Conte v. County of Nassau, New York et al

Filing 651

MEMORANDUM AND OPINION. For the reasons stated herein and on the record during the trial, plaintiffs Rule 59 motion for a new trial on the issue of damages for his claims of tortious interference with contractual relationships is denied. The judgment in plaintiffs favor will follow. SO ORDERED. Ordered by Judge Joseph F. Bianco on 4/2/2015. (Street, Caitlin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 06-CV-4746 (JFB)(GRB)
_____________________

ANTHONY CONTE,
Plaintiff,
VERSUS

COUNTY OF NASSAU, ET AL.,
Defendants.
___________________
MEMORANDUM AND ORDER
April 2, 2015
___________________

Joseph F. Bianco, District Judge:

plaintiff’s false arrest claim against
Wasilausky; (2) plaintiff’s abuse of process
claim against all of the County defendants
except Sardo; (3) plaintiff’s Monell claim
against the County; and (4) plaintiff’s
tortious interference with contract claim
against all of the County defendants except
Sardo and Shaska.

Pro se plaintiff Anthony Conte
(“plaintiff” or “Conte”) filed the instant
action against the County of Nassau (“the
County”), Robert Emmons (“Emmons”),
Philip Wasilausky (“Wasilausky”), William
Wallace (“Wallace”), Christina Sardo
(“Sardo”), Michael Falzarano (“Falzarano”)
(collectively, the “County defendants”),
Tefta Shaska (“Shaska”), and Larry Guerra
(“Guerra”) (collectively, “defendants”),
alleging federal claims under 42 U.S.C.
§ 1983 for false arrest, malicious prosecution,
abuse of process, violation of the First
Amendment, conspiracy, and Monell liability
against the County. Plaintiff also asserted
various state-law claims. After discovery,
both parties moved for summary judgment.
By Memorandum and Order of the Court
dated September 30, 2010, the following
claims survived summary judgment: (1)

The matter was then tried before a jury,
which found that (1) Wasilausky subjected
plaintiff to an unlawful arrest; (2) none of the
County defendants maliciously abused
process in connection with plaintiff’s arrest
on a bad check charge or in connection with
the issuance of Grand Jury subpoenas; and
(3) Emmons, Wallace, and Falzarano
tortiously interfered
with
plaintiff’s

1

contractual relationships.1 With respect to
damages, the jury awarded $500.00 in
compensatory damages and $26,000.00 in
punitive damages against Wasilausky in
connection with plaintiff’s false arrest claim.
As to plaintiff’s tortious interference with
contract claim, the jury awarded plaintiff
$3,500.00 in compensatory damages for
tortious acts which took place before June 1,
2005, and $700,000.00 in compensatory
damages for tortious acts which took place on
or after June 1, 2005. The jury also awarded
punitive damages in connection with
plaintiff’s tortious interference with contract
claim: $60,000.00 against Emmons;
$443,000.00
against
Wallace;
and
$175,000.00 against Falzarano.

arrest claim, the Court denied both plaintiff
and the County defendants’ Rule 59 motions
for new trials as moot.
On appeal to the Second Circuit, plaintiff
argued that this Court erred by dismissing his
state law claims against the City of New
York; dismissing on summary judgment his
defamation, injurious falsehoods, and
intentional infliction of emotional distress
claims against Wasilausky, Emmons,
Wallace, Falzarano, and Shashka; dismissing
his First Amendment claims against the
County defendants on summary judgment;
granting the defendants’ post-judgment
motions as a matter of law on his tortious
interference with contract claims against
Wallace, Emmons, and Falzarano; and
denying his Rule 59 motion for a new
damages trial.

After the trial, defendants Wasilausky,
Wallace, Emmons, and Falzarano moved for
judgment as a matter of law pursuant to
Federal Rule of Civil Procedure 50(b) on
various grounds. The County defendants also
moved for a new trial under Federal Rule of
Civil Procedure 59. Plaintiff also moved
under Rule 59 for a new trial on damages,
arguing that the Court improperly denied him
the opportunity to present to the jury certain
evidence of damages associated with the
tortious interference with contract claim.

On December 17, 2014, the Second
Circuit vacated this Court’s rulings granting
judgment as a matter of law in favor of
Wallace, Emmons, and Falzarano on Conte’s
claims for tortious interference with
contractual relations, and remanded for
consideration of plaintiff’s Rule 59 motion
for a new trial on damages on the claim. The
Second Circuit affirmed this Court’s rulings
in all other respects.

By Memorandum and Order dated July
26, 2013, this Court granted the County
defendants’ Rule 50(b) motion — finding
that Wasilausky was entitled to judgment as
a matter of law on plaintiff’s false arrest
claim and Emmons, Falzarano, and Wallace
were entitled to judgment as a matter of law
on plaintiff’s tortious interference with
contract claim. Because the Court vacated
the jury’s verdict with respect to the tortious
interference with contract claim and the false

Presently before this Court on remand
from the Second Circuit is plaintiff’s Rule 59
motion for a new trial on damages related to
the tortious interference with contract
claims.2 For the reasons that follow, the
Court denies plaintiff’s motion for a new trial
on damages.

1

Plaintiff’s Monell claim was dismissed as a matter of
law at trial. (See Tr. 913-16.)
2
In a separate order, the Court has set forth its basis
for rejecting the County defendants’ argument that the

Court should consider on remand the alternative
grounds raised by the County defendants’ in their Rule
50(b) motion.

2

I. BACKGROUND

establish the full amount of damages required
to “restart and rebuild [his] business.” (Tr.
175.) Plaintiff asserted that such testimony
and evidence of damages was “not
speculative in terms of lost profits.” (Id.)
Instead, he argued it was “highly specific as
to what amount of money it’s going to take to
restart this business, to finance its operations
during a minimum of a six-month period in
the areas we were distributing.” (Id.) At that
juncture, though the Court noted that it was
“aware of no case authority that suggests that
you should be permitted to testify and recover
by projecting what it would take at this time
to restart a business that doesn’t exist
currently,” the Court decided to bifurcate the
proceedings, and address the issue of
damages at the second stage of trial, in the
event that the jury found in plaintiff’s favor
on the issue of liability. (Id. at 176-77.)

The Court detailed the factual
background and procedural history of this
case in the Memorandum and Order issued on
July 26, 2013, and does not repeat those facts
here. Conte v. County of Nassau, No. 06-CV4746 (JFB) (ETB), 2013 WL 3878738, at *29 (E.D.N.Y. 2013). For the analysis of the
specific issues raised by the present motion,
the following background information is
relevant.
A jury trial was held (and proceeded in
two phases, liability and damages) before this
Court, beginning on May 21, 2012, and
concluding on June 11, 2012. On May 23,
2012, the County defendants filed an in
limine motion to preclude plaintiff from
offering expert valuation evidence at trial.
(ECF No. 564.)
Plaintiff requested
permission for his expert, Barry L. Pulchin of
the Metis Group, to testify and present a
report estimating the loss Conte alleges he
suffered as a result of the actions of the
County defendants. 3 (See Pl.’s Letter dated
Dec. 15, 2009, ECF No. 392 (attaching report
created by plaintiff’s business valuation and
loss expert).) The report provides estimated
valuation data regarding I Media, including
projected revenue, and estimates I Media’s
projected lost earnings resulting from the
allegations listed in Conte’s Second
Amended Complaint at $549,000,000. (Id.)
Mr. Conte argued that the expert’s estimated
valuation of I Media was necessary to

After the jury found the County
defendants liable on plaintiff’s tortious
interference with contract claim on June 5,
2012, the Court proceeded to the damages
portion of the trial. At that point, plaintiff
renewed his request for his expert to testify
and present the report on the valuation of I
Media. The Court denied plaintiff’s request
on the grounds that plaintiff failed to identify
Mr. Pulchin as a witness in the pretrial order
and defendants did not have notice that there
would be any expert testimony at trial.4
Beyond expert testimony, Mr. Conte also
requested to present other evidence related to
the valuation of I Media during the damages
it was an oversight. Maybe it was, but it’s not a minor
oversight in a case pending this long. The pretrial
order has been pending this long. I don’t think it is
appropriate to go out and amend a pretrial order to get
an expert who the County, I think, had every right to
assume would not be a witness. I think that would be
highly prejudicial.” (Tr. 1128.) The Court also noted
that “there are issues . . . with the report in terms of
its methodology, in terms of whether a standard under
New York law could be sued for lost profits . . . But in
any event, based on the lack of notice, I don’t think it
is appropriate.” (Id. at 1129.)

3

Though plaintiff did not include Mr. Pulchin as a
testifying witness in the pretrial order, the expert’s
report is included as Item Number 116 and titled “I
Media Valuation Report by Metis Group.” (ECF No.
529.) Plaintiff responded to the County defendants in
limine motion in a May 23, 2012 letter to the Court.
(ECF No. 570.) In that letter, he notes that he
inadvertently failed to include Mr. Pulchin as an expert
witness in the pretrial order. (Id.)
4
The Court stated: “I’m excluding any testimony by
the author of that report since he was not identified as
a witness in the pretrial order. And as Mr. Conte said,
3

stage of the trial, on the grounds that the
jury’s damage calculation should take into
account what it would cost “to have my
business put back into the position it was in
at that point in time in 2005.” (Tr. 1201-02.)
Conte maintained that a key part of that cost
would be reestablishing and replacing route
sales licensing fees — routes that he claimed
he could no longer sell as a result of the harm
done by the defendants. (Id.) The Court
stressed that “putting the business in a
position that it was” is “a different measure
of damages than the New York law allows for
that particular claim” (Id. at 1203), and
requested that the parties submit additional
briefing on the issue. (Id. at 1209.) Both
parties submitted letters to the Court on the
damages issue on June 7, 2012. (ECF Nos.
588, 584.)

basis for lost profits under New York law
could be found, even if [the expert’s]
testimony was accepted.” (Id.)
The jury returned a verdict on damages
on June 11, 2012, awarding plaintiff on the
tortious interference with contract claim
$3,500.00 in compensatory damages for
tortious acts which took place before June 1,
2005, and $700,000.00 in compensatory
damages for tortious acts which took place on
or after June 1, 2005. The jury also awarded
punitive damages in connection with
plaintiff’s tortious interference with contract
claim: $60,000.00 against Emmons;
$443,000.00
against
Wallace;
and
$175,000.00 against Falzarano.
Following the jury’s verdict, the Court set
a briefing schedule for the parties’ Rule 50(b)
and Rule 59 motions. On June 13, 2012,
plaintiff filed a letter motion for a new trial
on damages under Rule 59. (ECF No. 597.)
The County defendants opposed plaintiff’s
motion by motion filed on August 13, 2012,
(ECF No. 606), and plaintiff submitted an
affidavit in further support of his motion,
dated August 24, 2012 (ECF No. 608). The
County defendants filed their motion for
judgment as a matter of law and for a new
trial on July 2, 2012. (ECF No. 601.)
Plaintiff submitted an affidavit in opposition
to the County defendants’ motion and in
further support of his Rule 59 Motion, dated
July 31, 2012, (ECF. No. 607), and the
County defendants replied on August 13,
2012. (ECF No. 605.) The Court held oral
argument on the motions on September 6,
2012.

On June 11, 2012, before the Court
instructed the jury on the damages, Conte
objected to the Court’s instruction on
damages on the grounds that it did not allow
Mr. Conte “to seek lost profits and/or . . . the
consequential damages I could have obtained
for the licensing fees from future licenses that
I could have sold for I Media.” (Tr. at 1226.)
The Court stated that in addition to “granting
the defendant’s motion in limine, . . . to
preclude the expert testimony on the issue of
lost profits, because the expert is not
identified in the pretrial order as a witness,”
the Court also “granted the motion in limine
to preclude him from making . . . [a]
presentation to the jury [regarding the
valuation evidence].” (Id. at 1226-28.) The
Court concluded “that [the expert’s] report
and the basis for his report would not provide
a proper evidentiary basis under New York
law for lost profits.” (Id.) Further, the Court
reasoned “in this particular case, where you
have a new business — it’s essentially a new
industry, but essentially in a new area of an
industry — that Mr. Conte has proffered no
evidence to the Court from which a sufficient

Following oral argument, the County
defendants filed a letter, dated September 11,
2012 (ECF No. 610), to address certain
contentions made by plaintiff in his sur-reply.
Plaintiff subsequently submitted letters to the
Court regarding the Rules 50(b) and 59
4

motions on September 12 and 13, 2012 (ECF
Nos. 611-613), October 1, 2012 (ECF No.
614) (which the County defendants opposed
by letter dated October 5, 2012 (ECF No.
615)), and November 4, 2012 (ECF No. 616).
The Court has considered all of the party’s
submissions in relation to plaintiff’s Rule 59
motion for a new trial on damages for the
tortious interference with contract claim.

105 (2d Cir. 2004) (quoting Atkins v. New
York City, 143 F.3d 100, 102 (2d Cir. 1998))
(alterations in original); see also Patrolmen’s
Benevolent Ass’n of N.Y.C. v. City of N.Y.,
310 F.3d 43, 54 (2d Cir. 2002).
Furthermore, “[w]here the resolution of
the issues depended on assessment of the
credibility of the witnesses, it is proper for the
court to refrain from setting aside the verdict
and granting a new trial.” Fugazy, 983 F.2d
at 363; see also DLC Mgmt. Corp., 163 F.3d
at 134 (“[A] court should rarely disturb a
jury’s evaluation of a witness’s credibility.”).
Alternatively, when a Rule 59 motion
challenges the Court’s failure to properly
instruct the jury, “[i]t is well-established that
a jury charge is erroneous if the instruction
misleads the jury as to the proper legal
standard, or it does not adequately inform the
jury of the law.” Luciano v. Olsten Corp.,
110 F.3d 210, 218 (2d Cir. 1997) (citation
omitted).

II. STANDARD OF REVIEW
Rule 59(a) states that a court may grant a
new trial in a jury case for any of the reasons
“for which a new trial has heretofore been
granted in an action at law in federal court.”
Fed. R. Civ. P. 59(a). The decision whether
to grant a new trial under Rule 59 “is
‘committed to the sound discretion of the trial
judge.’” Stoma v. Miller Marine Servs., Inc.,
271 F. Supp. 2d 429, 431 (E.D.N.Y. 2003)
(quoting Metromedia Co. v. Fugazy, 983
F.2d 350, 363 (2d Cir. 1992)). Thus, “[a] new
trial may be granted [] when the jury’s verdict
is against the weight of the evidence.” DLC
Mgmt. Corp. v. Town of Hyde Park, 163 F.3d
124, 133 (2d Cir. 1998). In contrast to a
motion for judgment as a matter of law, a
court may grant a motion for a new trial
“even if there is substantial evidence
supporting the jury’s verdict.” Id. at 134.
Additionally, “a trial judge is free to weigh
the evidence himself, and need not view it in
the light most favorable to the verdict
winner.” Id. (citing Song v. Ives Labs., Inc.,
957 F.2d 1041, 1047 (2d Cir. 1992)). A court
considering a Rule 59 motion for a new trial,
however, “must bear in mind [] that the court
should only grant such a motion when the
jury’s verdict is ‘egregious.’” Id. (citation
omitted). For this reason, “‘[a] motion for a
new trial ordinarily should not be granted
unless the trial court is convinced that the jury
has reached a seriously erroneous result or
that the verdict is a miscarriage of justice.’”
Munafo v. Metro. Transp. Auth., 381 F.3d 99,

Moreover, as it relates to the instant
motion, a court may grant a new trial under
Rule 59 if an erroneous evidentiary ruling
affected a substantial right of the moving
party. As Judge Townes explained,
[I]n order to obtain a new trial on this
ground, a litigant must do more than
merely voice a disagreement with the
court’s evidentiary rulings. Rather, [a]
motion for new trial on the basis of
improper evidentiary rulings will be
granted only where the improper ruling
affects a substantial right of the moving
party.
Litras v. Long Island Railroad, No. 02-CV5168 (SLT), 2006 WL 1455466, at *11
(E.D.N.Y. May 23, 2006) (citations and
quotations omitted); see also LNC Invs. v.
First Fidelity Bank, 126 F. Supp. 2d 778,
787-88 (S.D.N.Y. 2001) (finding that in a
5

Rule 59 motion based on evidentiary rulings,
moving party must demonstrate that the
“Court’s specified evidentiary rulings . . .
were (a) erroneous and (b) adversely affected
a substantial litigation right of the [moving
party], so that the rulings were ‘truly
harmful’ to the [moving party]”).
III.

the contract or the prospective relation; (b)
consequential losses for which the
interference is a legal cause; and (c)
emotional distress or actual harm to
reputation, if they are reasonably to be
expected to result from the interference.’”
Int’l Minerals I, 96 F.3d at 597 (quoting
Restatement (Second) of Torts § 774A
(1977).)

DISCUSSION

In this case, plaintiff requests a new trial
under Rule 59 on the grounds that this Court
erred in refusing to permit him to present
certain evidence to the jury for their
consideration when calculating damages for
his tortious interference with contract claims.
First, the Court will examine the relevant
New York law governing damages associated
with claims of tortious interference with
contractual relations. Then, the Court will
consider plaintiff’s Rule 59 motion.

Although New York law permits
recovery of consequential damages, such as
loss of future profits or loss of goodwill, for
tortious interference with prospective
contractual relations, see Guard-Life Corp.,
50 N.Y.2d at 197, a plaintiff is required to
meet “‘certain stringent requirements of
proof’ under New York law” to successfully
claim such damages. Sovereign Bus. Forms,
Inc. v. Stenrite Indus., Inc., No. 00 CIV. 3867
BDP, 2000 WL 1772599, at *13 (S.D.N.Y
Nov. 28, 2000) (quoting Toltec Fabrics, Inc.,
v. August Inc., 29 F.3d 778, 780 (2d Cir.
1994)). To recover lost profits, a plaintiff
must “establish both the existence and
amount of such damages with reasonable
certainty,” before the damages issue is even
submitted to the jury. Schonfeld v. Hilliard,
218 F.3d 164, 172 (2d Cir. 2000) (citing
Kenford Co. v. Cnty. of Erie, 67 N.Y.2d 257,
261 (N.Y. 1986)); see also Int’l Minerals and
Res., S.A. v. Bomar Res., Inc., 5 Fed. Appx.
5, 8 (2d Cir. 2001) (“Int’l Minerals II”)
(citing Trademark Research Corp. v.
Maxwell Online, Inc. 995 F.2d 326, 332 (2d
Cir. 1993) for the proposition that “under
New York law, existence of damages must be
capable of proof to the level of ‘reasonable
certainty’ before damages issue is even
submitted to jury.”). Notably, this does not
require plaintiff to prove lost profits “with
absolute precision,” but “they must be
‘capable of measurement based upon known
reliable factors without undue speculation.’”
Sovereign Bus. Forms, Inc., 2000 WL

A. Relevant Law
Here, plaintiff’s claims for tortious
interference with contractual relationships—
and the damages permitted for such claims—
are governed by New York law. Int’l
Minerals and Res., S.A. v. Pappas, 96 F.3d
586, 595 (2d Cir. 1996) (“Int’l Minerals I”).
“It is well-settled that, under New York law,
a plaintiff in a tortious interference with
contract case is entitled to damages in the
amount of the full pecuniary loss of the
benefits of the contract, and that ‘the
elements
of
damages,
including
consequential
damages,
[are]
those
recognized under the more liberal rules
applicable to tort actions.’” Id. at 597
(quoting Guard-Life Corp. v. S. Parker
Hardware Mfg. Corp., 50 N.Y.2d 183, 197
n.6 (N.Y. 1980)) (alteration in original).
Specifically, the Second Circuit has held that
a third party who is found liable for tortiously
interfering with a contract or a “‘prospective
contractual relation’” is liable for damages
for: “‘(a) the pecuniary loss of the benefits of
6

1772599, at *13 (quoting Ashland Mgt. Inc.
v. Janien, 82 N.Y.2d 395, 403 (N.Y. 1993)).5

specific prospective relations with which the
defendants interfered, and may not be based
on speculative damage to relations with the
public as a whole. See Dessert Beauty, Inc.
v. Fox, 568 F. Supp. 2d 416, 429 (S.D.N.Y.
2008). As a result, claims for lost profits for
tortious interference must be based on proof
concerning specific prospective relations and
must be attributable to interference with a
particular contract that was the subject of the
tortious interference. Id.; see also GuardLife Corp., 50 N.Y.2d at 197.

Under New York law, “[a] party may not
recover damages for lost profits unless they
were within the contemplation of the parties
at the time the contract was entered into and
are capable of measurement with reasonable
certainty.” Ashland Mgt., 82 N.Y.2d at 403;
see also 16 Casa Duse, LLC v. Merkin, No.
12 Civ. 3492 (RJS), 2013 WL 5510770, at
*14 (S.D.N.Y. Sept. 27, 2013) (awarding
consequential damages of $1,956.58, where
the tortious interference resulted in a film
screening’s cancellation, which in turn
prevented plaintiff from holding a postscreening reception, which directly resulted
in the loss of non-refundable deposit of that
amount). Damages that are “the result of
other intervening causes . . . cannot be
allowed.” Terwilliger v. Terwilliger, 206
F.3d 240, 248 (2d Cir. 2000) (quotations
omitted); see also Sovereign Bus. Forms,
2000 WL 1772599, at *8-9 (holding that
“plaintiffs’ proof of lost sales is speculative
in that it does not take into account the effect
of intervening causes in the overall decline of
American Stenrite’s business,” and that
plaintiffs failed to prove “loss of future
profits with any precision or certainty”
because they did not present “adequate proof
of such loss, nor have they shown that such
loss, if any, would be attributable to
[defendant’s] conduct, given intervening
causes in the overall and continuing decline
of American Stenritie’s business.”).

Notably, the party seeking damages for
loss of profit or reputation bears the burden
of satisfying these threshold requirements.
Sovereign Bus. Forms, 2000 WL 1772599, at
*13 (quoting Toltec Fabrics, Inc., 29 F.3d at
780).
B. Application
In accordance with the Second Circuit’s
mandate, the Court will now consider
plaintiff’s post-trial motion for a new trial on
the damages associated with his tortious
interference with contract claims under
Federal Rule of Civil Procedure 59. Plaintiff
contends a new trial is warranted on damages
because the Court “erroneously refused to
allow the plaintiff the opportunity to fully
present damages evidence” to the jury: (1)
“related to the numerous contracts he had
with his route distributors that were tortiously
interfered with by the County defendants,” 6
and (2) related to “licensing fees invested in
I Media and lost as a result of the harm done
and licensing fees intended to finance his

In addition, a tortious interference cause
of action requires plaintiff to prove the

in effect.” (ECF No. 607, ¶ 66.) This includes “the
additional cost of replacing the 2004/2005 distribution
services supply contracts based on present day higher
costs,” which plaintiff argues constitutes “damages
[incurred] as a direct result of the contract breaches
that were caused by the defendants.” (ECF No. 597 at
1.)

5

Similarly, damages are recoverable for actual harm
to reputation, if that harm is “reasonably expected to
result from the interference.” International Minerals
I, 96 F.3d at 597.
6

Specifically, plaintiff requests to present evidence of
“the added distribution costs he must pay today
compared to 2005 when those breached contracts were
7

future business operations.”7 (ECF No. 608
¶ 1.) Plaintiff contends that “the recovery of
these damages are [sic] essential to putting
the plaintiff back in the position he was in
when his business was destroyed and are [sic]
essential to the plaintiff’s ultimate right,
intention and goal of restarting and
rebuilding his business again today.” (Id.)
Despite his description at trial of damages for
licensing fees as “lost profits” (Tr. at 1226),
plaintiff now claims that these damages are
“actually lost business capital damages . . .
and . . . not lost profits,” and maintains that
they “can be easily and readily calculated
based on prior licensing agreements entered
into by the plaintiff and I Media” (ECF No.
608, ¶ 1).

substantial harm and damages in addition to
the consideration paid on those contracts that
was invested in I Media’s business operations
and lost.” (ECF No. 607, ¶ 66.) Plaintiff also
maintains that he “never argued for lost
profits and . . . his additional claim for the
replacement of licensing fees financing lost
are general damages that go to the ultimate
ability of I Media to be put back and even
operate on an ongoing basis and that those
costs to rebuild and continue operations, and
not the specific lost licensing fees, can be
determined with reasonable certainty and are
not lost profits or speculative.” (Id. ¶ 68.) In
opposition, the County defendants argue that
plaintiff “seeks an award of damages that is
wholly speculative, not such damages that
were actually incurred,” on the grounds that
the additional damages plaintiff requests
“presuppose[] that Plaintiff has printed
something to distribute” and there is “no
evidence of undistributed publications,
therefore, such damages were (and may not
be) ever incurred.” (ECF No. 606 at 2.)
Similarly, County defendants argue that
“there was no evidence that “I Media” was an
ongoing concern (and has not been since
2005).” (Id.)

As explained during the trial and below,
the Court finds that the damage evidence
plaintiff seeks to admit, despite his assertions
otherwise, does constitute a request for lost
profits or lost goodwill and is impermissibly
speculative under New York law. After a
thorough review, the Court concluded at trial
(and concludes again on this motion) that
plaintiff failed to demonstrate the existence
of such damages with the requisite level of
certainty to allow a jury to consider this type
of damages under New York law. As a result,
the Court denies plaintiff’s motion under
Rule 59 for a new trial on damages, and the
jury’s award of compensatory damages on
the tortious interference with contract claims
remains intact.

Despite plaintiff’s arguments, as the
Court pointed out at trial, under New York
law, damages for tortious interference with
contracts are not devised to approximate the
amount of money it would cost to restart a
claimant’s business today.
Any such
approximation is inherently “speculative,
possible or imaginary,” potentially “remote
or the result of other intervening causes,” and
not “reasonably certain and directly traceable
to the breach.” Kenford Co., 67 N.Y.2d at
261. That is especially true in this case, given

In his briefing papers, plaintiff asserts
that “as a consequence of the individual
County defendant’s tortious interference with
plaintiff’s contracts with his route
distributors, the plaintiff has suffered

(ECF No. 607, ¶ 66.) Plaintiff maintains that “[t]hese
added costs were not lost profits and were foreseeable,
not speculative and are capable of being calculated
with reasonable certainty.” (Id.)

7

Plaintiff notes that restoring his licensing mechanism
would require “new and additional funding,
substantially greater than the $1 million initially
invested to build I Media in 2005, in order to rebuild
and put back I Media to its original position in 2005.”
8

that plaintiff’s business does not currently
exist, and it is unclear what would have
happened to the business in the intervening
ten years after the tortious acts. In addition,
any estimation regarding the amount of
money that it would take to reestablish a new
business, like I Media, is also inadmissible,
because plaintiff’s evidence is speculative
under New York law. See Zink v. Mark
Goodson Prods., Inc., 261 A.D.2d 105, 106
(N.Y. App. Div. 1st Dep’t 1999); Kenford
Co., 67 N.Y.2d at 261 (“[T]he alleged loss [of
future profits] must be capable of proof with
reasonable certainty. . . . If it is a new
business seeking to recover for loss of future
profits, a stricter standard is imposed for the
obvious reason that there does not exist a
reasonable basis of experience upon which to
estimate lost profits with the requisite degree
of reasonable certainty.”) (internal citations
omitted); see also 24/7 Records, Inc. v. Sony
Music Entertainment, Inc., 566 F. Supp. 2d
305, 316 (S.D.N.Y. 2008) (noting that “there
is no evidence that 24/7 or the LLC ever
made a profit, and there is no reliable, nonspeculative means of ascertaining whether
the business could have become profitable . .
. . Accordingly, a lost profits theory of
damages may not be presented at trial.”).

Plaintiff cites to Trachtebel Energy Mktg,
Inc. v. AEP Power Mktg, Inc., 487 F.3d 89
(2d Cir. 2007) as support for his argument
that he is able “at the very least, to request all
the damages directly flowing from the
breached contracts interfered with by the
defendants.” (ECF No. 597 at 1.) In
Trachtebel, the Second Circuit stated that
“lost profits are consequential damages
when, as a result of the breach, the nonbreaching party suffers loss of profits on
collateral
business
arrangements.”
Tractebel, 487 F.3d at 109. “In New York, a
party is entitled to recover this form of lost
profits only if (1) it is demonstrated with
certainty that the damages have been caused
by the breach, (2) the extent of the loss is
capable of proof with reasonable certainty,
and (3) it is established that the damages were
fairly within the contemplation of the
parties.” Id. (citing Kenford Co., 67 N.Y.2d
at 261). The Second Circuit also noted that
lost profits can be general damages “when the
non-breaching party seeks only to recover
money that the breaching party agreed to pay
under the contract.” Id. The Circuit noted
that in this situation, lost profits constitute
general damages because if “the contract
[had] been performed, the non-breaching
party would have profited to the extent that
his cost of performance was less than the total
value of the breaching party’s promised
payments.” Id.

Further, plaintiff is only entitled to lost
profits attributable to a particular contract
that was the subject of the tortious
interference. See Guard-Life Corp., 50
N.Y.2d at 197. Here, plaintiff fails to
demonstrate that the damages he seeks are
tied to alleged interference with a particular
contract. Instead, the damages he requests
are tied intrinsically to the cost of restarting
his business — not to the specific contracts
with which the County defendants tortuously
interfered. Thus, such claims for damages
cannot be used as a basis for recovery on the
tortious interference with contract claim.

Plaintiff relies on Trachtebel to bolster
his claim that the damages he alleges he
suffered as a consequence of the County
defendants interference with the distribution
contracts (that is, the higher cost today of
replacing the distribution contracts he held in
2004/2005) were actually general damages,
and not speculative or consequential
damages. However, as explained above,
unlike the damages at issue in Trachtebel, the
damages plaintiff seeks are not “the direct
and probable consequence of the breach” and
9

are not “what the non-breaching party
bargained for,” and as such, do not constitute
general damages.
Id. at 109-10.
Furthermore, the damages plaintiff seeks to
introduce also do not qualify as permmissible
evidence of lost profits under Trachtebel,
because, as also explained above, they are not
capable of proof with “reasonable certainty”
and were not “fairly within the contemplation
of the parties.” Id. As a result, the Trachtebel
decision weighs against plaintiff’s argument
that his evidence of damages is admissible.

Dated: April 2, 2015
Central Islip, NY

***
Plaintiff is proceeding pro se. Defendants are
represented by Andrew Reginald Scott and
Sondra Meryl Toscano of the Nassau County
Attorney’s Office, 1 West Street, Mineola,
N.Y. 11501.

In sum, because there is no way of
proving with “reasonable certainty” the
damages Conte requests, the Court finds that
they are entirely speculative in nature.
Admission of any such evidence would have
required the jury to surmise damages based
solely on the plaintiff’s conjecture regarding
where I Media would have been absent the
interference, and what the Company would
have earned. As a result, the Court correctly
found that the evidence of damages plaintiff
sought to admit at trial was inadmissible
under New York law. Accordingly, given
there was no erroneous evidentiary ruling,
plaintiff’s Rule 59 motion for a new trial on
the issue is denied.
IV. CONCLUSION
For the reasons stated herein and on the
record during the trial, plaintiff’s Rule 59
motion for a new trial on the issue of damages
for his claims of tortious interference with
contractual relationships is denied. The
judgment in plaintiff’s favor will follow.
SO ORDERED.

______________________
JOSEPH F. BIANCO
United States District Judge

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