Field Day, LLC et al v. County of Suffolk et al

Filing 358

ORDER denying 334 Motion for Judgment as a Matter of Law; denying 334 Motion for New Trial: Plaintiffs motion for judgment as a matter of law or, alternatively, for a new trial is denied. See attached Memorandum. Ordered by Judge Denis R. Hurley on 3/18/2015. (Gapinski, Michele)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------X
FIELD DAY, LLC, f/k/a/NEW YORK MUSIC
FESTIVAL, LLC, AEG LIVE LLC f/k/a
AEG CONCERTS LLC,
Plaintiffs
-againstCOUNTY OF SUFFOLK, SUFFOLK COUNTY
DEPARTMENT OF HEALTH SERVICES,
SUFFOLK COUNTY EXECUTIVE ROBERT
GAFFNEY, COMMISSIONER OF THE SUFFOLK
COUNTY DEPARTMENT OF HEALTH
SERVICES BRIAN L. HARPER, COMMISSIONER
OF SUFFOLK COUNTY POLICE DEPARTMENT
JOHN C. GALLAGHER, DIRECTOR OF SUFFOLK
COUNTY DEPARTMENT OF HEALTH SERVICES
ROBERT MAIMONI, CHIEF OF THE BUREAU OF
PUBLIC HEALTH PROTECTION BRUCE
WILLIAMSON, PRINCIPAL PUBLIC HEALTH
SANITARIAN ROBERT GERDTS, DEPUTY
SUFFOLK COUNTY ATTORNEY ROBERT
CABBLE, DEPUTY SUFFOLK COUNTY
EXECUTIVE JOE MICHAELS, SERGEANT
PATRICK MAHER OF THE SUFFOLK COUNTY
POLICE DEPARTMENT, THE TOWN OF
RIVERHEAD, RIVERHEAD CHIEF OF POLICE
DAVID HEGERMILLER and NEW YORK
STATE HEALTH COMMISSIONER ANTONIA
C. NOVELLO.
Defendants.
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APPEARANCES:
O'Melveny & Myers LLP
Attorneys for Plaintiffs
7 Times Square
New York, New York 10036
By:
Charles E. Bachman, Esq.
Mark A. Racanelli, Esq.

MEMORANDUM & ORDER
Civil Action No. 04-2202

Dennis M. Brown, Suffolk County Attorney
Attorneys for Suffolk County Defendants
100 Veterans Memorial Highway
P.O. Box 6100
Hauppauge, New York 11788
By:
Christopher A. Jeffreys, Esq.
HURLEY, Senior District Judge:
Having heard testimony over approximately five weeks, the jury in this case returned a
verdict in favor of the defendants County of Suffolk (“Suffolk” or “County”), Robert Gaffney
(“Gaffney”), Robert Gerdts (“Gerdts”), Robert Cabble (“Cabble”), John Gallagher (“Gallagher”),
and Joseph Michaels (“Michaels”) (Gaffney, Gerdts, Cabble, Gallagher, and Michaels are
collectively referred to as the “Individual County Defendants”) on the four claims presented by
plaintiffs Field Day, LLC, f/k/a/New York Music Festival, LLC, and AEG Live LLC f/k/a
AEG Concerts LLC (collectively “plaintiffs” or “Field Day”), viz. Claim One: deprivation of
plaintiffs’ First Amendment right of free speech under 42 U.S.C. § 1983 against the Individual
County Defendants; Claim Two: Section 1983 Monell claim against the County; Claim Three:
Section 1983 conspiracy claim against the Individual County Defendants; and Claim Four:
deprivation of plaintiffs’ right to free speech under Article 1, Section 8 of the New York State
Constitution against the County and the Individual County Defendants. Presently before the
Court is plaintiffs’ post-trial motion seeking judgment as a matter of law or a new trial, pursuant
to Federal Rules of Civil Procedure 50(b) and 59, against Gerdts and the County on Claims One,
Two and Four. For the reasons set forth below, the motion is denied.

2

BACKGROUND
I.

Overview
The background of this action is set forth in the prior decisions of this Court. Familiarity

with those decisions is presumed. It suffices to note that this action arises out of Field Day's
efforts to promote and produce a two-day music festival featuring leading rap, hip-hop, and rock
artists which was to take place June 7-8, 2003 (the "Festival"). After considering other locations
and after several months of negotiations, Field Day entered into a "License Agreement for
Outdoor Event" (the "Agreement") with the Riverhead Community Development Agency
("CDA"), a "public instrumentality" of the Town of Riverhead (“Riverhead”) on February 20,
2003 to use a site referred to as “EPCAL.” Under the terms of the Agreement, Field Day had the
responsibility of securing "a 'Mass Gathering Permit' or such other assembly permit as is deemed
necessary by the Commissioner of the Suffolk County Department of Health" prior to the concert
"and a 'Special Event Permit' from the Town of Riverhead . . . ." The CDA agreed to provide
sufficient police protection and both parties agreed to undertake all necessary coordination with
state, county, and local law enforcement agencies. Over the next several months, Field Day
worked with Riverhead and Suffolk County in order to obtain the mass gathering permit. On May
27, 2003, Field Day's application for a mass gathering permit was denied via a letter from Gerdts
which reads in pertinent part:
Chapter 1 State Sanitary Code Subpart 7-1 Temporary Residences
and Mass Gatherings § 7-1:41 [1] requires that applications for a
1

The citations in this opinion to the Mass Gathering Law and the Sanitary Code are in
accordance with how they existed in 2003.
3

permit to operate a mass gathering be accompanied by an
engineering report. This report must include, in part, "a statement
from the County sheriff, State police, New York State Department
of Transportation or other law enforcement agency certifying that
the traffic control plan is satisfactory."
The Department has received notification from David J.
Hegermiller, Chief of Police, Town of Riverhead, that his
Department alone cannot implement an effective traffic control
plan and therefore, is not able to support the issuance of the permit.
Accordingly, your application for a permit to operate a mass
gathering is denied.
(Pl. Ex. 44.) Field Day then moved the venue of the concert to Giants’ Stadium and scaled it
back to a one day event.
On May 26, 2004, Field Day commenced this action alleging, inter alia, that the Town of
Riverhead and Suffolk County, through their employees, deprived them of their First
Amendment rights by unlawfully failing to approve its mass gathering application, imposing
arbitrary requirements to obtain certification of traffic control plans and intermunicipal
cooperation and refusing to provide police protection and other public assistance requested by
local law enforcement. (DE 44.) After the conclusion of pretrial motions, a settlement with the
Town of Riverhead and its employees, and the discontinuance of claims, the matter was tried
before a jury on the four claims noted earlier, i.e., Claim One: deprivation of plaintiffs’ First
Amendment right of free speech under 42 U.S.C. § 1983 against the Individual County
Defendants; Claim Two: Section 1983 Monell claim against the County; Claim Three: Section
1983 conspiracy claim against the Individual County Defendants; and Claim Four: deprivation of
plaintiffs’ right to free speech under Article 1, Section 8 of the New York State Constitution
against the County and the Individual County Defendants. The jury returned a final verdict in
4

favor of the County and the Individual County Defendants.
II.

Legal Standard
A.

Rule 50

Rule 50 "imposes a heavy burden on a movant, who will be awarded judgment as a matter
of law only when 'a party has been fully heard on an issue during a jury trial and the court finds
that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on
that issue.' " Cash v. County of Erie, 654 F.3d 324, 333 (2d Cir. 2011), cert. denied, 132 S. Ct.
1741 (2012) (quoting Fed. R. Civ. P. 50(a)(1)); accord Bucalo v. Shelter Island Union Free Sch.
Dist., 691 F.3d 119, 127-28 (2d Cir. 2012). The "burden is particularly heavy where, as here, the
jury has deliberated in the case and actually returned its verdict in favor of the non-movant."
Cash, 654 F.3d at 333 (internal quotation marks omitted); accord Cross v. N.Y. City Transit
Auth., 417 F.3d 241, 248 (2d Cir. 2005). "Under such circumstances, the district court may set
aside the verdict only where there is such a complete absence of evidence supporting the verdict
that the jury's findings could only have been the result of sheer surmise and conjecture, or there is
such an overwhelming amount of evidence in favor of the movant that reasonable and fair
minded [persons] could not arrive at a verdict against him." Id. (citations, alterations, and
internal quotation marks omitted); accord Stampf v. Long Island R. Co., 761 F.3d 192, 197-98
(2d Cir. 2014); see also, e.g., Zellner v. Summerlin, 494 F.3d 344, 371 (2d Cir. 2007) (stating that
a Rule 50 motion may be granted only if the court concludes that "a reasonable juror would have
been compelled to accept the view of the moving party" (internal quotation marks omitted)).
In deciding a motion under Rule 50, the Court must disregard any evidence that weighs
against the jury's verdict unless the jury was required to believe it. Zellner, 494 F.3d at 370
5

(citing Reeves v. Sanderson Plumbing, 530 U.S. 133, 150-51, 120 S. Ct. 2097, 147 L. Ed.2d 105
(2000)). The question is whether, if credibility assessments are made against the moving party
and all reasonable inferences are drawn against the moving party, a reasonable jury nevertheless
would have no choice but to find in the movant's favor. Zellner, 494 F.3d at 370-71 (citing
Piesco v. Koch, 12 F.3d 332, 343 (2d Cir. 1993)). In other words the court may only grant a Rule
50 motion in this posture if there is " ‘such a complete absence of evidence supporting the verdict
that the jury's finding could only have been the result of sheer surmise or conjecture, or . . . [there
is] such an overwhelming amount of evidence in favor of the movant that reasonable and fair
minded men [and women] could not arrive at a verdict against him.' " Cross, 417 F.3d at 247
(quoting Song v. Ives Labs., Inc., 957 F.2d 1041, 1046 (2d Cir. 1992)). “Judgment as a matter of
law on an issue as to which the movant bears the burden of proof is rare." Broadnax v. City of
New Haven, 415 F.3d 265, 270 (2d Cir. 2005) (internal quotation omitted).
B.

Rule 59

Federal Rule of Civil Procedure 59 provides that a Court may order a new trial "for any
reason for which a new trial has heretofore been granted in an action at law in federal court." Fed.
R. Civ. P. 59(a)(1)(A). The standard for granting a new trial under Rule 59(a) is less stringent
than the standard for judgment as a matter of law under Rule 50. See, e.g., Manley v. AmBase
Corp., 337 F.3d 237, 244-45 (2d Cir. 2003). Granting a new trial is appropriate where "the jury
has reached a seriously erroneous result or its verdict is a miscarriage of justice." Nimely v. City
of N.Y., 414 F.3d 381, 392 (2d Cir. 2005) (internal quotation marks and citations omitted).
"Unlike judgment as a matter of law, a new trial may be granted even if there is substantial
evidence supporting the jury's verdict. Moreover, a trial judge is free to weigh the evidence
6

himself, and need not view it in the light most favorable to the verdict winner." DLC Mgmt.
Corp. v. Town of Hyde Park, 163 F.3d 124, 134 (2d Cir. 1998). But when "a verdict is
predicated almost entirely on the jury's assessments of credibility, such a verdict generally should
not be disturbed except in an egregious case, to correct a seriously erroneous result, or to prevent
a miscarriage of justice." ING Global v. United Parcel Serv. Oasis Supply Corp., 757 F.3d 92,
99 (2d Cir. 2014) (internal quotations omitted); see also Raedle v. Credit Agricole Indosuez, 670
F.3d 411, 417-19 (2d Cir. 2012) (noting that a district court judge "must exercise their ability to
weigh credibility with caution and great restraint," and may not "freely substitute his or her
assessment of the credibility of witnesses for that of the jury simply because the judge disagrees
with the jury" (quoting DLC Mgmt. Corp., 163 F.3d at 134, and United States v. Landau, 155
F.3d 93, 104 (2d Cir.1998)).
DISCUSSION
I.

Plaintiffs’ Rule 50 Motion
The basis for plaintiffs’ Rule 50 Motion may be fairly summarized as follows: The letter

denying the mass gathering permit “cited only one basis for den[ial] . . .: Field Day’s alleged
failure to obtain a certified traffic control plan pursuant to Section 7-1.41(d)(2) of the Mass
Gathering Law.” (Pl. Mem. at 11.) However, section 7-1.41 (d)(2) makes clear and Gerdts
admitted that the requirement to obtain a certified traffic control plan applied only to events that
planned non-contiguous parking. “The evidence overwhelming showed that Field Day did not
have non-contiguous parking.” (Id.) As the only basis recited by the defendants for the permit
denial did not apply, judgment as a matter of law is mandated for Field Day. Further, defendants
cannot, “post hoc . . . substitute some other basis, other than that cited in the Denial Letter, to
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justify the permit denial.” (Id. at 13.)
A.

The Reasonableness of the Permit Denial
Is Not Limited By the Denial Letter

The Court turns first to the argument that defendants cannot invoke reasons for the denial
of the mass gathering permit other than the reason provided in its May 27, 2003 denial letter. As
support, plaintiffs cite (1) caselaw for the proposition that in reviewing the propriety of an
administrative agency’s determination, a court must confine its focus to the grounds cited by the
agency, and (2) earlier decisions issued in this case. Both these grounds have previously been
rejected by this Court.
Plaintiffs raised this same argument in their memoranda of law for the parties’ motion
and cross-motion for summary judgment, relying on the following excerpt from the Second
Circuit’s decision affirming the denial of the County Defendants’ motion to dismiss:
To the extent that the Suffolk County Employees now invoke other
sections of the Sanitary Code to support the denial of the Application,
New York law limits this Court’s review “to the grounds invoked by the
agency.” . . . Furthermore, in accordance with the interpretation of the
Mass Gathering Law and Sanitary Code given above, the rejection of the
Application based on any other ground would still have to be reasonable,
and Field Day has alleged that the rejection was unreasonable.
Field Day, LLC v. Cnty. of Suffolk, 463 F.3d 167, 194 (2d Cir. 2004) (citation omitted). (See DE
190 at p. 20-21; DE 172 at p. 5; DE 168 at p 6.) In rejecting the argument that the quoted excerpt
precluded the trier of fact from considering other reasonable grounds proffered by the County,
this Court wrote:
The Second Circuit was simply explaining its appellate role in reviewing
the motion to dismiss. There is evidence in the record that would permit
8

the trier of fact to conclude that other reasonable grounds for the County’s
decision existed. For example, if the jury found that requiring 200 police
officers for the Festival was reasonable and the County’s decision not to
supply officers in the absence of a[n] intermunicipal agreement
appropriate, then the jury could conclude that public safety concerns
provided a valid basis to deny the Mass Gathering Permit.
(Mem. & Order, dated June 28, 2011 (DE 216) at 21.)
Prior to trial, in an in limine motion, plaintiffs again sought to limit the County and
County Defendants in their defense of the permit denial. In support, plaintiffs relied upon
established law that a reviewing court, when evaluating what transpired in an administrative
proceeding, is confined to the reasons cited by the administrator. Acknowledging that caselaw,
this Court found it did not limit defendants’ defense of the permit denial as none of the causes of
action in the complaint seek to reverse what Suffolk County did in denying the mass gathering
permit per se. “It is significant that we are not talking about an application to reverse or to set
aside or modify what the Suffolk County Health Department did in denying the mass gathering
permit.” (Tr. at 25.) “[T]o grant the relief requested by the plaintiffs would be fundamentally
unfair in the sense it’s completely out of sync with the nature of the dispute as framed by the
pleadings and as developed during the course of discovery at great length. The defendant has a
right to defend the charged constitutional violations and . . . cannot be limited to the one ground
cited in the denial.” (Tr. at 29.)
Nothing in the instant motion convinces this Court that its summary judgment and in
limine rulings were erroneous. Indeed, the Court’s charge to the jury, unobjected to by plaintiffs
( see Tr. 3752-56), was consistent with these rulings. The jury was charged that plaintiffs had to
prove by a preponderance of the evidence that “one or more of the individual defendants

9

intentionally or recklessly deprived them of their First Amendment Right to hold the music
festival by improperly denying them a mass gathering permit.” (Tr. 3968 (emphasis added).) The
jury was further instructed:
freedom of speech - here, the right to assemble and hold a music festival is not absolute. Which is to say, governmental entities are entitled to
impose reasonable restrictions if intended to promote such goals as, for
example, the public health and safety. However, you should consider all
of the evidence relating to defendants’ actions in denying plaintiffs’ mass
gathering permit application, including whether and the extent to which
their actions were reasonable or unreasonable. In sum, in evaluating
whether the individual county defendants unlawfully denied plaintiffs’
First Amendment Rights, you should review all the evidence including the
evidence relating to the May 27, 2003 denial of the subject mass gathering
permit and the events leading-up to that denial. It is for you to determine
whether the defendants’ actions were recklessly or intentionally pursued in
violation of plaintiffs’ First Amendment Rights (as plaintiffs contend) or,
conversely, were undertaken by the County Defendants in a legitimate
effort to address public safety concerns (as the Individual County
Defendants maintain).
(Tr. 3970-71.) It is also noteworthy that plaintiffs’ own proposed charge on the First
Amendment claim is inconsistent with limiting defendants to what was set forth in the denial
letter.2
Thus, plaintiffs are not entitled to judgment as a matter of matter of law merely because
2

That proposed charge reads, in pertinent part:
In evaluating whether the Individual Suffolk County Defendants
unlawfully denied Plaintiffs’ First Amendment rights, you should consider
all of the evidence relating to Defendants’ actions in denying Plaintiffs’
mass gathering permit application, including whether and the extent to
which their actions were arbitrary, politically motivated, unreasonable or
capricious. You should also consider . . . whether the reasons Defendants
gave for denying the permit were pretext, whether Defendants properly
applied the law governing the issuance of mass gathering permits, and
whether Defendants required that Plaintiffs meet conditions that were not
required by the mass gathering law.”
DE 287 at p.12.
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there was to be no contiguous parking and therefore there was no need for a “certified” traffic
plan.3 As detailed below, the jury could have concluded that the reference to a “certified” traffic
plan was the result of a mistake and that the denial of the permit was reasonable based on the
lack of an effective traffic control plan and/or the lack of police support for the Festival.
B.

The Reference to a “Certified” Traffic Plan
May Have Been the Result of a Mistake

The jury could have concluded that while there was no noncontiguous parking, the
reference in the denial letter to the need for a “certified” traffic plan was the result of negligent,
not intentional, reckless, or otherwise nefarious, conduct. It is uncontroverted that Gerdts, who
was the County’s lead permitting agent and placed in charge of reviewing Field Day’s permit
application, and the other County Health Department employees involved, had no experience
with the Mass Gathering law. (Tr. 1726, 1920-22, 2165.) It seems that Gerdts in formulating his
check list of the requirements of the Sanitary Code for issuance of a mass gathering permit may
have erroneously parsed § 7-1.41(d)(2) into separate and unrelated requirements. This could
explain why Gerdts referenced that section knowing all parking was to be contiguous.
Section 7-1.4(d)(2) required an engineering report containing “detailed plans for
transportation arrangements from noncontiguous parking . . . ; including a statement from
. . . [a] law enforcement agency certifying that the traffic control plan is satisfactory.” Gerdts’

3

Defendants did present some evidence, albeit thin, about noncontiguous parking.
According to the deposition testimony of Neil Ryan read at trial, there was a parking lot across
the road from EPCAL that was going to be used as “staging area” i.e. a parking place for
patrons who arrived at the concert early so they would not block the road before the gates
opened. (Tr. at 3725-3726; see also Tr. at 1778 (testimony of Linda Mermelstein that her
understanding was there would be offsite parking.) However, Gerdts did testify that at the time
he wrote the denial letter he knew there was no offsite, i.e. noncontiguous, parking. (Tr. 1841).
11

check list contained two requirements for this subsection: (1) a detailed plan for transportation
arrangements from noncontiguous parking and (2) a statement from a law enforcement agency
certifying that the “traffic control plan” is satisfactory. (See, e.g., Pl. Tr. Exs. 28 &115 at p.
115.010.) It appears that by Gerdts’ omission of the word “including,” he untethered the first
requirement from the second. Indeed, it would not be unreasonable to require a certified traffic
plan where a large number of attendees are expected - in this case up to 60,000 as specified to
Field Day’s permit application; both County employees and Field Day personnel were under the
impression that, at the very least, an “approved” traffic plan was needed. Williamson of the
Suffolk County Department of Health included it in his April 17, 2003 letter as one of the
requirements for issuance of the permit. (Pl. Tr. Ex. 94.) Christopher Kent, the local attorney
hired by Field Day to help with the permitting process, and Andrew Dreskin, the Chief Operating
Office of Field Day LLC, both referred to the need to have the Riverhead police sign off on or
approve the traffic control plan. ( Id.; Tr. 523-25, 622, 1714; Def. Tr. Ex. 50; see also Tr. at
1119, 1556-57.) Chief Hegermiller himself believed he had to sign off on the mass gathering
permit or it would not be issued. (Tr. 1556-67.)
C.

The Need for a Traffic Plan Sufficient
to Ensure the Public Safety

Even though a “certified” traffic plan may not have been required, a traffic plan
appropriate for the projected number of concert-goers was needed. According to Field Day’s
permit application, the Festival was designed for “60,000 attendees,” with attendance per day of
“between 40,000 and 60,000, of which a moderate percentage is likely to camp at the event.” (Pl.
Tr. Ex. 7 at p. 7.004; see also Pl. Tr. Ex. 68.) Indeed, the parties stipulated that “[w]hether the

12

event is denominated as a mass gathering or public function, there needs to a be a traffic control
plan that provides a way for emergency vehicles to get in and out of the proposed venue and the
surrounding area.” (Tr. 3944; see also 10 N.Y.C.R.R. § 7-1.43(a) (requiring the site “to be
serviced by access roads which will permit an adequate flow of traffic and ensure the free
passage of emergency vehicles.”).) Here, there was substantial evidence from which the jury
could conclude that plaintiffs’ traffic plan was inadequate and the potential for monumental
traffic issues precluding the passage of emergency vehicles justified the denial of the mass
gathering permit.4
David Candelaria of the New York State Police drove the roads surrounding the EPCAL
site and did a total site overview in a helicopter. Both times he determined that the roads could
not safely handle the event. Route 25, the main access road to the site, is one lane in either
direction and for portions of the road there is no usable shoulder. (Tr. 2874; 2855; 2838-39.)
Suffolk County Police Commissioner Gallagher also drove the two main routes (Route 25
and Wading River Road) that Field Day proposed to have attendees access the EPCAL site.
Having received much information from others, he felt he should go out and investigate the
route himself. While both roads are one lane in either direction, Route 25 was the road of most
concern as there were portions without a shoulder. Because of the absence of a shoulder for a
good portion of the road, there was no way to get any type of emergency vehicle past traffic if it
was stalled. Taking into account that it is very unlikely to have an empty road on eastern long
island on a summer afternoon or evening, use of the oncoming traffic lane, as suggested by Field

4

Although inartfully phrased to say the least, the denial letter did reference the inability to
implement an effective traffic control plan.
13

Day’s traffic consultant (Tr. 1045-56) was not feasible. (Tr. 472-73, 2389; 2399-2405; 2451-56.)
Even in the absence of non-concert traffic, use of the oncoming traffic lane was extremely
problematic during the time that Saturday’s attendees would be exiting and Sunday’s attendees
arriving. As plaintiff’s traffic engineer acknowledged, during the time that both Saturday’s
attendees would be trying to leave and Sunday’s attendees would be arriving, there will be
“major logistical problems . . . this confusion of entering and leaving at the same time will
increase the probability that the transportation system will fail.” (Def. Tr. Ex. 168.) According to
Commissioner Gallagher, he could not reasonably assure that emergency vehicles could get to
people located along Route 25 if the Festival were held. (Tr. 2383, 2455.)
Plaintiffs’ own event planner also expressed concern for traffic backups approaching the
concert venue: “Remember . . . we are out on Eastern LI and I don’t have any special or secret
routing up my sleeve. . . . If they gridlock, you’ll have a bigger problem on your hands than
worrying about a good experience for the kids!” (Def. Tr. Ex. 65.) Also, the New York State
Department of Transportation by letter dated June 2, 2003 wrote to Field Day concerning
deficiencies in its traffic plan, including, among other things, failing to “provide an adequate
buffer to clear the expected traffic queues.” (Def. Tr. Ex. 287.) And although Robert Delagi of
Suffolk’s Department of Health testified that he had no problem with Field Day’s traffic plan
including ingress and egress for emergency vehicles, he also testified that he did not have
information regarding expected traffic patterns; he relied on the police department for that
information. (Tr. 2175-76.)
Examining Field Day’s proposed traffic plan (Pl. Tr. Ex. 4; see also Pl. Tr. Exs. 161,
163, 164) in light of the above and other testimony and evidence (see, e.g., Tr. 392-96, 450-54,
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475-76, 709, 1556, 3117-18, 3331-42; 3535, 3729; Def. Tr. Ex. 15), the jury could appropriately
conclude that denial of the mass gathering permit was reasonable because Field Day’s traffic plan
was inadequate to ensure the public’s safety.
In addition to traffic issues, as detailed by the evidence discussed below, the jury may
have determined that the lack of adequate police and the attendant effect on public safety was a
reasonable basis for denial of the permit.
D.

The Lack of Adequate Police for the Festival

The testimony of Linda Mermelstein, Acting Commissioner for the Suffolk County
Department of Health Services during the relevant period, is instructive. As Commissioner, the
final decision as to approval or denial of Field Day’s mass gathering permit application rested
with her. (Tr. 1767-68.) According to Mermelstein, in addition to the provision of the Sanitary
Code cited in the May 27 denial letter, Field Day has failed to get the support of the police:
“[W]e had letters from the police departments saying that they could not support the event, it
basically wouldn’t be safe. So it was also for the health and safety of the people who
participated.” According to Mermelstein, her department received letters from the Riverhead
Police Department, the New York State Troopers and the Suffolk County Police Department that
they could not support the event. (Tr. 1799-1800.) “I concluded that based on the fact that I had
letters from three different officials: state, town and county, all stating that they cannot support
the event, they wouldn’t approve the traffic control plan, that it would not be safe without the
police.” (Tr. 1804; see also Tr. 129-30 (Dreskin testimony that the consensus was that
uniformed police should be inside the event), Tr. 1948-50 (testimony of Robert Gerdts that the
police involvement needed to take place for the event to happen), Tr. 3143 (testimony of Robert
15

Maimoni that his understanding was the permit was denied because there was not sufficient
police) Tr. 3588-91 (testimony of County Executive that permit was denied in the interest of
public safety).) According to the Agreement, Riverhead was responsible to provide sufficient
police protection for the Festival. Yet the ability of the Riverhead Police Department to supply a
sufficient number of officers to ensure the public’s safety was a concern from the start.
1. Chief Hegermiller’s Initial Concerns
Upon learning of the Agreement, Riverhead Police Chief David Hegermiller wrote to the
Riverhead Town Supervisor on April 10, 2003, regarding the security, communications and
transportation concerns he had with Riverhead hosting the Festival. After noting that the
materials received from Field Day dated April 7, 2003 had “no substance,” Chief Hegermiller
went on to express that the time needed to plan a successful event would be at least ten to 12
months but there was less than two months to plan for the Festival and that additional police
manpower and equipment would be needed raising budgetary concerns. Traffic was another issue
which disturbed Chief Hegermiller given his experience with the traffic nightmare caused by a
much smaller event, as well as the fact that some of the traffic problem involved other townships
who might be unhappy with the lack of sufficient time to plan. Lastly, Chief Hegermiller
addressed evacuation and terrorism and the inability to evacuate the site quickly. (Pl. Tr. Ex. 96.)
Despite these reservations, Chief Hegermiller proceeded to solicit assistance from other
law enforcement agencies, principally the New York State Police and the Suffolk County Police.
Assistance was sought both with traffic and the policing of the grounds of the Festival.
2. New York State Police
One of the agencies contacted by Hegermiller was the New York State Police. (Def. Tr.
16

Ex. 349) David Candelaria, the emergency management NCO for Long Island attended a
meeting on behalf of the New York State Police in early April regarding the Festival. During the
meeting he advised Chief Hegermiller that there was not enough time to plan for an event of this
size; September 11 changed how the police planned for any large scale event and it now required
long-term planning of the event. According to Candelaria, one of the planning elements
necessary was a police traffic plan - which is totally separate from the promoter’s traffic plan.
The general consensus at the meeting was that over 200 troopers would be needed - not only
uniformed officers but “a bomb disposal unit, canine, tactical element, aviation and intelligence
investigators” - “a whole gamut of specialized services.” (Tr. 2824-28; 2878-80.) On April 16,
2003, Candelaria advised Chief Hegermiller that because of the lack of time to prepare and other
matters the State Police were involved in, including the need to put uniformed officers on both
the Long Island Railroad and MetroNorth Railroad because the terrorist alert was orange, they
would not be providing Riverhead with a large-scale detail. (Tr. 2845- 2847.)
3. Suffolk County Police Department
Chief Hegermiller also contacted the Suffolk County Police Department. Before
discussing testimony in that regard, the organization of police services in Suffolk needs to be
explained. The Suffolk County Police Department provides patrol services only to the five
western towns of Suffolk County, the five eastern towns - including Riverhead - having opted to
maintain their own police departments. The five western towns are organized into the Suffolk
County Police District and only residents of the five western towns are taxed for patrol services.
The Suffolk police department does provide specialized services, such as homicide investigators,
to all the ten towns in the County and the residents of all ten towns contribute taxes for these
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costs. According to the testimony, officers in the patrol division would be used to staff an event
such as Field Day. (Tr. 2909, 3287-90, 3296-7.)
Returning to Hegermiller’s request for assistance, the Riverhead Police Chief wrote to
Suffolk County Police Commissioner Gallagher on April 11, 2004, asking for assistance with
Field Day’s music festival, estimating a need for 200 police personnel, with Riverhead supplying
about 50. (Pl. Tr. Ex. 110) Assistance was also requested for two events, a Bonnaroo Concert
and the New York Air Show. Gallagher responded on April 22, 2003, writing that with respect
to Field Day: “Expenditures of basic salary costs alone . . . would be prohibitive for this
Department without reimbursement. . . . It is not possible for this Department to absorb a cost of
that magnitude. I would have to be assured of reimbursement from the Town of Riverhead or
some other source for these basic expenses.” (Pl. Tr. Ex. 112; see also Tr. 1539 (Gallagher
verbally advised Hegermiller on April 16 that the Suffolk police were not going to participate).)
By memorandum dated April 16, 2003, Chief Hegermiller advised the Riverhead Town
Supervisor that the New York State Troopers were unable to commit any personnel to assist
with Field Day. He further advised that the Suffolk County Police “advised that they would also
not commit any personnel to the event besides the traffic detail that would cover the problems
within the Suffolk County Police District.” He concluded by writing: “This memo is to inform
you that there is no way for us to handle this event without additional manpower. Hence, I would
not be able to give approval to the County’s mass gathering permit and subsequently the County
would not issue the mass gathering permits.” (Def. Tr. Ex. 350; Tr. 1549.) The Riverhead
Town Supervisor understood from Gallagher’s letter and Hegermiller’s memo that other than the
referenced traffic detail, the Suffolk police would not be participating in the Field Day event.
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(Tr. 1368-69.)
Nonetheless, one or more representatives of the Suffolk police department continued to
attend meetings regarding the festival for informational purposes. (Tr. 2076, 2144.) While
plaintiffs made much of the fact that none of the representatives of the Suffolk police department
who attended these meeting ever said that the Suffolk police would not be participating, the jury
could have concluded that was not surprising in view of Commissioner Gallagher’s April letter to
Chief Hegermiller. Additionally, Detective-Sergeant Maher, who attended many of the Festival
meetings on behalf of the Suffolk police, testified he had no authority to commit to the use of
Suffolk police. (Tr. 2095-2126, 2142.)
It would appear, however, that Suffolk was still open to the possibility of providing
assistance to Chief Hegermiller. At a meeting held on May 8, the Suffolk County Attorney’s
office was asked to investigate (1) whether the County police department could be reimbursed for
its costs to assist in the Festival; (2) would the department be able to obtain jurisdiction to
operate in Riverhead; and (3) how could the County be indemnified against any claims arising
from its participation in the event. (Tr. 2216-19.) The Suffolk County Attorney’s office
determined that in order to provide assistance to this event an intermunicipal agreement was
necessary and so advised both Field Day and Riverhead, first verbally on May 9 and then in
writing to Riverhead on May 15, 2003. (Def. Tr. Ex. 61; Pl. Tr. Ex. 93; Tr. 1374-75, 1722-27,
2232-33; see also Tr. 3296-97 (testimony of Joseph Monteith, plaintiffs’ liaison, that he
discussed with Field Day personnel in early May that because the Festival was within the
jurisdiction of Riverhead police, some kind of arrangement would have to be made by the Town
of Riverhead with the County as to jurisdiction and whether there would be a reimbursement).)
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The agreement would cover both reimbursement and indemnification of the County, as well as
authorize the Suffolk police to act within Riverhead’s jurisdiction. No assurances were made by
the County that the intermunicipal agreement could be effectuated in time for the Festival. (Tr.
1727.)
On May 19, Riverhead requested that the Suffolk County Attorney provide it with a draft
of the proposed agreement. (Pl. Tr. Ex. 91; Tr. 1382-84.) Assistant Suffolk County Attorney
Robert Cabble replied the next day. After noting that Riverhead had not addressed the issues
regarding cost allocation, defense, indemnification and police jurisdiction, he advised that any
agreement would need to be approved by the Suffolk County legislature and there was no
regularly scheduled meeting of the Legislature before the date of the event. (Pl. Tr. Ex. 91.)
Given the Police Commissioner’s concerns about the lack of time to prepare and the potential for
traffic precluding adequate access for emergency vehicles and the resultant threat to the public
safety of both residents and concert attendees, on May 22 the Suffolk County Executive decided
he would not call a special session of the legislature. (Tr. 2254-55, 2317, 3514, 3589-95.)
Commissioner Gallagher advised Chief Hegermiller, by letter dated May 23, that the
Suffolk County Police would not be assisting Riverhead with policing the Festival. (Pl. Tr. Ex.
39.) That same day, Chief Hegermiller wrote to Robert Gerdts and advised that given Suffolk
County would not be providing police assistance, he was “unable to support issuance of the
Mass Gathering Permit. If at some time in the immediate future, the Suffolk County Police
Department or some other police agency is able to assist . . . I then may be able to support the
issuance of the Permit.” (Pl. Tr. Ex. 42.)

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a. Timing of Suffolk County Police Department’s Decision
While plaintiffs characterize Suffolk’s decision not to provide police as having been
made at the last minute, there is evidence from which the jury could conclude that plaintiffs were
aware of possible problems on that front for several weeks prior to the issuance of the denial
letter. For example, there is Commissioner Gallagher’s April 22 letter to Chief Hegermiller (Pl.
Tr. Ex. 112) and Andrew Dreskin’s testimony regarding a lobbyist for Field Day contacting the
then New York governor in April on the subject of using the state police for the event (Tr. 603),
as well as reaching out to people with strong ties to Suffolk for assistance (Tr. 607). Dreskin also
admitted that in early May he knew that “police was an issue.” (Tr. 633.) In addition to
Commissioner Gallagher’s April 22 letter, the issue of cost was raised by the County Executive’s
office with Field Day’s public relations representative Gary Lewi on April 23. (Def. Tr. Ex. 45;
see also Def. Tr. Ex. 52.) Also, various traffic plans prepared by Creighton & Manning for Field
Day did not list the Suffolk County Police Department as one of the cooperating law enforcement
agencies. (Pl. Tr. Exs. 13, 43; Def. Tr. Exs. 161, 164; Tr. 1107, 1138, 1158, 1165.) Indeed, it
was not until after the May 9 meeting in which the need for an intermunicipal agreement was
discussed by the County with Field Day that the traffic plans were changed to add the Suffolk
County Police. (Tr. 1211-14.) Finally, no assurances were made that the County would provide
support. (Tr. 2095-2126, 2142.)
b. The Need for an Intermunicipal Agreement
Plaintiffs point to the fact that Suffolk County had never before refused to provide police
assistance for an event and had never before required an intermunicipal agreement to do so as
evidence that the county’s actions were unreasonable. Sufficient evidence exists, however, to

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conclude that both actions were reasonable. First, with respect to events such as the U.S. Open,
planning for the event started more than a year in advance providing police with sufficient time
to make plans to ensure the safety of the public. Here, the County police had only about two
months to plan this large event in a post 9/11 world. (Tr. 1500-01, 1516-18; Pl. Tr. Exs. 39, 97.)
Additionally, the jury could have concluded that just because the County had failed in the past to
secure an intermunicipal agreement should not preclude it from securing such an agreement for
Field Day. (Cf. Tr. 2230 (testimony of Assistant County Attorney Cabble that he did not know
that Suffolk had provided police to other events outside its jurisdiction without an intermunicipal
agreement).) After all, it was Riverhead who was receiving a large fee for the lease of EPCAL
and who had agreed to provide sufficient police protection, yet its residents did not underwrite
the costs of Suffolk County Police Department’s patrol services, i.e., the police district - the
services Riverhead sought to utilize. It was Riverhead who entered into an agreement to provide
sufficient police protection for the Festival without knowing whether there were sufficient
Riverhead police to ensure a safe event and without consulting other law enforcement agencies as
to whether they were able to assist by providing police officers. (Tr. 1352-53; see also Tr. 148183.) And when the Suffolk Police Commissioner advised Riverhead in April that it could not
absorb the cost of assistance and would need assurances of reimbursement to participate,
Riverhead did not respond with such an assurance.5 The jury could have concluded that the
intermunicipal agreement’s provision for reimbursement and indemnification of the County was
good stewardship, i.e., reasonable protection for the pocketbook’s of its residents. (Tr. 2216-17,

5

Indeed, while Riverhead had previously entered into intermunicipal agreements with the
County (Tr. 1228, 1263), there is no evidence it proposed such a solution in response to
Gallagher’s April letter.
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3556-59; see Tr. 2443 (Suffolk police budget had no line item for the Festival); Tr. Ex. 115 & Tr.
2105 (estimating cost to Suffolk of policing the Festival at over $500,000); Tr. 3116
(intermunicipal agreements used when there is an impact on finances of the County.)6
4. Riverhead Could Not Supply Sufficient Police for the Festival
Finally, the issue of the number of police needed to adequately police the Festival will be
briefly addressed. As noted earlier, the three police departments that looked at the Festival plans
determined that at a minimum 150 police officers were needed. See pp. 14-15 supra. While
plaintiffs proffered testimony that the number of officers was much less (see, e.g., Tr. 475-76,
617), the jury was not bound to accept that testimony. Of particular note is that Chief
Hegermiller was consistent in his professional opinion that without assistance from other law
enforcement, Riverhead could not adequately police the Festival and ensure the safety of all.
(Pl. Tr. Exs. 42, 96; Def. Tr. Ex. 350; Tr. 1549, 2214-16; see also 1988-89.)
The foregoing is but a portion of the evidence that supports the jury’s verdict. There is
neither a “complete absence of evidence supporting the verdict that the jury's findings could only
have been the result of sheer surmise and conjecture,” nor “an overwhelming amount of evidence
in favor of [plaintiffs] that reasonable and fair minded [persons] could not arrive at a verdict
against [them]." Accordingly, the motion pursuant to Fed. R. Civ. P. 50 is denied.

6

Plaintiffs maintained that an intermunicipal agreement was not necessary as the Suffolk
police could have provided support to Riverhead as “mutual aid.” Given the testimony that the
provision of support to another municipality under the concept of mutual aid is reserved for
emergencies (Tr. 1239-40, 1261, 2310-11), the suggestion that Suffolk should have provided
police officers for the Festival as mutual aid was not one the jury had to accept.
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II.

Plaintiffs’ Rule 59 Motion
The standards applicable to a Rule 59 application for a new trial are set forth supra. A

juxtapositioning of those standards or considerations against the facts at hand counsels against
granting the alternate relief sought, primarily for the reasons articulated with respect to plaintiffs’
Rule 50 motion. The case was well presented by both sides to a conscientious jury which
rendered a verdict consistent with the evidence. The Court is confident that there was neither a
miscarriage of justice nor a seriously erroneous result; a new trial is not warranted.
CONCLUSION
For the reasons provided above, plaintiffs’ motion for judgment as a matter of law or,
alternatively, for a new trial is denied.
Dated: Central Islip, New York
March 18, 2015

/s/ Denis R. Hurley
Denis R. Hurley
United States District Judge

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