Rivera et al v. The Incorporated Village of Farmingdale et al

Filing 239

MEMORANDUM & ORDER granting in part and denying in part 194 Defendant's Consolidated Motion in Limine. See attached Memorandum & Order. At the final pre-trial conference, scheduled for 1/7/14, the parties should be prepared to discuss, and this Court will separately address, Plaintiffs' Daubert motions and motion to permit leading questions on direct examination. Ordered by Judge Pamela K. Chen on 12/31/2013. (Lo, Justin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ISIDORO RIVERA, et al.,
Plaintiffs,
MEMORANDUM & ORDER
ON DEFENDANT’S MOTION
IN LIMINE

-against-

06-CV-2613 (PKC)
THE INCORPORATED VILLAGE OF
FARMINGDALE,
Defendant.
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PAMELA K. CHEN, United States District Judge:
This Court presumes the parties’ familiarity with the facts in this case, particularly as
they pertain to the claims against Defendant the Incorporated Village of Farmingdale (the
“Village”). 1 In essence, Plaintiffs claim that, in violation of the Fair Housing Act, 42 U.S.C.
§§ 3601 et seq., the Village carried out a redevelopment plan for an area populated
predominantly by Latinos, intending to discriminate against or, at the very least, having a
discriminatory impact on its Latino residents. Plaintiffs’ specific allegation is that, pursuant to
this plan, the Village facilitated Fairfield Acquisition, LLC’s (“Fairfield”) privately-funded
renovation of—thereby forcing Latino residents, including Plaintiffs, to vacate—a rental
apartment building in that area (the “Building” or “150 Secatogue Avenue”). See generally
Rivera, 784 F. Supp. 2d 133.
1

Judge Denis R. Hurley, who was previously assigned to this case, detailed the facts
relating to the claims against the Village in several of his decisions. See, e.g., Rivera v. Inc. Vill.
of Farmingdale, 784 F. Supp. 2d 133 (E.D.N.Y. 2011) (Hurley, J.) (denying the Village’s
summary judgment motion).

The parties have litigated this case for more than seven years, and are finally ready to go
to trial. In anticipation of a projected six-week trial, scheduled to begin on January 13, 2014, the
Village has filed an omnibus motion to exclude evidence (Dkt. No. 194). 2 For the reasons set
forth below, the Village’s motion is GRANTED in part and DENIED in part.
I.

Discussion
A. Standard of Review
A motion in limine lies in this Court’s “inherent authority to manage the course of its

trials.” Highland Capital Mgmt., L.P. v. Schneider, 551 F. Supp. 2d 173, 176 (S.D.N.Y. 2008)
(Leisure, J.). “The purpose of an in limine motion is to aid the trial process by enabling the Court
to rule in advance of trial on the relevance of certain forecasted evidence, as to issues that are
definitely set for trial, without lengthy argument at, or interruption of, the trial.” Palmieri v.
Defaria, 88 F.3d 136, 141 (2d Cir. 1996) (quotations omitted).
The Federal Rules of Evidence provide that “[r]elevant evidence is admissible unless any
of the following provides otherwise: the United States Constitution; a federal statute; these rules;
or other rules prescribed by the Supreme Court.” Fed. R. Evid. 402. Even relevant evidence
should be excluded, however, “if its probative value is substantially outweighed by a danger of
one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue
delay, wasting time, or needlessly presenting cumulative evidence.” Id. at 403.

2

In addition, Plaintiffs have filed two Daubert motions (Dkt. Nos. 199; 202) and a motion
to permit leading questions on direct examination (Dkt. No. 205). This Court will separately
address Plaintiffs’ three motions at the final pre-trial conference, scheduled for January 7, 2014.

2

B. Evidence Regarding the Secatogue Avenue Redevelopment Plan (“SARP”),
Traffic Enforcement Policies, Day Laborers, and Financing of the Building
The Village categorically challenges the admission of evidence regarding (i) the SARP
(Dkt. No. 196 (“Vill. Br.”), at 14-17); (ii) traffic enforcement policies (id. at 18-20); (iii) day
laborers (id. at 8-9); and (iv) financing for the purchase and renovation of the Building by
Fairfield (id. at 21). As the Village contends, any evidence in the above categories raises dual
admissibility concerns, i.e., that such evidence is (i) irrelevant and/or (ii) confusing, misleading,
and prejudicial.
The Village’s categorical challenges are little more than a veiled attempt to relitigate
findings that Judge Hurley made in denying the Village’s summary judgment motion. The
Village will not be permitted to invalidate Judge Hurley’s findings indirectly through a motion in
limine. See NIC Holding Corp. v. Lukoil Pan Ams., No. 05-CV-9372, 2009 WL 996408, at *2
(S.D.N.Y. Apr. 14, 2009) (holding that the court “will not indulge [the moving party’s] efforts to
revive its unsuccessful summary judgment arguments” in a motion in limine) (collecting cases);
U.S. Underwriters Ins. Co. v. Falcon Constr. Corp., No. 02-CV-4182, 2006 WL 3146422, at *3
(S.D.N.Y. Oct. 30, 2006) (“[The defendant’s] motion attempts to relitigate an issue already
decided by the Court. This is an improper use of an in limine motion. If [the defendant] wanted
to contest the legal conclusions in the Court’s [decision denying its summary judgment motion],
it should have filed a timely motion for reconsideration.”). 3
3

See also Williams v. Johnson, 747 F. Supp. 2d 10, 16 (D.D.C. 2010) (denying the
plaintiff’s motion in limine, which “recycle[d] the very same argument” in her partial summary
judgment motion that the district court already “rejected”); Sparks v. Susquehanna Cnty., No. 05CV-2274, 2009 WL 1598125, at *2 (M.D. Pa. June 5, 2009) (“The court has already addressed
this question in relation to defendants’ motion for summary judgment, concluding that the
question . . . should be left to the jury. . . . Since a motion in limine is not a proper place to
reargue a motion for summary judgment, the court will deny [the defendants’ motion in
limine].”); EEOC v. Schott N. Am., Inc., No. 06-CV-1246, 2009 WL 310897, at *2 (M.D. Pa.
3

In denying summary judgment, Judge Hurley found that, with respect to whether
Plaintiffs had standing to bring claims based on the Village’s alleged redevelopment plan:
[G]enuine issues of fact do exist as to the role the Village played in Fairfield’s
renovation of the Building, whether via a formal redevelopment plan such as the
SARP or a more informal course of action taken to achieve the Village’s desired
redevelopment result.
Rivera, 784 F. Supp. 2d at 139. Even though the Village insisted that Plaintiffs lacked such
standing, in that it never enacted the SARP through its “legislative body,” there was, at the very
least, an issue of whether it reached the same result intended by the SARP through some
“informal” process. Id. at 139-41. The SARP would be significant in proving Plaintiffs’
standing, whether it was enacted formally or informally. The Village cannot use its motion in
limine now to undo this finding, by again arguing that Plaintiffs “should be precluded from
referring to SARP” which was “nothing more than a concept or idea” (Vill. Br., at 14). 4
Judge Hurley also found an issue of fact for trial with respect to the discriminatory intent
that the Village purportedly possessed when implementing its alleged redevelopment plan.
Rivera, 784 F. Supp. 2d at 147, 153. This finding was premised on, among other things, the fact
that pre-existing issues with the presence of day laborers in the Village, and the Village’s
increasing efforts to employ traffic enforcement policies to resolve these issues, supported a
context in which such intent likely informed the adoption of the alleged redevelopment plan. Id.
Feb. 5. 2009) (agreeing that the defendant was “merely attempting to reargue the meaning of
evidence in its motion in limine,” even though it already “had an opportunity to argue that these
plaintiffs lacked evidence to support their claims in its motion for summary judgment”).
4

Nor is there any reason to require Plaintiffs to refer only to the SARP as a “concept or
idea,” and not as a plan “enacted or implemented” (Vill. Br., at 15; see Dkt. No. 217 (“Vill.
Reply”), at 4-5). Presumably, Plaintiffs will try to prove that the Village “enacted or
implemented” the SARP either formally or informally, and the Village will seek to disprove this
fact. As Judge Hurley found, it is for the jury to decide whether the SARP was simply a
“concept or idea.” The instructions to the jury will further clarify that nothing that Plaintiffs say,
such as any statement that the SARP was “enacted or implemented,” constitutes evidence.

4

at 147-49; see also Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 267
(1977) (Powell, J.) (holding that, in inferring the intent regarding a racially-discriminatory
housing decision, the “historical background of the decision” is relevant).

Although these

activities centered on “day laborers congregating near the Building,” and Plaintiffs “are not day
laborers themselves,” Judge Hurley ruled that, because the Village’s day laborers were
predominantly Hispanic and treated as synonymous with its Hispanic population, a “reasonable
juror could find” that these activities reflected an “anti-Hispanic element.” Rivera, 784 F. Supp.
2d at 149-50. The present motion by the Village simply rehashes its earlier argument that the
Village’s activities pertained solely to day laborers, and not its Hispanic residents or the
availability of housing in the Village (Vill. Br., at 8-9, 18-20). This argument ignores Judge
Hurley’s prior finding that, even though these activities otherwise involved day laborers, they
could still support an inference of discriminatory intent, viewed in the overall context.
Finally, Judge Hurley’s finding of a triable issue with respect to intent was reinforced
further by the fact that the Village allegedly failed to require Fairfield to bring the Building into
conformity with the building code, even though the renovation exceeded 50% of the Building’s
value.

As Judge Hurley explained, this failure constituted one of the Village’s disputed

“[d]epartures from [n]ormal [p]rocedure” from which its discriminatory intent is possibly
inferred. Rivera, 784 F. Supp. 2d at 150-52; see also Vill. of Arlington Heights, 429 U.S. at 267
(“Departures from the normal procedural sequence also might afford evidence that improper
purposes are playing a role.”). The Village voices its dissatisfaction with this finding by trying
to block the very evidence, i.e., evidence of the “extent of mortgages taken out by Fairfield” to
purchase and renovate the Building (Vill. Br., at 21), which would permit Plaintiffs to prove that
the Village failed to follow “[n]ormal [p]rocedure.” As Plaintiffs argue, such evidence will show

5

that Fairfield procured (i) a mortgage greater than the Building’s purchase price, purportedly to
cover “extensive renovation costs,” and (ii) a specific loan for renovating the Building; and that,
given the amount of financing for the renovation, Fairfield’s conformity with the building code
should have been required. (Dkt. No. 211 (“Pls. Opp.”), at 20-21.)
Accordingly, this Court denies the Village’s motion to categorically exclude the evidence
identified above, since it directly conflicts with Judge Hurley’s prior findings that such evidence
is relevant to resolving disputed issues of material fact in Plaintiffs’ case against the Village.
C. Evidence Regarding the Bartone Project
The Village contends that another category of evidence regarding the redevelopment of a
separate property at 120 Secatogue Avenue, also called the “Bartone Project,” 5 similarly raises
dual admissibility concerns. (Vill. Br., at 30-31; see Vill. Reply, at 10.) Allegedly, the Bartone
Project is privately-funded, but has been approved by the Village, and proposes to replace a nonresidential warehouse with a “mixed-use development (commercial space on the ground level
and residences above).” (Vill. Br., at 30.)
The Village’s dispute over the admissibility of the Bartone Project evidence is no
different than its dispute over the admissibility of evidence about the SARP’s existence. This
Court already considered, and rejected, the contention that the existence of the SARP is
irrelevant, since the Village did not formally enact it. See supra discussion at Section I.B. There
is no reason now to exclude other evidence relevant to a finding that the SARP was enacted.
Plaintiffs argue that the Bartone Project evidence will show that, in fact, the SARP was
enacted, be it formally or informally. (Pls. Opp., at 32-34.) The project, unlike the renovation of
5

(See JPTO Pls. Exs. 537-56.) “JPTO Pls. Ex.” denotes Plaintiffs’ exhibits listed in the
joint pre-trial order (Dkt. No. 190) and submitted with the Village’s omnibus motion as “Exhibit
L.”

6

the Building, (i) does not propose to deplete affordable housing options, in that “there are no and
have never been residential structures” at 120 Secatogue Avenue; and (ii) seeks to allocate 10%
of the new residences as “workforce/affordable housing.” (Vill. Br., at 30-31; see Vill. Reply, at
10.)

However, the project purportedly “perpetuates the depletion of available affordable

housing,” and therefore is possibly related to the same alleged redevelopment plan as the
renovation of the Building. (Pls. Opp., at 34-35 (emphasis added).)
Accordingly, this Court denies the Village’s motion to exclude evidence regarding the
Bartone Project. The possible relationship between the project and the Building’s renovation is
relevant—and, by no means, confusing, misleading, or prejudicial—in proving that the Village
carried out its alleged redevelopment plan against Hispanic residents, including Plaintiffs.
D. Newspaper Articles & Internet Postings
1. Hearsay
The Village argues for the exclusion of newspaper articles and internet postings, by
reciting a general rule that these materials, as hearsay, are “not covered by any exception.” (Vill.
Br., at 2-5 (quotations omitted); see Vill. Reply, at 1-2.)
The Village’s preoccupation with this rule truly misses the proverbial forest for the trees:
before deciding that the hearsay exceptions do not apply, the first question is whether these
materials even constitute hearsay. See Munafo v. Metro. Transp. Auth., Nos. 98-CV-4572, 00CV-134, 2003 WL 21799913, at *16 (E.D.N.Y. Jan. 22, 2003) (Korman, C.J.) (“While
defendants are correct that as a general matter, newspaper articles are inadmissible to prove the
truth of their contents, . . . they may be used for other relevant non-hearsay purposes.”) (citation
omitted). If these materials (i) are not being introduced for a hearsay purpose, i.e., “to prove the
truth of the matter[s] asserted,” Fed. R. Evid. 801(c) (defining “hearsay”), or (ii) are otherwise
excluded from the definition for hearsay, id. at 801(d) (defining “[s]tatements [t]hat [a]re [n]ot
7

[h]earsay”); then they are not hearsay, and no such exception is needed. See U.S. v. Kone, 216
F. App’x 74, 76 (2d Cir. 2007) (“[The defendant’s] statements . . . were not within the definition
of hearsay, . . . and hence were not excludable as hearsay regardless of whether they would
fall . . . under an exception to the hearsay rule.”) (citation omitted); Smith v. Duncan, 411 F.3d
340, 346 n.4 (2d Cir. 2005) (noting that “[o]ffering evidence under [a hearsay exception] is
different than offering it for a non-hearsay purpose,” and that such an exception is only “invoked
when the statement is offered for the truth of the matter asserted”).
For the most part, the articles and postings that Plaintiffs propose to put forth at trial may
serve relevant non-hearsay purposes; in which case, the application of the hearsay rule, and its
exceptions, is inapposite. As Plaintiffs point out, many of these materials 6 will show that,
historically, Hispanic day laborers, gangs, and immigrants, and their purported effect on the
Village, were subjects of concern and hostility in the community. (Pls. Opp., at 4.) What
matters is not that the concern and hostility, as reflected in these materials, were real or accurate,
but that their mere expression could have set the tone and thus shaped the Village’s
discriminatory purpose behind its alleged redevelopment plan.

See Munafo, 2003 WL

21799913, at *16-17 (holding that an article reflecting the plaintiff’s “public criticisms” were
admissible for the non-hearsay purpose of showing the defendants’ “motive for retaliating
against him”); Roniger v. McCall, 119 F. Supp. 2d 407, 410 (S.D.N.Y. 2000) (holding that
articles about a prior incident were not hearsay, if offered to prove the defendant’s “state of
mind” when firing the plaintiff for another incident, which also revealed a “compromised
political independence” between the defendant and the mayor); Jackson v. Jimino, 506 F. Supp.
2d 105, 113-14 (N.D.N.Y. 2007) (denying reconsideration of a summary judgment decision
6

(See JPTO Pls. Exs. 192-94, 208-12, 368, and 438-40.)

8

based on its reference to “negative publicity” in several articles, because “most importantly”
these articles “reflect the state of mind of [the defendant], who decided not to re-appoint [the
plaintiff]”); accord Yarborough v. City of Warren, 383 F. Supp. 676, 682 (E.D. Mich. 1974)
(noting that a “series of newspaper articles” were “ostensibly concerned with the issue of
motivation,” but that, where the housing discrimination claims were based on disparate impact,
motivation was not a “subject for inquiry”; and holding that these articles were still admissible
“as evidence of the ‘historical context’” in which the purported discrimination occurred).
Indeed, Judge Hurley himself relied on these materials to show that comments contained
therein suggested a “climate of extreme public anti-Hispanic sentiment,” from which a jury could
infer that the Village deliberately devised its alleged redevelopment plan for the same
discriminatory reasons. Rivera, 784 F. Supp. 2d at 147-48; see also Vill. of Arlington Heights,
429 U.S. at 267 (“historical background”). Judge Hurley’s reliance on these materials at the
summary judgment stage rebuts any argument that they are only inadmissible hearsay. See, e.g.,
Nora Beverages, Inc. v. Perrier Grp. of Am., Inc., 164 F.3d 736, 746 (2d Cir. 1998) (“On a
summary judgment motion, the district court properly considers only evidence that would be
admissible at trial.”). This Court agrees with Judge Hurley that, at trial, these materials should
be admissible not to prove the truth of their contents, but to contextualize the Village’s intent in
creating this alleged plan.
Plaintiffs similarly state that several other of the proposed articles 7 are admissible only to
show that the Village had “notice” of the “heated public controversy” surrounding the proposal
to renovate the Building and its potential impact on the Village’s Hispanic residents, and not to
show the truth of the matters that these articles assert. (Pls. Opp., at 4.) While it would be
7

(See JPTO Pls. Exs. 177, 182-83, 294, 335, 349, 351, 513, and 516.)

9

inappropriate to admit these articles to show that there actually was such a controversy, they are
admissible for the more limited purpose of showing that the Village itself knew or believed there
was a controversy, yet still allowed the renovation to proceed according to its alleged
redevelopment plan. 8 See Munafo, 2003 WL 21799913, at *17 (holding that the same article
was also admissible for the non-hearsay purpose of showing “defendants’ knowledge of the
substance of [the plaintiff’s] public criticisms”). Put simply, such a controversy, and the
Village’s awareness of it, could potentially support another inference about its intent to pursue
this allegedly discriminatory plan. See Vill. of Arlington Heights, 429 U.S. at 267 (holding that
the “specific sequence of events leading up [to] the challenged decision” is also relevant).
As for the remainder of the proposed articles, Plaintiffs acknowledge that they are being
“offered for the truth of the matter asserted,” i.e., a hearsay purpose, but only for specific
statements therein that are otherwise excluded from the definition for hearsay. (Pls. Opp., at 5.)
According to Plaintiffs, these statements are ones that then-mayor, George Graf, made, as the
Village’s “agent or employee on a matter within the scope of that relationship and while it
existed,” which, when “offered against [the Village],” do not amount to inadmissible hearsay.
Fed. R. Evid. 801(d)(2)(D); (Pls. Opp., at 5). There is no doubt that articles authored by Graf,
during his tenure as mayor, 9 are admissible in their entirety as statements of a party-opponent.
See Seashock v. Harris Corp., No. 88-CV-2067, 1989 WL 36403, at *1-2 (E.D. Pa. April 11,
8

If necessary, a limiting instruction could be given at trial to minimize any prejudice or
confusion. See, e.g., Highland Capital Mgmt., L.P. v. Schneider, No. 02-CV-8098, 2008 WL
3884363, at *11 (S.D.N.Y. Aug. 20, 2008) (Leisure, J.) (holding that a “limiting instruction to
the jury regarding evidence admitted under the state of mind exception to the hearsay rule”
would have “cured any potential unfair prejudice that defendants might have suffered”), rev’d on
other grounds, 607 F.3d 322 (2d Cir. 2010); cf. U.S. v. Downing, 297 F.3d 52, 59 (2d Cir. 2002)
(“Absent evidence to the contrary, we must presume that juries understand and abide by a district
court’s limiting instructions.”).
9

(See JPTO Pls. Exs. 180, 346, and 348.)

10

1989) (admitting a “1957 article” under Fed. R. Evid. 801(d)(2)(D), as the author was a
“manager of [the defendant company], at the time he authored the article”).
Articles that contain quotations from Graf, but are authored by someone else, 10 present a
more complex question of admissibility.

Graf’s quotations, like the articles he personally

authored, are statements of a party-opponent that fall outside the definition for hearsay; however,
their “repetition in the newspapers” raises a separate hearsay issue, in that it reflects the “implicit
statement” of other out-of-court declarants, i.e., the reporters, that Graf actually said those
things. Larez v. City of L.A., 946 F.2d 630, 642 (9th Cir. 1991). For one of these articles (JPTO
Pls. Ex. 181), the double-hearsay problem is resolved by the fact that Graf also “adopted” the
quotation, as repeated in the article, during his deposition (Pls. Opp., Ex. 2, at 151:18-24
(adopting quotation in JPTO Pls. Ex. 181)). Fed. R. Evid. 801(d)(2)(B) & 805; see Tracinda
Corp. v. Daimlerchrysler AG, 362 F. Supp. 2d 487, 495 (D. Del. 2005) (admitting “statements
[the defendant] made . . . that were printed in The Financial Times article” as “admissions of a
party opponent,” and not hearsay, because he “adopted” the printed statements during his
deposition); Boyd v. City of Oakland, 458 F. Supp. 2d 1015, 1050 (N.D. Cal. 2006) (Larson,
Mag. J.) (holding that the police chief’s statements, as quoted in an article, were “admissible as
evidence,” since the police chief, during his deposition, “replied that he did” make the
statements); cf. Mandal v. City of N.Y., Nos. 02-CV-1234, 02-CV-1367, 02-CV-6537, 2006 WL
3405005, at *2 (S.D.N.Y. Nov. 26, 2006) (admitting the “portions of the [reporter’s] Articles and
Notes that contain direct quotations or attribute specific statements to individual Defendants or
their agents,” where nobody “directly denie[d] having made any of the statements attributed to

10

(See JPTO Pls. Exs. 179, 181, and 447.)

11

them”). Plaintiffs, however, have failed to prove that Graf similarly “adopted,” during his
deposition, the quotations that appear in the other articles (JPTO Pls. Exs. 179 and 447).
Accordingly, this Court denies the Village’s motion to exclude proposed articles and
postings as hearsay, except with respect to the two articles identified as JPTO Pls. Exs. 179 and
447. If, at trial, Plaintiffs offer certain of these materials for purposes other than the ones that
this Court has already considered as relevant non-hearsay, or are able to prove that Graf adopted
the quotations attributed to him in JPTO Pls. Exs. 179 and 447, this Court may revisit the
admissibility of these articles.
2. Authentication
The Village argues that, even assuming the internet postings are admissible for the
relevant non-hearsay purpose of establishing the context that possibly precipitated the creation of
its alleged redevelopment plan, they should be excluded for lack of authentication. (Vill. Br., at
7-8; see Vill. Reply, at 2.)
The “bar for authentication” of the internet postings is “not particularly high,” i.e., a
“reasonable likelihood” standard.

U.S. v. Gagliardi, 506 F.3d 140, 151 (2d Cir. 2007)

(quotations omitted). “The testimony of a witness with knowledge that a matter is what it is
claimed to be is sufficient to satisfy this standard.” Id. (citing Fed. R. Evid. 901(b)(1)). As long
as such testimony is sufficient, these postings should be admitted, “notwithstanding that [they]
were editable.” Id. (admitting the defendant’s “e-mails and transcripts of instant-message chats,”
despite his claim that these messages were “not originals and could have been subject to editing,”
as third-party testimony indicated that these messages “were in fact accurate records”).
Plaintiffs represent that Janet Liotta, described as an “advocate[] on behalf of the
Village’s Latino community,” will testify that these posting are authentic, because she personally
“downloaded all of the postings and confirmed the identities of the key posters.” (Pls. Opp., at
12

8-9, 29.)

Liotta’s testimony could suffice to authenticate these postings, by showing a

“reasonable likelihood” that they were actually posted on the internet by members of an online
community comprised of the Village’s own residents. 11 Gagliardi, 506 F.3d at 151 (quotations
omitted).
Accordingly, this Court denies the Village’s motion to exclude the internet postings that
Plaintiffs intend to offer at trial on the basis of authentication. If Plaintiffs are unable to
authenticate these postings at trial, the Village may renew its objection.
3. Relevance
Apart from the challenges already raised and discussed supra at Section I.B, the Village
also challenges, as irrelevant, three specific newspaper articles (JPTO Pls. Exs. 208-209 and
351), which deal with “occurrences that did not take place in the Village.” (Vill. Br., at 6.)
Although one article (JPTO Pls. Ex. 351) reflects a larger controversy over how other
parts of Long Island were treating Latinos, it also references a controversy in the Village over an
incident of “Latinos [being] forced to flee their home,” as a result of attacks against them for
their participation in a “candlelight vigil for the Virgin of Guadalupe.” (JPTO Pls. Ex. 351.)
The article is relevant for this reference, because it tends to prove that the Village was aware
that, by continuing to encourage the Building’s renovation at the expense of its Hispanic
residents, it would engender similar controversy. See supra discussion at Section I.D.1.
With respect to the two other articles (JPTO Pls. Exs. 208-209), Plaintiffs argue that the
articles are relevant, because they raise concern over “Latino gang-related violence in towns
adjoining the Village.” (Pls. Opp., at 7.) Plaintiffs’ argument is unpersuasive. Absent evidence

11

Liotta’s testimony could also suffice to authenticate the “leaflet” (JPTO Pls. Ex. 446), to
which the Village objects (Vill. Br., at 8), in that “she helped create the leaflet.” (Pls. Opp., at 8.)

13

that the Village was concerned about these activities in the adjacent towns, their probative value
is minimal, while the potential prejudice and confusion that would result from their admission is
significant.
Accordingly, this Court denies the Village’s motion to exclude the article identified as
JPTO Pls. Ex. 351, but grants the motion as to the two articles identified as JPTO Pls. Exs. 208209. If Plaintiffs proffer the former for a purpose for which it is not relevant, or demonstrate that
the latter are relevant for some purpose, this Court may revisit these determinations.
E. Photographs
1. Photographs of the Building’s Conditions
The Village attempts to preclude Plaintiffs from introducing photographs of the
conditions in and around the Building, 12 both pre- and post-renovation. 13 (Vill. Br., at 11; see
Vill. Reply, at 2-3.) According to the Village, these photographs are irrelevant, in that it neither
owned the Building nor was it obligated to maintain the Building, and, to that end, they might be
confusing, misleading, and prejudicial. (Vill. Br., at 11-13; see Vill. Reply, at 2-3.)
This argument, however, again seeks to erase Judge Hurley’s prior findings. (Pls. Opp.,
at 11); see supra discussion at Section I.B (collecting cases). Judge Hurley found that whether
the Village departed from normal procedure, by dismissing code violation summonses for the
12

(See JPTO Pls. Exs. 42, 77, 80, 82-95, 97-101, 103-17, 119-20, 147-52, 172-74, 176-78,
184, 215-17, 424-34, 452, 465-68, 519-20, and 524-25.)
13

At present, this Court is unable to assess where and when the countless photographs were
actually taken, i.e., their authenticity, and refrains from conducting this assessment until
Plaintiffs attempt to introduce them at trial. See Wechsler v. Hunt Health Sys., Ltd., No. 94-CV8294, 2003 WL 21998985, at *2 (S.D.N.Y. Aug. 22, 2003) (Leisure, J.) (“[T]he Court will
reserve judgment on [the authentication matter] until plaintiff seeks to offer these documents into
evidence.”); see also Wright v. Mariner Health Care, Inc., No. 06-CV-169, 2008 WL 2704034,
at *2-3 (S.D. Miss. July 3, 2008) (agreeing that “the defendants’ objections to the authenticity of
the photographs are premature and should be reserved until the plaintiff has had an opportunity
to offer foundational and authenticating testimony at trial”).

14

Building without inspecting to see if the violations persisted, is a triable issue of fact material to
the issue of the Village’s allegedly discriminatory intent. Rivera, 784 F. Supp. 2d at 151. Here,
the Village repackages its objections to these findings into an attack on the admissibility of
photographs which, based on their purported timing, are arguably relevant to prove the alleged
departure from normal procedure. 14 These photographs possibly show pre-renovation building
code violations between October 2004 and September 2005, when the summonses were in place;
and the persistence of these violations, in part, after the dismissal of the summonses in
September 2005.
Accordingly, this Court denies the Village’s motion to exclude the photographs of the
Building’s conditions on relevance grounds.

Plaintiffs, of course, will have to properly

authenticate each of these photographs before they are admitted at trial.
2. Other Photographs
The Village also attempts to preclude Plaintiffs from introducing photographs of
“Community Activity” 15 and photographs of “parking restrictions.” 16 (Vill. Br., at 13.) The
former refers to images in which its Hispanic residents, including Plaintiffs, are “eating and
socializing.”

(Id.)

The latter refers to images reflecting the restrictions “in front of 150

Secatogue Avenue,” pursuant to its traffic enforcement policies. (id.; see Pls. Opp., at 14.) The
Village argues that all of these photographs are irrelevant. (Vill. Br., at 13.)

14

The above fact, which Judge Hurley found relevant in raising a factual issue for trial, has
nothing to do with ownership or an obligation to maintain the Building. Thus, the Village’s
argument about the inadmissibility of these photographs, based on such considerations, clearly
contradicts Judge Hurley’s finding or, at the very least, ignores it.
15

(See JPTO Pls. Exs. 441-45 and 448-50.)

16

(See JPTO Pls. Exs. 522 and 526-34.)

15

i. Photographs of “Parking Restrictions”
The Village presumably objects to the “parking restrictions” photographs for the same
reasons it objects to any evidence relating to the Village’s traffic enforcement policies. As
discussed supra at Section I.B, the Village’s objections to this category of evidence as a whole is
an improper challenge to Judge Hurley’s prior findings, particularly his finding that the
employment of traffic enforcement policies against day laborers is relevant to the Village’s intent
with respect to its alleged redevelopment plan. As previously discussed, the Village cannot
negate Judge Hurley’s finding now by seeking, via a motion in limine, to bar the very evidence
that pertains to these traffic enforcement policies, such as the photographs reflecting parking
restrictions in front of 150 Secatogue Avenue. See supra discussion at Section I.B. As Plaintiffs
explain, these photographs will “aid[]” testimony about the fact that traffic enforcement policies
“targeted” day laborers. (Pls. Opp., at 14.)
ii. Photographs of “Community Activity”
The Village also takes issue with the “Community Activity” photographs, claiming that
such activity is irrelevant, even to establish non-economic, actual damages. (Vill. Reply, at 4;
see Vill. Br., at 13.)
The Fair Housing Act provides that, “if the court finds that a discriminatory housing
practice has occurred or is about to occur, the court may award to the plaintiff actual and
punitive damages.” 42 U.S.C. § 3613(c)(1) (emphasis added). A “damages action” brought
under this statute “sounds basically in tort.” Curtis v. Loether, 415 U.S. 189, 195 (1974)
(Marshall, J.). As such, actual (or compensatory) damages may consist of not only “out-ofpocket loss and other monetary harms,” but also non-monetary harms “determined according to
principles derived from the common law of torts.” Memphis Cmty. Sch. Dist. v. Stachura, 477
U.S. 299, 306-307 (1986) (Powell, J.) (considering compensatory damages, since a Section 1983
16

claim is also a “species of tort liability”) (quotations omitted); see Robert G. Schwemm,
Compensatory Damages in Federal Fair Housing Cases, 16 Harv. C.R.-C.L. L. Rev. 83, 90
(1981) (“[W]hatever the statutory basis, a housing discrimination claim sounds in tort
and . . . compensation principles applicable to tort law generally and to dignitary torts in
particular should govern damage awards in fair housing cases.”); cf. U.S. v. Vulcan Soc’y, Inc.,
897 F. Supp. 2d 30, 35 (E.D.N.Y. 2012) (Garaufis, J.) (holding that “specific categories [of
compensatory damages] that have been recognized and defined in the common law of tort” are
also available for Title VII, Section 1981, and Section 1983 discrimination claims).
Non-monetary harms, “compensable in the common law of tort,” include (i) “emotional
distress” and (ii) the “loss of enjoyment of life.” Vulcan Soc’y, Inc., 897 F. Supp. 2d at 42-43;
accord U.S. v. Hylton, 944 F. Supp. 2d 176, 195-97 (D. Conn. 2013) (Hall, J.) (holding, in a Fair
Housing Act case, that the plaintiffs were also entitled to compensatory damages for “emotional
distress,” defined as “severe mental trauma associated with unlawful discrimination,” and for
“fewer life chances,” such as a lower “quality of life”) (quotations omitted); Schwemm, supra, at
90 (stating that “economic loss,” “emotional distress,” and “loss of rights” are all “judicially
recognized as an appropriate basis for an award of compensatory damages to a victim of housing
discrimination”).
Actual damages for “emotional distress” do not require proof that a plaintiff either
displayed “physical symptoms” of the distress or “sought medical treatment” for it. Patrolmen’s
Benevolent Ass’n of N.Y. v. City of N.Y., 310 F.3d 43, 55-56 (2d Cir. 2002) (Section 1983
claims); see also Hylton, 944 F. Supp. 2d at 196 (awarding “garden variety” damages for
emotional distress, “meaning the claim for distress is devoid of evidence of medical treatment or
physical manifestation”). On the other hand:

17

A plaintiff’s subjective testimony, standing alone, is generally insufficient to sustain
an award of emotional distress damages. . . . Rather, the plaintiff’s testimony of
emotional injury must be substantiated by other evidence that such an injury
occurred, such as the testimony of witnesses to the plaintiff’s distress, . . . , or the
objective circumstances of the violation itself.
Patrolmen’s Benevolent Ass’n of N.Y., 310 F.3d at 55 (citations omitted).
Regarding actual damages for the “loss of enjoyment of life”:
The concept of loss of enjoyment of life . . . provides compensation for the
deprivation or impairment of the senses or of one’s ability to engage in those
activities and perform those functions which were part of the victim’s life prior to the
injury. . . .
Proof of loss of the normal pursuits and pleasures of life . . . does not depend on
evidence of the injury or the accompanying physical sensations and emotional
response. Rather, a ‘before and after’ method of proof is used which requires
evidence of (1) the nature and extent of plaintiff’s lifestyle prior to being injured, and
(2) the limited lifestyle of the plaintiff afterwards.
Rufino v. U.S., 829 F.2d 354, 359 n.8 (2d Cir. 1987) (emphasis in original; quotations omitted)
(Federal Tort Claims Act claim); see also Vulcan Soc’y, Inc., 897 F. Supp. 2d at 44-45, 47 (citing
Rufino with approval, and holding that there is “no compelling reason to distinguish between the
discrimination and personal injury contexts for the purposes of defining loss of enjoyment of
life”).
Considering the above principles, the “Community Activity” photographs appear relevant
in establishing non-economic, actual damages, namely, Plaintiffs’ emotional distress and their
loss of enjoyment of life. Plaintiffs focus on the fact that these photographs help to prove that
they suffered emotional distress damages from the “loss of this community” among Hispanic
residents in the Village, as a result of the alleged housing discrimination. (Pls. Opp., at 13.) The
Village’s response is that the absence of “medical support” and “any other evidence of emotional
distress” renders these photographs irrelevant. (Vill. Reply, at 4.) On the contrary, medical
treatment and physical manifestation evidence are not essential in establishing emotional distress

18

damages.

Plaintiffs’ own testimony—paired with these photographs, other substantiating

testimony, and additional information about the “objective circumstances” involving the alleged
housing discrimination—could be enough to establish their emotional distress damages.
Patrolmen’s Benevolent Ass’n of N.Y., 310 F.3d at 55.
Even if these photographs are not relevant to the issue of emotional distress damages,
they nonetheless are relevant to the issue of damages for the loss of enjoyment of life. Plaintiffs
do not raise this issue, but this Court believes that it is a possible basis for finding damages in
this case. These photographs may satisfy the first step of the “‘before and after’ method,”
applicable to prove damages for the loss of enjoyment of life.

Rufino, 829 F.2d at 359 n.8

(quotations omitted). By showing that Plaintiffs were once able to interact with a community of
other Hispanic residents, these photographs could be important to show that the alleged housing
discrimination deprived them of, or impaired, this ability.
Accordingly, this Court denies the Village’s motion to exclude the “Community
Activity” and “parking restrictions” photographs.
F. “Vision Long Island” Records
It appears to be undisputed that the Village hired an organization, Vision Long Island, to
recommend ways to redevelop various areas within the Village. (See Pls. Opp., at 22; Vill.
Reply, at 6.) The Village’s central challenge to the admission of the Vision Long Island records
relating to the “visioning process,” i.e., meeting minutes, reports, and presentations, 17 is that this
evidence constitutes hearsay. 18 (Vill. Br., at 22-23; see Vill. Reply, at 6-7.)

17

(See JPTO Pls. Exs. 5, 58, 218, 293, 342-43, 363, and 397.)

18

Because this Court concludes infra that these records are admissible for a relevant nonhearsay purpose, it need not also address the Village’s related arguments that these records are
19

On examination, these records seem to evidence that, throughout this process, Vision
Long Island recommended, among other things, that the Village’s redevelopment should
preserve affordable housing options, such as the Building, and refrain from displacing residents.
(See, e.g., JPTO Pls. Exs. 5 (“Identify strategies to preserve existing affordable and low income
housing stock.”), 58 (“VISION has long established the position that people should not be
displaced. . . . [T]he [Secatogue apartments] shouldn’t be torn down until an adequate alternative
has been put in place for the residents.”), and 342 (“Vision plans to tie the Farmingdale train
station area redevelopment in with the Village visioning.”).)
Plaintiffs propound two purportedly relevant purposes for which they intend to offer
these records at trial. (Pls. Opp., at 22-23.) First, Plaintiffs seek to introduce these records “to
show [the] availability of less discriminatory means of improving the conditions of the building.”
(Pls. Opp., at 22.) Such a showing is relevant to Plaintiffs’ claim that the Village’s alleged
redevelopment plan had a discriminatory impact upon its Hispanic residents. See Huntington
Branch, NAACP v. Town of Huntington, 844 F.2d 926, 939 (2d Cir. 1988) (“Once a plaintiff has
made a prima facie showing of discriminatory effect, a defendant must present bona fide and
legitimate justifications for its action with no less discriminatory alternatives available.”)
(emphasis added); see also Rivera, 784 F. Supp. 2d at 145 (citing Huntington with approval).
However, when offered for this purpose, the Vision Long Island records, standing alone,
constitute hearsay. Plaintiffs are seeking to introduce the records not simply to show that
recommendations about “less discriminatory alternatives” were made, but that these proposed
“alternatives” were actually available. In other words, the truth of the recommendations, and not

irrelevant and amount to lay opinion testimony offered for their truth. (Vill. Br., at 22-23; Vill.
Reply, at 6-7.)

20

merely their expression, matters. Thus, unless the viability of the recommendations in the Vision
Long Island records is established through other direct evidence, the recommendations are not
admissible to show that “less discriminatory alternatives” existed.
The second purpose for which Plaintiffs seek to admit the records is to show that the
Village received the recommendations, but “blatantly rejected” Vision Long Island’s proposal to
include the Building in the visioning process. (Pls. Opp., at 23.) Such a showing is relevant to
Plaintiffs’ claim that the Village acted out of “discriminatory motives.” (Id.) As with the “public
controversy” surrounding the renovation of the Building (see supra discussion at Section I.D.1),
what is relevant is that the Village was aware of Vision Long Island’s recommendations about
“less discriminatory alternatives,” but proceeded to apply the alleged redevelopment plan to the
Building anyway. See Vill. of Arlington Heights, 429 U.S. at 267 (noting that the adoption of a
new restriction on the use of the property to single-family homes, after the town found out about
the “integrated housing” plans, would have been relevant to the “specific sequence of events
leading up” to the town’s decision to reject the plans). The mere fact that the recommendations
were made, i.e., their expression and not their truth, would be enough to reinforce an inference
that the Village acted with discriminatory intent. 19 The Vision Long Island records are therefore
admissible for the relevant non-hearsay purpose of establishing the Village’s awareness of the
recommendations contained therein, as part of the “sequence of events” culminating in the
Building’s renovation. However, if this is the only purpose for which they are admitted, this

19

This Court rejects Plaintiffs’ argument that “[s]tatements made by Village officials,” as
repeated in these records, are “opposing party statement[s]” beyond the definition for hearsay
(Pls. Opp., at 25). The argument overlooks the double-hearsay problem, similar to the one
addressed supra at Section I.D.1. Plaintiffs have not demonstrated how such statements
overcome this problem.

21

Court will consider issuing a limiting instruction to prevent the jury from considering them for
any other purpose.
The Village also objects to several other records (JPTO Pls. Exs. 269 and 271-73), which
appear to be communications between Vision Long Island and Plaintiffs’ counsel concerning the
production of documents during discovery, on the basis of hearsay. (Vill. Br., at 22.) These
records, as hearsay or non-hearsay, do not seem to be relevant to any purpose for which Plaintiffs
purport to offer them. This Court therefore excludes these records, until Plaintiffs can explain
why they are relevant.
Accordingly, this Court denies the Village’s motion to exclude these records as hearsay,
except that it grants the motion with respect to the records identified as JPTO Pls. Exs. 269 and
271-73, the relevance of which is unclear. If Plaintiffs offer these records for some purpose
other than the relevant non-hearsay purpose of showing that Vision Long Island’s
recommendations were part of a “sequence of events,” this Court may revisit the hearsay issue.
G. Lay Testimony
1. Spouses & Children
The Village opposes, as irrelevant, testimony by Plaintiffs’ spouses and children
regarding (i) any “condition” that relates to the alleged housing discrimination and
(ii) “damages” that Plaintiffs suffered based on such discrimination. (Vill. Br., at 24-25; see Vill.
Reply, at 7-8.) According to the Village, only the “personal knowledge” of Plaintiffs, and not
their spouses and children, is relevant in proving the above facts. (Vill. Br., at 24-25.)
The non-party status of Plaintiffs’ spouses and children, however, does not render their
testimony irrelevant. First, these individuals may still be able to provide relevant, firsthand
testimony to prove the existence of the conditions upon which Plaintiffs’ housing discrimination
claims are based. (Pls. Opp., at 26-27); cf. Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268,
22

277 (2d Cir. 2009) (Jacobs, C.J.) (holding that the testimony of the plaintiffs’ “other family
members” was also relevant in creating a triable issue with respect to their disability-based
discrimination claim). For instance, these individuals could testify that they too noticed firsthand
the Village’s heightened employment of traffic enforcement policies near the Building, or that
they saw some of the controversy behind the Building’s renovation. As discussed supra at
Sections I.B and I.D.1, such testimony regarding these conditions could reinforce an inference of
the Village’s discriminatory reasons for pursuing its alleged redevelopment plan.
Second, testimony by Plaintiffs’ spouses and children, based on their personal
knowledge, may provide the “other evidence” necessary to “substantiate[]” Plaintiffs’ testimony
concerning their own emotional distress damages. Patrolmen’s Benevolent Assn of N.Y., 310
F.3d at 55. Despite what the Village argues, such testimony would not be used to “speculate on
‘damages’ suffered by persons not parties to the action,” i.e., other members of Plaintiffs’
households (Vill. Br., at 24), but rather to show that the alleged housing discrimination
“impacted the family and ultimately exacerbated a plaintiff’s distress.” (Pls. Opp., at 27.)
The Village also opposes, as hearsay, a spouse’s or child’s testimony regarding
“communications” between Plaintiffs, or other members of their households, and the Village.
(Vill. Br., at 25; see Vill. Reply, at 8.) Plaintiffs, however, propose that such testimony “will be
offered solely to establish that the communication occurred,” as opposed to the accuracy of what
was communicated. (Pls. Opp., at 28.) The Village seems to concede that Plaintiffs “can
certainly testify that a communication was made, without offering to prove the truth of the
subject matter of such a communication.” (Vill. Reply, at 8.)
Accordingly, this Court denies the Village’s motion to exclude the testimony of
Plaintiffs’ spouses and children as irrelevant or constituting hearsay.

23

2. Other Witnesses
i. Janet Liotta & Christina Ruiz-Diaz
The Village opposes the testimony of Janet Liotta and Christina Ruiz-Diaz, described by
Plaintiffs as “advocates on behalf of the Village’s Latino community” (Pls. Opp., at 29). (Vill.
Br., at 26-27.)
The Village contends in conclusory terms that Liotta’s and Ruiz-Diaz’s testimony is
irrelevant and constitutes hearsay and/or improper lay opinion testimony.

(Id.) Plaintiffs,

however, represent that Liotta and Ruiz-Diaz will testify about their respective advocacy roles
and observations regarding changes with respect to the area around the Building, “based solely
on their personal knowledge and experiences.”

(Pls. Opp., at 29.)

Nothing in Plaintiffs’

representations—and notably, the Village provides no real argument to suggest otherwise—
indicates that such testimony is irrelevant or amounts to hearsay. 20
Nor do these representations indicate that such testimony involves the rendering of lay
opinions, rather than the simple relaying of personal, factual observations relating to Plaintiffs’
housing discrimination claims. See Bazile v. N.Y.C. Hous. Auth., No. 00-CV-7215, 2002 WL
171690, at *11 n.21 (S.D.N.Y. Feb. 1, 2002) (Scheindlin, J.) (“While . . . [no] lay witness may
offer her opinion as to whether [the plaintiff] was treated differently on the basis of race, [they]
may certainly offer their observations based on personal knowledge.”). 21

20

Liotta’s testimony is also relevant for the purpose of authenticating evidence. See supra
discussion at Section I.D.2.
21

If Liotta or Ruiz-Diaz were to offer a lay opinion as to “why [P]laintiff[s] suffered” as a
result of actions taken by the Village, i.e., because they were Hispanic, the opinion would only
be permitted, if Liotta or Ruiz-Diaz was “involved,” and thus was able to observe, the Village’s
“decision-making processes.” Hester v. BIC Corp., 225 F.3d 178, 184 (2d Cir. 2000) (citing
Fed. R. Evid. 701). Otherwise, “subjective impressions” that the Village’s actions were
“attributable to [Plaintiffs’] race” would be improper and inadmissible. Id.

24

Furthermore, the fact that Judge Hurley already considered statements from Liotta and
Ruiz-Diaz on summary judgment is a compelling reason to admit such testimony at trial. See
Rivera, 784 F. Supp. 2d at 148, 150; see also supra discussion at Section I.D.1.
Accordingly, this Court denies the Village’s motion to exclude Liotta’s and Ruiz-Diaz’s
testimony to the extent it is based on personal knowledge.
ii. Eric Alexander
The Village opposes the testimony of Eric Alexander, Vision Long Island’s executive
director, as irrelevant, because “there was no enactment or general acceptance of” the
recommendations by Vision Long Island. (Vill. Br., at 27.)
On the contrary, the Village’s very failure to accept these recommendations is a relevant
fact.

As with the Vision Long Island records, Alexander’s testimony possibly serves two

purposes: showing that (i) Vision Long Island developed, during the visioning process, “less
discriminatory alternatives” to renovating, and requiring Latino residents to leave, the Building;
and (ii) the Village was aware of, but rejected, these alternatives in permitting the renovation to
proceed according to its alleged redevelopment plan.

(See Pls. Opp., at 24 (stating that

Alexander will testify about “how the Village specifically instructed him to exclude [the
Building] from the visioning,” despite Vision Long Island’s “strong stance that the building
should not have been torn down until adequate alternatives were put in place”).) Either purpose
is relevant to proving important aspects of Plaintiffs’ housing discrimination claims, i.e.,
discriminatory impact and intent. See supra discussion at Section I.F.
Accordingly, this Court denies the Village’s motion to exclude Alexander’s testimony.
iii. Joanne Krapp
The Village opposes Joanne Krapp’s impeachment testimony as irrelevant and
amounting to hearsay. (Vill. Br., at 27.) The testimony is intended to impeach Graf at trial,
25

should he deny making a prior statement about “allocating $45,000” to assist the Building’s
residents in relocating as a result of the renovation. (Pls. Opp., at 30; see Vill. Reply, at 9.)
Krapp’s impeachment testimony—that Graf actually made the prior statement—would
not amount to hearsay. The purpose of extrinsic evidence concerning Graf’s “prior inconsistent
statement[],” including such testimony, would not be to demonstrate the “truth” of the prior
statement, “but rather to demonstrate [his] lack of credibility” as a witness. U.S. v. Mergen, No.
12-CR-2873, 2013 WL 5857143, at *2 (2d Cir. Nov. 1, 2013); see also U.S. v. Ploof, 311 F.2d
544, 546 (2d Cir. 1963) (holding that the jury was appropriately instructed that the testimony of
two agents that “[the prosecution witness] made to them a statement contrary to his testimony”
was admissible to “impeach,” and not to challenge the “issue of [defendant’s] guilt”). In short,
such testimony possibly serves a non-hearsay purpose of showing that Graf did not testify
honestly, in that he denied the prior statement despite having made it.
Such testimony is also relevant to impeaching Graf’s credibility regarding an issue that is
not merely collateral, “i.e., as to those matters which are relevant to the issues in the case and
could be independently proven.” U.S. v. Blackwood, 456 F.2d 526, 531 (2d Cir. 1972) (“A
witness may be impeached by extrinsic proof of a prior inconsistent statement only as to matters
which are not collateral[.]”).

In this case, the non-collateral issue is “the Village’s direct

involvement” in the renovation of the Building. (Pls. Opp., at 30.) The Village disputes the
relevance of such testimony to this issue, by arguing that the Building’s residents were
“reimbursed for their displacement . . . by Fairfield” and not by the Village. (Vill. Br., at 27; see
Vill. Reply, at 9.) The argument ignores the fact that, even if the Village did not use the money
that it supposedly allocated to fund the relocation of the Building’s residents, the Village’s
allocation of the money may still evidence its involvement in the renovation. Should Graf deny

26

the prior statement, and thereby diminish proof of the Village’s involvement, Plaintiffs should be
permitted to introduce such testimony to impeach the credibility of Graf’s denial.
Accordingly, this Court denies the Village’s motion to exclude Krapp’s impeachment
testimony.
iv. Jean Paul Rodrigue
The Village opposes Jean Paul Rodrigue’s authentication testimony, as such testimony
only serves to authenticate a “demonstrative aid” (JPTO Pls. Ex. 96) that is irrelevant. (Vill.
Reply, at 8-9.) The “demonstrative aid” appears to evidence the Village’s employment of traffic
enforcement policies, premised on the parking tickets that it issued in various areas. (JPTO Pls.
Ex. 96.) The Village’s relevance objection to such testimony stems from its same objection to
the category of evidence regarding traffic enforcement policies, and is thus rejected. See supra
discussion at Section I.B.
Additionally, the Village opposes such testimony, arguing that it requires Rodrigue to
opine as an expert. (Vill. Br., at 28.) Rodrigue, however, need not provide expert testimony to
authenticate the “demonstrative aid,” which he prepared through a process of “transferr[ing]
voluminous quantities of Village data.” (Pls. Opp., at 29); see, e.g., U.S. v. Espinal-Almeida, 699
F.3d 588, 608, 610-13 (1st Cir. 2012) (holding that the “lay testimony” of an individual—who
prepared, with software, the analysis of GPS data “admitted into evidence”—was “sufficient to
authenticate the GPS data and software generated evidence”). The data, and the process by
which Rodrigue transferred that data, were “not so scientifically or technologically grounded”
that expert testimony is necessary. Espinal-Almeida, 699 F.3d at 612. Rather, Rodrigue may
authenticate the “demonstrative aid” by merely articulating facts, and not opinions, to satisfy a
“reasonable likelihood” that the data and the process were accurate and reliable. Id. at 612-13.

27

Accordingly, this Court denies the Village’s motion to exclude Rodrigue’s authentication
testimony. The admissibility of such testimony, however, does not imply that it will suffice to
authenticate the “demonstrative aid” identified as JPTO Pls. Ex. 96.
v. Kerry Galvin, Yesenia Rodriguez, Kathryn Stein & an Unnamed “Nixon
Peabody Paralegal”
Finally, the Village opposes the impeachment testimony of former interns for Hofstra
Law’s Community Legal Assistance Corporation (“Hofstra Law Clinic”), Kerry Galvin and
Yesenia Rodriguez, and former Hofstra Law Clinic lawyer, Kathryn Stein; and the authentication
testimony of an unnamed paralegal for the law firm of Nixon Peabody LLP. (Vill. Br., at 28-29;
see Pls. Opp., at 31.) As the Village argues, the above witnesses are “all improper,” in that they
were, or are, affiliated with Plaintiffs’ counsel in this case, Hofstra Law Clinic and Nixon
Peabody LLP. (Vill. Reply, at 9-10.)
As the Second Circuit has recognized:
The advocate-witness rule applies, first and foremost, where the attorney representing
the client before a jury seeks to serve as a fact witness in that very
proceeding. . . . [W]hen one individual assumes the role of both advocate and witness
it [may] so blur[] the line between argument and evidence that the jury’s ability to
find facts is undermined. . . .
For the most part, these concerns are absent or, at least, greatly reduced, where [as
here] the lawyer-witness does not act as trial counsel. . . . The only concern that may
remain is the implication that [he] may have been biased in his testimony as a result
of his former representation of plaintiffs. If the fear of bias were sufficient on its own
to prevent [him] from testifying, then a similar argument could be made that an
accountant, doctor, or anyone else who ever had a relationship with a party should be
forbidden to testify out of a concern for potential bias. That, of course, is not the rule.
Ramey v. Dist. 141, Int’l Ass’n of Machinists & Aerospace Workers, 378 F.3d 269, 282-83 (2d
Cir. 2004) (emphasis in original; second, third, and fourth modifications in original; quotations

28

and citations omitted) (affirming Judge Edward R. Korman’s decision to allow a lawyer to testify
at trial). 22
In this case, the impeachment testimony of the former Hofstra Law Clinic members is not
improper, as they are not “trial counsel.” Id. at 283. Galvin, Rodriguez, and Stein are no longer
affiliated with the law clinic. See Sea Trade Mar. Corp. v. Coutsodontis, No. 09-CV-488, 2011
WL 3251500, at *12-13 (S.D.N.Y. July 25, 2011) (Pittman, Mag. J.) (applying the advocatewitness rule to “attorneys who are current members of the firm presently representing
defendants,” as distinguished from attorneys who “moved to another firm”) (emphasis added).
Even if these individuals may still be treated as “member[s] of the trial team” from the law
clinic, for purposes of their testimony, there is no possible way for them to “act as [] advocate[s]
before the jury.” Murray v. Metro. Life Ins. Co., 583 F.3d 173, 179 (2d Cir. 2009) (Jacobs, C.J.)
(citing Ramey with approval). Finally, these individuals are only testifying to impeach other
witnesses, and not “as [] fact witness[es].” Ramey, 378 F.3d at 282. Because these individuals are
neither “trial counsel” nor “fact witness[es],” they raise none of the issues regarding “advocatewitness[es]” that warrants barring their impeachment testimony. Id. at 282-83.
The same can be said about the unnamed paralegal for Nixon Peabody LLP, whose
testimony will purportedly serve to authenticate the same “demonstrative aid” as Rodrigue’s
testimony (Pls. Opp., at 31). Unlike the former Hofstra Law Clinic members, the paralegal is a
current “member of the trial team” from the law firm. Murray, 583 F.3d at 179. But, the mere
fact that the paralegal “performs behind-the-scenes work for the client[s] in the same case”
22

Because the “advocate-witness rule” does not apply in this case, this Court need not
address the unsettled question of whether a violation of the rule may appropriately be resolved
by a motion to exclude the lawyer’s testimony. See Ramey, 378 F.3d at 283 (noting that “the
remedy where an attorney is called to testify may be to disqualify the attorney in his
representational capacity, not necessarily his testimonial capacity”) (emphasis in original).

29

hardly suffices to make him or her “trial counsel.” Culebras Enters. Corp. v. Rivera-Rios, 846
F.2d 94, 100 (1st Cir. 1988) (Campbell, C.J.). Moreover, the paralegal is merely providing
authentication, and not fact, testimony. Ramey, 378 F.3d at 282. As such, the paralegal should
not be precluded from testifying based on the “advocate-witness rule.” Id.
The paralegal, however, should be precluded from testifying, because he or she is
unnamed.

Plaintiffs, in the joint pre-trial order, have solely identified the paralegal as a

“Representative of Paralegal Department, Nixon Peabody.” (Dkt. No. 190, at 15-16); see, e.g.,
Marceline v. Delgado, No. 09-CV-1591, 2012 WL 517301, at *5 (D. Conn. Feb. 16, 2012)
(precluding the testimony of a witness “listed in the Joint Trial Memorandum as an unnamed
‘civilian witness’”); Loussier v. Universal Music Grp., Inc., No. 02-CV-2447, 2005 WL
5644439, at *7 (S.D.N.Y. Aug. 24, 2005) (“[T]he Court excludes testimony from the
unidentified representatives of [two non-party corporations][.]”). The fact that the paralegal is
only offering authentication testimony is no excuse for Plaintiffs’ failure to name him or her.
See Fed. R. Civ. P. 26(a)(1)(A)(i) (requiring a party to disclose “the name . . . of each individual
likely to have discoverable information . . . , unless the use would be solely for impeachment”)
(emphasis added). Surely at this late stage in the litigation, Plaintiffs should be able to identify
the paralegal who will authenticate the “demonstrative aid.”
Accordingly, this Court denies the Village’s motion to exclude the impeachment
testimony of Galvin, Rodriguez, and Stein, but grants the motion with respect to the unnamed
paralegal for Nixon Peabody LLP, subject to Plaintiffs identifying the paralegal at least one week
before trial.
This Court reserves decision on the Village’s challenge to the impeachment testimony of
the former Hofstra Law Clinic members on relevance grounds (Vill. Br., at 28-29). Without

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more specifics about each individual’s testimony, a relevance determination is premature. See
U.S. v. Forest, 729 F. Supp. 2d 403, 411 (D. Me. 2010) (Woodcock, Jr., C.J.) (“It is too early to
make a definitive determination. Trials take on a life of their own and based on this record, it is
premature to rule in or rule out [a witness’s] impeachment testimony.”).
II.

Conclusion
This Court GRANTS in part and DENIES in part the Village’s omnibus motion to

exclude various evidence. The only evidence to be excluded are: (i) four newspaper articles
identified as JPTO Pls. Exs. 179, 208-209, and 447; (ii) four of the Vision Long Island records
identified as JPTO Pls. Exs. 269 and 271-73; and (iii) the testimony of the unnamed paralegal for
Nixon Peabody LLP.
SO ORDERED:

/s/ Pamela K. Chen
PAMELA K. CHEN
United States District Judge
Dated: December 31, 2013
Brooklyn, New York

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