she was okay, and she replied that everything was
fine. Id. at 46:4-12. Nonetheless, Medirdel and Lee exited the car and, in an attempt to separate
Gonsalves from Rizk, Mehirdel ordered Gonsalves to come towards him by gesturing with his
hands. Id. 47:9–19. Gonsalves did not comply with this order, which resulted in a confrontation
between the parties during which Mehirdel stated Gonsalves struck him. Id. at 47:21–51:7; ECF
No. 156 at 294:3–300:19. Both Plaintiffs were subsequently arrested: Rizk was arrested at the
scene, ECF No. 155 at 50:18–20, and Gonsalves was arrested at the 114th precinct in Astoria, id.
at 168:4–9. 1
The trial commenced on July 18, 2022. The jury heard testimony from Plaintiffs
Gonsalves and Rizk, Defendants Mehirdel and Lee, Captain Joel Rosenthal as well as Dr. Oscar
Korte, Plaintiff Rizk’s therapist. At the close of evidence on July 19, 2022, pursuant to Rule
50(a), Defendants moved: (i) to dismiss Captain Rosenthal from the action; (ii) to dismiss all of

1

At the time of the arrest, Gonsalves was employed as an off-duty detective with the New
York City Police Department. See ECF No. 155 at 83:1–4, 156. Rizk was and currently is
employed as a prosecutor in the Queens County District Attorney’s Office. See ECF No. 156 at
276:19–278:20.
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Plaintiffs’ remaining claims including false arrest, excessive force, denial of the right to fair trial,
failure to intervene, and intentional infliction of emotional distress; and (iii) for qualified
immunity with respect to all of Plaintiffs’ claims. The Court granted Defendants’ motion with
respect to Captain Rosenthal, finding that all remaining counts against him should be dismissed.
See ECF No. 156 at 365:3–366:5. The Court found that taking all inferences in the light most
favorable to Plaintiffs, the jury would not have a legally sufficient basis to find for Plaintiffs as to
Captain Rosenthal. Id. The Court reserved decision on qualified immunity and Plaintiffs’
remaining claims and sent the case to the jury. Id. at 364:20–25.
After considering the parties’ arguments, the testimony before it, and a video of the
incident, the jury determined that: (i) Mehirdel used excessive force against Rizk; (ii) Mehirdel
denied Plaintiffs’ right to a fair trial and Lee failed to intervene to prevent it; and (iii) Mehirdel
intentionally inflicted emotional harm on Rizk. See ECF No. 147. The jury found in favor of
Mehirdel and Lee as to Plaintiffs’ claims for false arrest and Gonsalves’ claim of excessive force.
Id. The jury awarded Gonsalves and Rizk $13,000 and $2,120, respectively, in compensatory
damages. Id. at 6. The jury further awarded Gonsalves and Rizk each $11,000 in punitive
damages. Id. at 7. Judgment was entered against Defendants on July 25, 2022. See ECF No.
149.
LEGAL STANDARD
At a jury trial, “[a] court may grant judgment as a matter of law if, after a party has been
fully heard on an issue, the court concludes there is no legally sufficient evidentiary basis for a
reasonable jury to find for the opposing party on an issue essential to a claim.” Woolfolk v.
Baldofsky, No. 19-cv-3815, 2022 WL 3358081, at *2 (E.D.N.Y. Aug. 15, 2022) (internal
quotation marks omitted); see also Fed. R. Civ. P. 50(a). “That burden is particularly heavy

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where . . . the jury has deliberated in the case and actually returned its verdict in favor of the
nonmovant. In such circumstances, a court may set aside the verdict only if there exists such a
complete absence of evidence supporting the verdict that the jury’s findings could only have
been the result of sheer surmise and conjecture, or the evidence of the movant is so
overwhelming that reasonable and fair-minded persons could not arrive at a verdict against it.”
Fox v. Triborough Bridge & Tunnel Auth., 462 F. Supp. 3d 241, 244 (E.D.N.Y. 2020) (citations
and internal quotation marks omitted). In ruling on a motion for judgment as a matter of law
(“JMOL”), the court “must draw all reasonable inferences in favor of the nonmoving party, and
it may not make credibility determinations or weigh the evidence.” Id.
DISCUSSION
I.

Excessive Force
Defendants argue that the Court should grant a JMOL with respect to Rizk’s claim of

excessive force because: (i) it fails as a matter of law, and (ii) Mehirdel is entitled to qualified
immunity. ECF No. 151-1 at 12–22. For the reasons set forth below, the Court declines to grant
Defendants’ Motion.
A. Plaintiff Rizk’s Excessive Force Claim Does Not Fail as a Matter of Law
“The Fourth Amendment protects individuals from the government’s use of excessive
force when detaining or arresting individuals. A police officer’s use of force is excessive in
violation of the Fourth Amendment if it is objectively unreasonable in light of the facts and
circumstances confronting [him], without regard to [his] underlying intent or motivation.”
Lawson v. Cnty. of Suffolk, 920 F. Supp. 2d. 332, 339 (E.D.N.Y. 2013) (internal citations and
quotation marks omitted) (alterations in original).
As Defendants point out, Mehirdel was legally entitled to use some degree of force to
arrest Rizk, but the reasonableness of the amount of force used is in dispute. ECF No. 151-1 at
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20. “Although [t]he fact that a person whom a police officer attempts to arrest resists, threatens,
or assaults the officer no doubt justifies the officer’s use of some degree of force, . . . it does not
give the officer license to use force without limit. Instead, the force an officer uses must be
reasonably related to the nature of the resistance and the force used, threatened, or reasonably
perceived to be threatened, against the officer.” Lee v. City of Troy, 339 F.R.D. 346, 361
(N.D.N.Y. 2021) (quoting Sullivan v. Gagnier, 225 F.3d 161, 165–66 (2d Cir. 2000)) (internal
citations and quotation marks omitted) (alterations in original).
“In deciding whether an officer used excessive force, the fact finder must consider the
facts and circumstances of each particular case, including: (1) the nature and severity of the
crime leading to the arrest, (2) whether the suspect poses an immediate threat to the safety of the
officer or others, and (3) whether the suspect was actively resisting arrest or attempting to evade
arrest by flight.” Lawson, 920 F. Supp. 2d at 340 (internal quotation marks omitted).
Defendants argue that the video footage and testimony at trial plainly shows that Mehirdel’s use
of force was reasonable as a matter of law. ECF No. 151-1 at 22. However, “[d]rawing all
inferences in favor of the non-moving party and giving deference to all credibility determinations
of the jury, the Court finds that the [Defendants] ha[ve] not established that the evidence is
insufficient to permit a reasonable juror to find in [Plaintiff’s] favor.” Lawson, 920 F. Supp. 2d
at 340 (internal quotation marks omitted).
Defendants’ testimony paints a picture in which Rizk “physically involved herself in
defendants’ attempt to arrest plaintiff Gonsalves,” resisted Mehirdel’s attempts to place her
under arrest, and got out of her handcuffs in the police vehicle—as a result, the force used by
Mehirdel was reasonable. See ECF No. 151-1 at 20–22. However, testimony exists in the record
that, if believed by the jury, indicates that: (i) Mehirdel initiated force against Rizk before she

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resisted arrest, see ECF No. 156 at 300:17–24 (“At one point, he had his hand on my neck and
was, like, pushing it down against the car, and he proceeded to handcuff me . . . . Q: Did you
hear anyone say you were under arrest before you grabbed? A: No. I didn’t hear anything said
before I was grabbed.”); (ii) that she tried to alert Mehirdel to her discomfort and was ignored,
see id. at 300:5–9 (“I was screaming: Please. Please . . . . My dress is going up . . . and he’s like:
I don’t care. Shut up. Shut up. Just throwing me against the car.”); and (iii) and that Mehirdel
continued to exert force against Rizk after she was handcuffed, see id. at 302:9–12 (“[H]e
reached in to the vehicle towards me . . . . He reaches in and he does, like, a two movement - like, a lift up and then, like, a throw to the floor.”).
Defendants significantly rely on Rasmussen v. City of New York, 766 F. Supp. 2d 399
(E.D.N.Y. 2011), a summary judgment decision, to argue that Rizk’s excessive force claim
should be dismissed as a matter of law. ECF No. 151-1 at 15–19. The case differs from the
present circumstances in several respects: (i) the case arises out of a drug arrest where the
suspect fled from police, ran into his apartment and hid in a bedroom closet, Rasmussen, 766 F.
Supp. 2d at 400; (ii) the plaintiff physically interfered in the suspect’s arrest more than once,
including after she was forcibly removed from the bedroom, id. at 404; (iii) the court emphasized
that the police officers were in the middle of an operation that involved a “hot-pursuit chase and
gun fire, accidental or not,” id. at 407; and (iv) one of the officer’s guns accidentally discharged
while in the bedroom which elevated the chaotic nature of the situation, id. In Rasmussen, the
nature and severity of the crime—as well as the safety of not only the officers, but all others in
the apartment—played a role in granting defendants’ summary judgment motion on the
plaintiff’s excessive force claim. See id. at 406. Viewing the evidence presented at trial here in

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the light most favorable to Plaintiffs, a reasonable juror could have concluded that given the
circumstances, unlike in Rasmussen, the amount of force used by Mehirdel was not reasonable.
Defendants also ask the Court to rely on admissions made by Rizk during her testimony
to hold that Mehirdel did not use excessive force to arrest Rizk, see ECF Nos. 151-1 at 21–22,
158 at 3, but these do not entitle Defendants to a JMOL. See Lawson, 920 F. Supp. 2d at 340
(denying Rule 50 motion where plaintiff argued that defendants’ admissions at trial merited
judgment as a matter of law). The jury reviewed video footage of the incident, heard the
testimony of the parties, and decided who to credit. Even if the Court would have come to a
different conclusion than the jury—a matter on which the Court renders no opinion—the Court
cannot set aside the verdict because it disagrees with the jury’s reasonable assessment of Rizk’s
testimony. See Ekukpe v. Santiago, 823 F. App’x 25, 30 (2d Cir. 2020) (denying defendants’
motion for JMOL and holding that evidence at trial did not compel finding that Defendants’
version of events was true).
B. Defendant Mehirdel Is Not Entitled to Qualified Immunity on the Excessive Force
Claim
“The doctrine of qualified immunity shields public officials performing discretionary
functions from civil liability insofar as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have known, or insofar as it was
objectively reasonable for them to believe that their acts did not violate those rights.” Rolkiewicz
v. City of New York, 442 F. Supp. 3d 627, 643 (S.D.N.Y. 2020) (quoting Bradway v. Gonzales,
26 F.3d 313, 317–18 (2d Cir. 1994)). “[W]hen an official raises qualified immunity as a defense,
the court must consider whether: (1) . . . the official violated a statutory or constitutional right,
and (2) . . . the right was clearly established at the time of the challenged conduct.” Jones v.
Treubig, 963 F.3d 214, 224 (2d Cir. 2020) (internal quotation marks omitted).
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Here, the first prong of the qualified immunity test—whether defendant violated a
statutory or constitutional right—was determined by the jury in this case, which found that
Mehirdel used excessive force against Rizk. See Jones, 963 F.3d at 225. For the reasons
described in the previous section, the Court will not disturb the jury’s conclusion that a
constitutional violation occurred. The second prong requires the Court to consider “whether a
reasonable officer faced with the same factual scenario that [Sergeant Mehirdel] encountered
would have known that his use of force was unreasonable.” Adedeji v. Hoder, 935 F. Supp. 2d
557, 569 (E.D.N.Y. 2013). Mehirdel argues that Rizk smacked him on his back, resisted arrest
and “tipped over” when she was removed from the vehicle in order to adjust her handcuffs. See
ECF No. 155 at 60:9–14, 63–64. Rizk argues that she extended her arm in Mehirdel’s direction
but never made contact with him, 2 that he threw her against the car and then subsequently threw
her on the ground. See ECF No. 156 at 302, 341, 345. “Where the circumstances are in dispute,
and contrasting accounts . . . present factual issues as to the degree of force actually employed
and its reasonableness, a defendant is not entitled to judgment as a matter of law on a defense of
qualified immunity.” See Mickle v. Morin, 297 F.3d 114, 122 (2d Cir. 2002) (internal quotation
marks omitted). The jury found that the force used against Rizk was excessive and there is a
material dispute of fact as to whether Rizk made contact with Mehirdel. Taking the facts in the
light most favorable to the nonmoving party, the Court concludes that “no reasonable officer
could [have] believe[d],” in these circumstances, that the amount of force Mehirdel used was

2

Rizk initially stated she was not in physical contact with Merhidel but her arm was
extended in his direction, see ECF No. 156 at 341:12–13, and when pressed stated that “it seems
like there is contact with me and Mehirdel and that his weight is pushing me forward,” see ECF
No. 156 at 342:20–21, but later corrected her testimony insisting that she never made contact
with Mehirdel, see ECF No. 156 at 345:11–13 (“Q: So you’re maintaining that you never made
contact with [Mehidel]? A: I know I never made contact with him.”).
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reasonable. Jones, 963 F.3d at 230; see also Adedeji, 935 F. Supp. 2d at 569; see also Mosby v.
City of New York, No. 20-cv-1485, 2022 WL 4095931, at *5 (S.D.N.Y. Sept. 7, 2022) (declining
on summary judgment to grant qualified immunity where issues of material fact remained as to
whether plaintiff was thrown to the floor without warning); Jones v. Parmley, 465 F.3d 46, 63
(2d Cir. 2006) (finding on summary judgment that allegations, if true, that nonviolent individuals
were thrown to the ground would preclude qualified immunity).
The conclusion that Defendants are not entitled to qualified immunity on Rizk’s
excessive force claim is reinforced by Defendants’ decision not to submit special interrogatories
to the jury. See ECF No. 157 at 471:1–16. Those interrogatories could have helped to resolve
the factual dispute between the parties as to whether Rizk made contact with Mehirdel. Having
“made a strategic choice to forgo submission of such questions to the jury,” Defendants cannot
argue now that the Court should decide the issue of qualified immunity based on the testimony
they believe is most favorable to them. Outlaw v. City of Hartford, 884 F.3d 351, 371 (2d Cir.
2018). Instead, the Court must construe all facts not decided expressly by the jury in the light
most favorable to Rizk and cannot “usurp the jury’s role by substituting its own finding.” Jones,
963 F.3d at 234–35.
II.

Denial of a Right to Fair Trial
A. Plaintiffs Denial of a Right to Fair Trial Claims Do Not Fail as a Matter of Law
“To prevail on a claim for denial of the right to a fair trial, a plaintiff must prove that an

‘(1) investigation official (2) fabricates information (3) that is likely to influence a jury’s verdict,
(4) forwards that information to prosecutors, and (5) the plaintiff suffers a deprivation of life,
liberty, or property as a result.’” Ekukpe, 823 F. App’x at 30–31 (citing Garnett v. Undercover
Officer C0039, 838 F.3d 265, 279 (2d Cir. 2016)). Defendants argue that Plaintiffs’ claims fail
because: (i) Plaintiffs did not introduce evidence at trial to establish that they suffered a post9

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arraignment deprivation of liberty, see ECF No. 151-1 at 11–14; (ii) Plaintiffs did not establish
that the alleged fabrication was the proximate cause of any post-arraignment deprivation of
liberty, see id. at 14–16; and (iii) there is no causal basis for Gonsalves to recover the money he
spent on a criminal defense attorney, id. at 16–17.
“When a plaintiff claims that the fabrication of evidence led to separate harms beyond the
deprivation of liberty caused by an arrest, she can prevail even if her arrest was supported by
probable cause.” Mosby, 2022 WL 4095931, at *7; see also Garnett, 838 F.3d at 277 (“The
setting of bail, which may make the difference between freedom and confinement pending trial,
and the prosecutor’s decision to pursue charges rather than to dismiss the complaint without
further action, may depend on the prosecutor’s and magistrate’s assessments of the strength of
the case, which in turn may be critically influenced by fabricated evidence.”).
Defendants argue that there was no evidence that Plaintiffs suffered a post-arraignment
deprivation of liberty, and therefore their claims for denial of the right to a fair trial fail. See
ECF No. 151-1 at 11. However, a reasonable jury could find that Plaintiffs: (i) did not hit or
strike Mehirdel; (ii) that Mehirdel fabricated that evidence; (iii) that prosecutors would not have
brought all of the charges they did against Plaintiffs but for that fabricated evidence; and (iv) as a
result, Plaintiffs would not have been held for the length of time they were detained. See
Wellner v. City of New York, 393 F. Supp. 3d 388, 396 (S.D.N.Y. 2019) (“A reasonable jury
could conclude that if [the officer] had not told [the prosecutor] that the plaintiff struck and
injured [the officer] with her vehicle, the plaintiff would not have spent as much time detained at
the precinct and Central Booking. Therefore, the defendants’ argument that the defendant
officers’ fabrication of evidence did not cause the plaintiff any deprivation of liberty fails.”); see
also Harris v. City of New York, No. 15-cv-8456, 2017 WL 6501912, at *8 (S.D.N.Y. Dec. 15,

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2017) (“[F]abricated evidence may cause a further deprivation if it adversely informs a
prosecutor’s charging and bail determinations.”). Gonsalves also testified to being suspended
without pay for 30 days as a result of the incident, see ECF No. 155 at 173:1–9; see also ECF
No. 155 at 95–98 (describing Gonsalves’s fitness for duty report which included language about
Gonsalves “push[ing] PO Mehirdel”). It is not unreasonable for a jury to also conclude that but
for the fabrication of evidence, Gonsalves would not have been suspended.
Moreover, Defendants’ argument that Plaintiffs did not establish that the fabrication at
issue was the proximate cause of the purported deprivation equally fails. “[A] police officer’s
submission of false information to a prosecutor may in itself serve as a proximate cause of the
deprivation of a criminal defendant’s right to a fair trial and deprivation of liberty.” Torres v.
City of New York, No. 20-cv-4007, 2022 WL 955152, at *10 (E.D.N.Y. Mar. 30, 2022) (citing
Shabazz v. Kailer, 201 F. Supp. 2d 386, 398 (S.D.N.Y. 2016)). Drawing all reasonable
inferences in Plaintiffs’ favor, it was reasonable for the jury to conclude that the fabricated
evidence that was forwarded to prosecutors substantially contributed to Plaintiffs’ deprivation of
liberty and property. Rizk specifically testified about how the criminal complaint—which
contained the fabricated evidence—likely affected the decision to prosecute Plaintiffs’ case. See
ECF No. 156 at 354:14–355:2 (“A: So with failure to prosecute . . . [prosecutors] usually just
take the cops word because we assume they’re going to be truthful. . . . [W]e rely on what they
say to write up the criminal court complaint. Now if there is . . . a videotape at the time we write
up the complaint. . . then we could . . . decline to prosecute [in that] moment. In this case, there
was no video given at the time of the criminal court complaint, it was given after, so the
dismissal came afterwards.”). Accordingly, the Court denies Defendants’ Motion on this claim.

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B. Plaintiffs’ Failure to Intervene Claims Do Not Fail as a Matter of Law 3
“Although [i]t is widely recognized that all law enforcement officials have an affirmative
duty to intervene to protect the constitutional rights of citizens from infringement by other law
enforcement officers in their presence, an officer may not be held liable unless he had a realistic
opportunity to intervene to prevent the harm from occurring.” Ekukpe, 823 F. App’x at 32.
Defendants argue that “no reasonable juror could find that defendant Lee observed and/or had
reason to know that defendant Mehirdel fabricated material evidence and forwarded that
evidence to prosecutors.” ECF No. 151-1 at 18. The jury heard testimony from Lee that
suggests he forwarded information to prosecutors containing the fabricated material evidence,
knew that it was going to be used in the complaint, and therefore had the opportunity to intervene
but failed to do so. See ECF No. 155 at 121:6–15 (“I believe I wrote [in my memo book] that
[Gonsalves] hit my partner . . . . Q: So you realize that when you prepare a memo book, that’s
one of the police documents that is going to the District Attorney’s Office; is that correct? A:
Yes.”). It is not unreasonable for the jury to conclude that Lee had an opportunity to correct the
information in his memo book. See Douglas v. City of New York, 595 F. Supp. 2d 333, 345
(S.D.N.Y. 2009) (“Whether an officer was personally involved in a constitutional violation, or
whether he can be held liable on a failure to intervene theory, is generally a question of fact for
the jury to decide.”).

3

Defendants argue that because Plaintiffs fail to substantively oppose Defendants’
arguments as to this issue, or only mention it “briefly,” Plaintiffs’ failure to intervene claims
should be dismissed as to Defendant Lee. ECF No. 158 at 4. As the moving party, Defendants
bear the “heavy burden” on a Rule 50 motion. Fox, 462 F. Supp. 3d at 244. Accordingly, the
Court declines to dismiss the jury’s verdict on account of Plaintiffs’ counsel’s failure to
substantively address arguments in opposition to Defendants’ motion on the failure to intervene
claim.
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III.

Intentional Infliction of Emotional Distress
Under New York law, the “tort of intentional infliction of emotional distress has four

elements: (1) extreme and outrageous conduct, (2) intent to cause severe emotional distress, (3)
a causal connection between the conduct and the injury, and (4) severe emotional distress.”
Bender v. City of New York, 78 F.3d 787, 790 (2d Cir. 1996); see also Final Jury Instructions,
ECF No. 148 at 35. At summary judgment, the Court found that “[a]lthough some district courts
have observed that false accusations of criminal conduct generally do not rise to the level of
extreme and outrageous conduct that is necessary to support an IIED claim, other district courts
have allowed IIED causes of action to proceed for the making of false reports . . . and for plotting
to make, and making of, false statements about the conduct of a plaintiff.” ECF No. 90 at 36–37
(citations and internal quotation marks omitted).
Defendants argue that, in light of the jury’s finding that there was probable cause for
arrest, “any claim of distress stemming from the arrest itself must now fail.” ECF No. 151-1 at
31. The Court disagrees and finds that whether Defendants’ conduct was “sufficiently
outrageous to satisfy the conduct of the emotional distress tort” was an issue of fact for the jury
to decide because of the conflicting testimony about whether: (i) Plaintiffs assaulted Mehirdel;
(ii) any subsequent use of force was excessive; and (iii) whether Mehirdel initiated false charges
against Plaintiffs. Bender, 78 F.3d at 791. The jury reviewed video footage of the incident and
was presented with evidence of alleged excessive force. See supra; ECF No. 156 at 299:20–22
(“And [Mehirdel] got up and he threw me against the car. I have never been thrown against a car
in my life like that, let alone by a police officer.”). As discussed previously, the jury was also
presented with evidence of alleged fabricated testimony, supra. Rizk herself testified to her
distress as linked to the fabrication of charges and her prosecution. See ECF No. 156 at 316:1–6
(“I was thinking and fearing the worst, that I would be fired. . . . The criminal court complaint
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that was submitted by Officer Mehirdel [sic] going to be the demise of my career.”). Moreover,
contrary to Defendants’ assertion, Dr. Korte’s testimony “linked . . . [Rizk’s] distress to a
fabrication of evidence.” ECF No. 151-1 at 31; see ECF No. 156 at 262:3–8 (“[The PTSD] came
to be a problem, for instance, in the discovery part of where the ADA questions the police about
what happened. She would sometimes have a hard time believing them, wanted to believe them
but wondered are they telling the truth because her police report, I was told, is far different from
what actually happened in the event.”). Accordingly, the Court cannot conclude that “there is no
legally sufficient evidentiary basis for a reasonable jury” to find for Plaintiff Rizk on her IIED
claim. Woolfolk, 2022 WL 3358081, at *2 (internal quotation marks omitted).
IV.

Punitive Damages
The jury awarded Plaintiffs a total of $37,120 in damages: (i) Gonsalves and Rizk were

awarded $13,000 and $2,120, respectively, in compensatory damages; 4 and (ii) $11,000 each in
punitive damages. ECF No. 147 at 6–7. With respect to punitive damages, the jury awarded
each Plaintiff $5,500 from each Defendant. Id. at 7. Gonsalves’s punitive damages award was
therefore 15% less than his compensatory damages, although Rizk’s punitive damages award
was slightly more than five times her compensatory damages.
As with other forms of damages, determining the amount of punitive damages “is a
quintessential responsibility of juries,” which should not be set aside unless the jury’s decision
“shock[s] the conscience or amounts to a miscarriage of justice.” Jennings v. Yurkiw, 18 F.4th
383, 389–90 (2d Cir. 2021) (internal quotation marks omitted) alteration in original). “The

4

Gonsalves testified that he was suspended as a result of the arrest and “lost a month of
pay, which is $8,000” and had to hire a lawyer which cost him $5,000. See ECF No. 156 at
402:21–23. Dr. Korte testified that Rizk paid him a co-pay of $20 for each therapy session over
the span of six years (initially once or twice week, later other week and then eventually once a
month). See ECF No. 156 at 259:16–23, 265:11.
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purpose of punitive damage awards is to punish the defendant and to deter the defendant and
others from engaging in similar conduct in the future. The decision to award punitive damages is
a discretionary moral judgment made by the jury.” Cruz v. Henry Modell & Co., Inc., No. 05-cv1450, 2008 WL 905356, at *8 (E.D.N.Y. Mar. 31, 2008) (citations and internal quotation marks
omitted). However, punitive damages must be “reasonable” and “rational in light of their
purpose to punish what has occurred and to deter its repetition.” Cruz, 2008 WL 905356, at *8
(citing Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 21 (1991)). To determine the
reasonableness of a punitive damages award, courts consider the “(1) degree of reprehensibility
of the defendant’s conduct, (2) relationship of the punitive damages to the compensatory
damages, and (3) criminal and civil penalties imposed by the state’s law for the misconduct in
question.” Jennings, 18 F.4th at 390.
Defendants have challenged only the first of these factors—the degree of reprehensibility
of their conduct. They contend that the jury’s finding of punitive damages should be vacated
because no reasonable jury could find that Mehirdel “acted with evil motive or intent or with
reckless or callous indifference to [Rizk’s] federally protected rights.” See ECF No. 151-1 at 32;
see also Adedeji, 935 F. Supp. 2d at 571 (“[P]unitive damages may be awarded where the jury
finds that the acts of the defendant were done . . . with reckless or callous disregard for the rights
of the injured person.”) (internal quotation marks omitted).
The jury could have reasonably concluded that Defendants acted with “reckless or callous
disregard,” a finding supported by the jury’s determination that Defendants denied Plaintiffs the
right to a fair trial, and that Mehirdel used excessive force and intentionally inflicted emotional
harm against Rizk. ECF No. 147; Adedeji, 935 F. Supp. 2d at 571. Although Defendants focus
on Mehirdel’s state of mind when using force to arrest Plaintiffs, see ECF No. 151-1 at 32, the

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jury was entitled to consider the totality of Defendants’ conduct related to all of the claims on
which Plaintiffs prevailed at trial. As discussed previously, the evidence presented at trial was
sufficient to support the jury’s findings on each of the aforementioned claims. Notably, the jury
was entitled to account for Defendants’ “fabricated evidence” and/or “false accounts” of
Plaintiffs’ arrest when deciding the punitive damages award. Jennings, 18 F.4th at 391
(affirming award of punitive damages against police officers in Section 1983 case).
Defendants have not addressed the other factors relevant to the propriety of punitive
damages, but the jury’s award withstands scrutiny under those criteria as well. Even Rizk’s
punitive damages award of approximately five times her compensatory damages is similar to an
award that the Second Circuit recently affirmed in a Section 1983 case and is less than awards
other courts have allowed in such cases. Jennings, 18 F.4th at 391–92 (“Given the constellation
of intentional misbehavior by the officers, we see nothing untoward about the 1:4 ratio between
compensatory and punitive damages.”); see also Anderson v. Osborne, No. 17-cv-539, 2020 WL
6151249, at *8 (S.D.N.Y. Oct. 20, 2020) (“[T]he ratio between the punitive and compensatory
damages awards (7.67:1) does not shock the judicial conscience.”) (internal quotation marks
omitted); Shepherd v. Fischer, No. 08-cv-9297, 2018 WL 3122053, at *7 (S.D.N.Y. June 26,
2018) (upholding award of $1 in nominal damages and $20,000 in punitive damages).
Accordingly, the Court declines to vacate the jury’s finding of punitive damages.

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CONCLUSION
For the foregoing reasons, Defendants’ Motion is denied.
SO ORDERED.
/s/ Hector Gonzalez__________
HECTOR GONZALEZ
United States District Judge

Dated: Brooklyn, New York
October 5, 2022

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