Conte v. County of Nassau, New York et al
Filing
716
MEMORANDUM AND OPINION For the reasons set forth herein, Defendants' motion for judgment as a matter of law is denied in its entirety. SO ORDERED. Ordered by Judge Joseph F. Bianco on 3/3/2017. (Hammond, Daniel)
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
March 3, 2017
___________________
Joseph F. Bianco, District Judge: 1
the evidence at trial and governmental immunity.
Following an unfavorable verdict resulting from a jury trial on pro se plaintiff Anthony Conte’s claim for tortious interference
with contract, defendants William Wallace,
Robert Emmons, and Michael Falzarano filed
a Rule 50(b) motion seeking judgment as a
matter of law (“JMOL”). In addition to challenging plaintiff’s claim under the statute of
limitations, defendants raised five substantive arguments regarding the sufficiency of
By Memorandum and Order dated July
26, 2013 (the “July 2013 Order”) (ECF No.
624), this Court granted the motion on the
statute of limitations ground without addressing the remaining five arguments and denied
both parties’ Rule 59 motions for a new trial
as moot. Plaintiff appealed. The Second Circuit reversed and remanded on the tortious interference claim with instructions “to resolve
that claim in further proceedings consistent
1
Plaintiff’s letter motion for recusal dated December
23, 2016 (ECF No. 710) is denied. Plaintiff asserts
that this Court is “hopelessly and profoundly biased
toward [him]” based on its previous rulings in this
case. (Id.) The Supreme Court has stated, however,
that “judicial rulings alone almost never constitute a
valid basis for a bias or partiality motion.” Liteky v.
United States, 510 U.S. 540, 555 (1994); see also
United States v. Diaz, 176 F.3d 52, 112 (2d Cir. 1999)
(“[O]pinions formed by a judge on the basis of facts
introduced or events occurring in the course of judicial
proceedings do not constitute a basis for recusal unless
they indicate that the judge has a deep-seated favoritism or antagonism that would make fair judgment impossible.”). As plaintiff has identified no extrajudicial
source as the basis for the alleged bias, see Liteky, 510
U.S. at 554–55, and no such basis exists, his motion
for recusal is denied.
1
with this order.” Conte v. Cnty. of Naussau,
596 F. App’x 1, 3 (2d Cir. 2014) [hereinafter
“Conte I”].
Rule 50 motion. Substantive evidence elicited during the trial relevant to specific issues
will be summarized in the discussion section.
On remand, the parties disputed the scope
of Conte I. Plaintiff argued that the only issue
on remand was his Rule 59 motion for a new
trial on damages, while defendants argued
that this Court was required to address all the
arguments they made in their Rule 50 motion.
By Order dated April 2, 2015 (the “April
2015 Order”) (ECF No. 650), this Court
interpreted Conte I as only requiring it to
address plaintiff’s Rule 59 motion based on
language in Conte I suggesting that the
Second Circuit had determined that the
defendants waived their remaining Rule 50
arguments.
Acting pro se, Conte filed this action
against the County of Nassau, Emmons, Wallace, Falzarano, Philip Wasilausky, Christina
Sardo, Tefta Shaska, and Larry Guerra, 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, including claims for false arrest,
abuse of process, and tortious interference
with contractual relations.
Following discovery, plaintiff and all defendants filed motions for summary judgment with the Court. In their motion, defendants extensively argued that they were entitled to absolute immunity and qualified immunity on plaintiff’s federal claims for false
arrest and abuse of process. (Defs.’ Br. Supp.
Mot. Sum. J., ECF No. 409 (“Defs.’ Sum. J.
Br.”), at 14–22.) In a single sentence at the
end of their brief, defendants also raised governmental immunity as a defense to the state
law claims against Emmons, Wallace, and
Falzarano, including the tortious interference
with contract claim. (See id. at 25–26).
The defendants appealed the April 2015
Order, and the Second Circuit again vacated
and remanded, holding that “it was this
Court’s intention that the district court consider, in the first instance, all arguments related to that claim other than the statute of
limitations claim.” Conte v. Emmons, 647 F.
App’x 13, 14 (2d Cir. 2016) [hereinafter
“Conte II”].
After considering the remaining five
grounds defendants raise in their Rule 50 motion, the Court concludes that defendants are
not entitled to JMOL and, therefore, denies
their Rule 50(b) motion. Specifically, the
Court concludes that (1) defendants waived
their immunity and sufficiency of the evidence arguments by failing to raise them before the verdict, and (2) no manifest injustice
will result from this Court declining to address these arguments on the merits.
After a detailed review of the record and
submissions of the parties, the Court issued a
Memorandum and Order dated September
30, 2010 (the “Summary Judgment Order”)
(ECF No. 462), granting in part and denying
in part defendants’ motion for summary judgment and denying plaintiff’s motion for summary judgment in its entirety. In that Order,
the Court disposed of the defendants’ state
law governmental immunity arguments with
respect to Emmons, Wallace, and Falzarano,
concluding that, under New York law, prosecutors are not entitled to governmental immunity “when performing an investigation
outside the auspices of the grand jury,” and
I. BACKGROUND
Familiarity with the facts is assumed. As
such, this section will only summarize the
procedural history relevant to defendants’
2
there were factual issues over whether the
“defendants employed regularly issued legal
process with a collateral purpose.” (Summary Judgment Order at 40.) This rendered
summary judgment on the state law claims on
the grounds of governmental immunity improper. (Id.) Between summary judgment
and the jury’s verdict, defendants did not explicitly raise governmental immunity in connection with the tortious interference with
contract claim. (See, e.g., County Defs.’ Proposed Portion of Pre-Trial Order, ECF No.
572 (“Defs.’ Pre-Trial Order”), at 5; County
Defs.’ Proposed Jury Verdict Sheet (“Defs.’
Verdict Sheet”), ECF No. 556, at 4–5.)
It was at that point that the following exchange occurred:
The Court: That is preserved for purposes of renewing it at the end of the
case. Do you believe there is insufficient evidence as a whole as well?
Mr. Scott: Absolutely.
The Court: In your summary judgment motion, you moved both on absolute immunity [and] qualified immunity. And I assume that that is continuing as well?
Mr. Scott: Yes. Thank you, Judge.
Pursuant to the Summary Judgment Order, the following claims survived summary
judgment: (1) 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 defendants except Sardo and
Shaska. The matter was then tried before a
jury.
(Id.) Counsel did not elaborate on either of
these arguments, and the Court reserved decision on the Rule 50 motion. (Id. at 908,
912.)
At the end of the trial, the jury found that
(1) Wasilausky subjected plaintiff to an unlawful arrest; (2) none of the 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 contractual relationships. 2 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 that took place before June 1, 2005,
and $700,000.00 in compensatory damages
for tortious acts that took place on or after
June 1, 2005. The jury also awarded punitive
At the conclusion of plaintiff’s case in
chief, defendants orally moved pursuant to
Rule 50(a) for JMOL. (Tr. 902–08). With
respect to plaintiff’s tortious interference
with contract claim, defense counsel only
raised a statute of limitations argument. (See
id. at 902–05.) He then spent considerable
time discussing plaintiff’s claims for false arrest and abuse of process, neither of which is
at issue here. (See id. at 905–08.) At the conclusion of his argument on an abuse of process issue, counsel remarked that he “did not
fully brief that particular issue.” (Id. at 908.)
2
Plaintiff’s Monell claim was dismissed as a matter of
law at trial. (See Tr. at 913–16.)
3
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.
within the limitations period. (July 2013 Order at 34). Because the Court vacated the
jury’s verdict with respect to the tortious interference with contract claim, the Court denied both parties’ Rule 59 motions for new
trials as moot.
After the trial, defendants Wasilausky,
Wallace, Emmons, and Falzarano 3 moved for
JMOL pursuant to Federal Rule of Civil Procedure 50(b) on various grounds. As relevant
here, defendants argued that (1) plaintiff’s
tortious interference claim was barred by the
statute of limitations; (2) plaintiff failed to
adduce evidence of contracts he could enforce; (3) plaintiff failed to establish defendants breached any contract; (4) plaintiff failed
to establish he had suffered any economic
harm; (5) plaintiff’s agreements with route
distributors were terminable at will, and thus
could not give rise to an action; and (6) plaintiff’s claim was barred by governmental immunity. 4 (See Defs.’ Br. Supp. of Mot. J. as
Matter Law, ECF No. 601-20 (“Defs.’ Br.”),
at 10–31). Plaintiff, meanwhile, 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 appeal, plaintiff argued, as relevant
here, that this Court erred by granting the
Rule 50(b) motion on his tortious interference with contract claim against Wallace,
Emmons, and Falzarano and denying his
Rule 59 motion for a new damages trial. 5 Defendants contested these arguments, contending that this Court’s statute of limitations reasoning was correct and, in the alternative, that
the Second Circuit could affirm the judgment
on the basis of the other five issues raised in
their Rule 50(b) motion.
On December 17, 2014, the Second Circuit vacated this Court’s ruling granting
JMOL (on the statute of limitations ground)
in favor of Wallace, Emmons, and Falzarano
in connection with Conte’s claim for tortious
interference with contractual relations, and
remanded. Conte I, 596 F. App’x at 5–7. The
Court held that, because the factual issues relating to the statute of limitations defense
were not submitted to the jury, the defendants
were not entitled to have that issue decided
by the district court. Id. at 6. With respect
to the alternative grounds raised on appeal by
defendants for JMOL on the tortious interference claim, the Second Circuit “decline[d] to
address” defendants’ immunity or insufficiency of the evidence arguments “for the
In its July 2013 Order, this Court granted
defendants’ Rule 50(b) motion—finding that
Emmons, Falzarano, and Wallace were entitled to JMOL on plaintiff’s tortious interference with contract claim because plaintiff
failed to prove that any injury occurred
3
5
Hereinafter, “defendants” refers to Wallace, Emmons, and Falzarano.
Plaintiff further argued that this Court erred in 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; and dismissing his First Amendment claims against the County
defendants on summary judgment. The Court of Appeals, however, affirmed these decisions. See Conte I,
596 F. App’x at 3.
4
The Rule 50(b) motion also challenged the jury verdict on plaintiff’s false arrest claim against defendant
Wasilausky. This Court granted that motion, and the
Second Circuit upheld that decision on appeal. See
Conte I, 596 F. App’x at 3.
4
first time on appeal” after noting that “defendants did not specifically articulate these
grounds for reversal in their Rule 50(a) motion.” Id. “To be entitled to judgment as a
matter of law on a factual issue,” the Court
continued, “the movant must, at the close of
the plaintiff's case, identify the specific element that the defendant contends is insufficiently supported.” Id. (quoting Galdieri–
Ambrosini v. Nat’l Realty & Dev. Corp., 136
F.3d 276, 286 (2d Cir. 1998)). With respect
to the new trial motions under Rule 59, the
Court determined that plaintiff was entitled to
have the district court decide his new trial
motion on remand. Id. at 6–7. With respect
to the defendants’ new trial motion, the Court
held that “because the defendants do not raise
any reason for a new trial on appeal, we see
no reason to deprive [Conte] of the benefit of
the jury’s verdict.” Id. at 7 (citation omitted).
In closing, the Second Circuit directed this
Court “to resolve that claim [i.e., plaintiff’s
tortious interference with contract claim] in
further proceedings consistent with this order.” Id.
munity and sufficiency of the evidence arguments “in the District Court” (April 2015 Order at 4; see also id. at 5 (“[T]he Second Circuit made it abundantly clear that it had reviewed the record and found those exact arguments to be waived. In other words, they
could not be considered on appeal because
they had been waived in the District
Court.”)). Correspondingly, this Court held
that “the scope of the remand [from Conte I
was] clearly limited to consideration of plaintiff’s motion for a new trial on damages” and,
therefore, declined to address defendants’ remaining substantive arguments. (Id. at 6.)
On remand, the parties disputed the scope
of Conte I. Plaintiff argued that the only issue for the Court to decide was his motion for
a new trial on damages, while defendants
contended that the mandate required the
Court to revisit their Rule 50 motion in its entirety—beyond the limitations issue that precipitated the remand.
As such, the Court now considers defendants’ Rule 50(b) motion, including the five
separate arguments raised as grounds for relief that this Court previously declined to address in its April 2015 Order. For the reasons
set forth below, defendants’ Rule 50(b) motion is denied in its entirety.
On appeal, the Second Circuit vacated the
April 2015 Order and remanded. Conte II,
647 F. App’x at 14. It clarified that, in Conte
I, “it was this Court’s intention that the district court consider, in the first instance, all
arguments related to [the tortious interference
with contract] claim other than the statute of
limitations claim.” Id. Consequently, it “remand[ed] again to give the district court the
opportunity to do so.” Id.
II. STANDARD OF REVIEW
In its April 2015 Order, this Court interpreted Conte I as only requiring it to address
plaintiff’s Rule 59 motion for a new trial. 6 It
read the language in Conte I regarding defendants’ failure to “specifically articulate
these [alternative] grounds for reversal in
their Rule 50(a) motion,” 596 F. App’x at 6,
as a holding that defendants waived their im-
The standard governing motions for
JMOL pursuant to Rule 50 is well-settled. A
court may not properly grant JMOL under
Rule 50 against a party “unless the evidence,
viewed in the light most favorable to the nonmoving party, is insufficient to permit a reasonable juror to find in his favor.” Arlio v.
Lively, 474 F.3d 46, 51 (2d Cir. 2007) (citing
6
The Court denied plaintiff’s Rule 59 motion in a separate Memorandum and Order issued April 2, 2015.
(ECF No. 651.) Plaintiff appealed that decision (ECF
No. 661), but has since withdrawn his appeal.
5
v. Local Union No. 3, Int’l Bd. of Elec. Workers, 34 F.3d 1148, 1154–55 (2d Cir. 1994))).
In other words, this Court may only grant defendants’ Rule 50(b) motion “if it cannot find
sufficient evidence supporting the jury’s verdict.” Playtex Products, 2004 WL 1658377,
at *2; see also Black v. Finantra Capital, Inc.,
418 F.3d 203, 209 (2d Cir. 2005) (“A court
evaluating [] a motion [for JMOL] cannot assess the weight of conflicting evidence, pass
on the credibility of the witnesses, or substitute its judgment for that of the jury.”). For
this reason, a party moving to set aside a jury
verdict must clear “a high bar.” LavinMcEleney v. Marist College, 239 F.3d 476,
479 (2d Cir. 2001).
Galdieri-Ambrosini, 136 F.3d at 289). Generally, a court reviewing such a motion must
defer to all credibility determinations and
reasonable inferences that the jury may have
drawn at trial. See Frank Sloup & Crabs Unltd., LLC v. Loeffler, 745 F. Supp. 2d 115, 120
(E.D.N.Y. 2010). That is, a court considering
a Rule 50 motion “may not itself weigh the
credibility of witnesses or consider the
weight of the evidence.” Meloff v. N.Y. Life
Ins. Co., 240 F.3d 138, 145 (2d Cir. 2001)
(quoting Galdieri-Ambrosini, 136 F.3d at
289); see also Playtex Prod., Inc. v. Procter
& Gamble Co., No. 02 CIV.8046 WHP, 2004
WL 1658377, at *2 (S.D.N.Y. July 26, 2004)
(“A Rule 50(b) motion cannot be granted ‘if,
drawing all reasonable inferences in favor of
the nonmoving party and making all credibility assessments in his favor, there is sufficient
evidence to permit a rational juror to find in
his favor.’” (quoting Sir Speedy, Inc. v. L&P
Graphics, Inc., 957 F.2d 1033, 1039 (2d Cir.
1992))).
III. DISCUSSION
Defendants argue that (1) they raised
their governmental immunity and sufficiency
of the evidence arguments in their Rule 50(a)
motion and (2) even if they had not done so,
JMOL is necessary to avoid a manifest injustice. For the reasons set forth below, the
Court disagrees and, therefore, denies defendants’ Rule 50(b) motion.
Thus, JMOL is appropriately granted
where “(1) there is such a complete absence
of evidence supporting the verdict that the
jury’s findings could only have been the result of sheer surmise and conjecture, or (2)
there is such an overwhelming amount of evidence in favor of the movant that reasonable
and fair minded [persons] could not arrive at
a verdict against [it].” Advance Pharm., Inc.
v. United States, 391 F.3d 377, 390 (2d Cir.
2004) (alterations in original) (quoting
Galdieri-Ambrosini, 136 F.3d at 289); see
also Kinneary v. City of N.Y., 601 F.3d 151,
155 (2d Cir. 2010) (same); This is Me, Inc. v.
Taylor, 157 F.3d 139, 142 (2d Cir. 1998)
(stating that a court assessing a Rule 50 motion must consider whether “the evidence is
such that, without weighing the credibility of
the witnesses or otherwise considering the
weight of the evidence, there can be but one
conclusion as to the verdict that reasonable
[people] could have reached” (quoting Cruz
A. Waiver
Once a case has been submitted to the
jury, a motion for JMOL “may be renewed
only on grounds that were specifically articulated before submission of the case to the
jury.” Kirsch v. Fleet St., Ltd., 148 F.3d 149,
164 (2d Cir. 1998); see also Provost v. City
of Newburgh, 262 F.3d 146, 161 (2d Cir.
2001) (“Because [defendant] did not specifically include a qualified immunity argument
in his pre-verdict request for judgment as a
matter of law, he could not have included
such an argument in his post-verdict motion
even had he attempted to do so.”). The purpose of this “specificity requirement” “is to
give the other party an opportunity to cure the
defects in proof that might otherwise preclude him from taking the case to the jury.”
6
the specificity requirement. Galdieri-Ambrosini, 136 F.3d at 286. In their Rule 50(a)
motion in Kirsch, for example, the defendants “challenged the evidence of discrimination and constructive discharge . . . but they
did not mention any lack of proof as to willfulness.” 148 F.3d at 164. Thus, when they
challenged the sufficiency of the evidence on
the element of willfulness in their post-trial
motion, the Second Circuit held that the
“challenge was not authorized by Rule
50(b) because no JMOL motion had been
made on that issue before submission of the
case to the jury.” Id.
Galdieri-Ambrosini, 136 F.3d at 286 (quoting
Baskin v. Hawley, 807 F.2d 1120, 1134 (2d
Cir. 1986)). Therefore, where a defendant arguably failed to satisfy the specificity requirement, “[t]he ultimate question is
whether the motion, either of itself or in the
context of the ensuing colloquy, was sufficiently specific to alert the opposing party to
the supposed deficiencies in her proof.” Id.
General arguments not tailored to a specific claim are insufficient to meet the specificity requirement. In Piesco v. Koch, 12
F.3d 332, 341 (2d Cir. 1993), for example,
the Second Circuit held that the defendants
failed to meet the specificity requirement in
their Rule 50(a) motion when, at the close of
the evidence, counsel simply stated, “Defendants move for a directed verdict.” This
statement, the Court reasoned, “plainly did
not identify the issue on which defendants
contended there was insufficient evidence to
permit the jury to find in favor of [the plaintiff]” and, therefore, did not give the “plaintiff the adequate notice envisioned by Rule
50.” Id. The Court reached the same conclusion in Smith v. Lightning Bolt Products.,
Inc., 861 F.2d 363, 368 (2d Cir. 1988), where
the defendant’s “first motion stated simplistically that ‘plaintiff has failed to make out a
prima faci[e] case’; and its attorney renewed
this motion with only the statement, ‘I don't
believe there is any evidence before this Jury
of any fraud.’” Again, these motions were
not “sufficiently specific to alert [the plaintiff] to [the defendants’ Rule 50(b)] contentions that there was simply no proof” to support a specific element of the claim. Id.; see
also Am. Nat’l Fire Ins. Co. v. Mirasco, Inc.,
451 F. Supp. 2d 576, 581 (S.D.N.Y. 2006).
Furthermore, where a defendant raises an
argument with respect to one claim but not
another, the Second Circuit has held that the
defendant waived that argument with respect
to the second claim. For instance, in
McCardle v. Haddad, 131 F.3d 43, 52 (2d
Cir. 1997), a case involving 42 U.S.C. § 1983
claims for unlawful stop and unlawful seizure, defense counsel argued at the close of
the evidence that “on the issue of illegal stop
. . . the evidence compels a ruling for the Defendant . . . on the issue of qualified immunity.” However, “no mention whatever was
made of qualified immunity with respect to
the claim of illegal search.” Id. After the
trial, the defendant moved for JMOL on the
plaintiff’s unlawful search claim on the
grounds of qualified immunity. Id. The Second Circuit determined that the “motion was
improper to the extent that it sought to invoke
qualified immunity because no motion for
JMOL on that basis had been directed to the
claim of unlawful search at trial.” Id. In
Galdieri-Ambrosini, by contrast, the Second
Circuit concluded that the defendant adequately raised a particular argument with respect to multiple claims. 136 F.3d at 287. In
that case, defense counsel made a detailed argument for JMOL prior to the verdict on the
plaintiff’s gender discrimination claim. Id.
The district court then asked if the defendant’s 50(a) motion “was meant to encompass
Relatedly, when challenging the sufficiency of the evidence, a defendant must
“identify the specific element that the defendant contends is insufficiently supported” before the case is submitted to the jury to satisfy
7
the [plaintiff’s] retaliation claim,” as the
court “had not heard [defense] counsel include that claim.” Id. Counsel replied, “I
think that they follow. The issues are the
same. There is no evidence, your Honor. I
think that flows right through every cause of
action.” Id. (quoting trial transcript). The
Second Circuit held that this comment rendered “the Rule 50(a) motion . . . sufficient to
cover the claim of retaliation.” Id.
summary judgment motion, you moved both
on absolute immunity [and] qualified immunity. And I assume that that is continuing as
well?” (Tr. at 908.) They argue that, given
their governmental immunity arguments at
summary judgment, counsel’s affirmative response to the Court’s question was adequate
to notify plaintiff of their governmental immunity argument with respect to his tortious
interference with contract claim.
Finally, while making a Rule 50(a) argument, a defendant’s “explicit reference to materials and argument previously supplied to
the court” can preserve those arguments for
the Rule 50(b) motion. Hudson Optical
Corp. v. Cabot Safety Corp., 162 F.3d 1148,
*1 (2d Cir. 1998) (unpublished opinion)
(quoting Fed. R. Civ. P. 50, Advisory Committee Notes). In Hudson, for example, the
Second Circuit noted that, “[i]n moving for
judgment as a matter of law prior to the verdict, [the defendant] referenced its motion in
limine (in which it had argued that the fraud
claim was not viable).” Id. The Court, therefore, concluded that the argument was preserved for the Rule 50(b) motion. Id.
The Court disagrees. It is true that a party
can preserve an argument prior to the close of
evidence by making an “explicit reference to
materials and argument previously supplied
to the court.” Hudson Optical, 162 F.3d
1148, *1 (quoting Fed. R. Civ. P. 50, Advisory Committee Notes). In the context of the
record, however, counsel’s vague, Courtprompted confirmation that he was “continuing” his immunity arguments from the summary judgment stage was not explicit enough
to put plaintiff on notice that defendants were
reviving their governmental immunity argument with respect to the tortious interference
with contract claim. See Galdieri-Ambrosini,
136 F.3d at 287 (“The ultimate question is
whether the motion, either of itself or in the
context of the ensuing colloquy, was sufficiently specific to alert the opposing party to
the supposed deficiencies in her proof.”).
1. Governmental Immunity
Under this body of law, defendants’ governmental immunity argument “had plainly
been waived” when they raised it in their
written Rule 50(b) motion after the trial.
McCardle, 131 F.3d at 52. Defendants did
not explicitly raise their state law governmental immunity argument in their Rule
50(a) motion. See Conte I, 596 F. App’x at 6
(“[D]efendants did not specifically articulate
these grounds for reversal in their Rule
50(a) motion.”). Thus, that argument was
waived. See Provost, 262 F.3d at 161;
Kirsch, 148 F.3d at 164.
Specifically, the Court asked about immunity immediately after counsel delivered
an argument on plaintiff’s abuse of process
claim. (See Tr. at 907–08.) Concentrating
“on the third cause of action, malicious abuse
of process,” counsel stated that plaintiff
failed to establish “any evidence of malice or
an intent to destroy the plaintiff’s business.”
(Id. at 907, 908.) He continued, “I did not
fully brief that particular issue,” and the
Court responded, “That is preserved for purposes of renewing it at the end of the case.”
(Id. at 908.) It was only at this point that the
questions about immunity arose. (Id.) No
Defendants point out that counsel responded “Yes” when, at the close of plaintiff’s case, the Court asked him, “In your
8
mention was made in that moment of the tortious interference claim, as everyone involved was focused on abuse of process. (See
id. at 907–08.) Indeed, a lengthy discussion
of plaintiff’s false arrest claim had occurred
between the tortious interference and abuse
of process arguments (see id. at 905–08), further divorcing the tortious interference discussion from the Court’s question about immunity. Thus, in context, counsel clearly was
reasserting his immunity defenses with respect to abuse of process and possibly false
arrest, but certainly not tortious interference.
plaintiff’s false arrest and abuse of process
claims does not apply to his tortious interference claim. It follows that defendants’ reference to these arguments from summary judgment during their oral Rule 50(a) motion was
insufficient “to alert the opposing party to the
supposed deficiencies in [his] proof.”
Galdieri-Ambrosini, 136 F.3d at 287.
In their proposed pre-trial order, moreover, defendants did not indicate that they
would be raising governmental immunity as
an affirmative defense to the tortious interference with contract claim. (See Defs.’ PreTrial Order at 5 (qualified immunity raised as
a defense to state law claims of false arrest
and malicious abuse of process, but not tortious interference with contract).) Throughout the trial, meanwhile, counsel’s oral arguments concerning immunity were restricted
to the false arrest and abuse of process
claims, not tortious interference. (See, e.g.,
Tr. at 1022 (defense counsel discussing immunity in the context of the false arrest claim
and the misdemeanor information); cf. id. at
1189–1191 (while renewing Rule 50(a) motion, immunity argument restricted to false
arrest issue, and only argument on tortious interference issue concerned statute of limitations).)
The procedural history of this case bolsters this reading of the record. The only time
defendants raised the governmental immunity argument prior to their Rule 50(b) motion
was at summary judgment. At that time,
however, the argument was fairly cursory, especially with respect to tortious interference
with contract. After noting that plaintiff
raised state law claims including tortious interference (Defs.’ Sum. J. Br. at 25), defendants summarily asserted that “Emmons,
Wasilausky, Wallace, and Falzarano are also
entitled to absolute immunity from suit since,
under New York State Law, a prosecutor is
immune from civil suit for official acts performed in the investigation and prosecution
of criminal charges” (id. at 26 (citation omitted)). They did not elaborate on how the actions giving rise to plaintiff’s tortious interference claims fell into this category at this
point in their brief. Their earlier arguments
concerning federal immunity, meanwhile,
were restricted to plaintiff’s claims for false
arrest and abuse of process, which were based
on different courses of conduct. 7 (See id.)
Therefore, the logic of defendants’ federal
immunity arguments made with respect to
In light of defendants’ apparent abandonment of the immunity defense on the tortious
interference claim at the time counsel made
his Rule 50(a) motion, counsel’s one-word
answer to the Court’s brief question regarding immunity cannot be interpreted as a revival of defendants’ perfunctory summary
judgment argument that they were entitled to
governmental immunity on the tortious inter-
7
Specifically, plaintiff’s tortious interference with
contract claim was based on defendants’ statements to
route distributors, printers, and advertisers that plaintiff was a scam artist and his business was fraudulently
run. (See July 2013 Order at 8–10, 27.) His false ar-
rest claim, by contrast, arose out of Wasilausky’s arrest of plaintiff in connection with a bad check (see id.
at 5, 14–16), and his abuse of process claim arose out
of the subpoenas defendants issued to plaintiff requesting documents in connection with their investigation
(see id. at 9).
9
ference claim. Instead, it can only be interpreted as, at most, a reassertion of the immunity arguments on the false arrest and abuse of
process claims.
arguments were raised for the first time in
their initial Rule 50(b) motion. (See Defs.’
Br. at 16–19 (no evidence of valid contracts),
19–23 (breach), 23–26 (damages), 27–29
(conduct)). As such, the Court concludes that
defendants waived these arguments. See
Provost, 262 F.3d at 161; Kirsch, 148 F.3d at
164.
It follows that, because the Second Circuit has made clear that arguments on one
claim are not enough to preserve those same
arguments on another claim, defendants have
not preserved their immunity argument on
the tortious interference claim. See McCardle, 131 F.3d at 52. Unlike Galdieri-Ambrosini, this was not a case where counsel
made an argument about why immunity
should be granted on the false arrest and
abuse of process claims and then added as an
afterthought that the same logic applied to the
tortious interference claim. See 136 F.3d at
287. Instead, it is much closer to McCardle,
where counsel briefly raised qualified immunity on only one claim, and the Second
Circuit deemed that the defendant waived
qualified immunity on the other claim. 131
F.3d at 52. Specifically, as noted above,
counsel’s passing remark, at most, reasserted
defendants’ immunity arguments on the false
arrest and abuse of process claims, rendering
it inadequate to preserve their Rule 50(b) argument that they are entitled to governmental
immunity on the separate tortious interference claim. See id. This argument, therefore,
was waived. 8 See id.; Provost, 262 F.3d at
161; Kirsch, 148 F.3d at 164.
Again, defendants argue that their colloquy with the Court at the close of plaintiff’s
case-in-chief adequately preserved their sufficiency of the evidence arguments. Specifically, they argue that, because counsel confirmed that he “believe[d] there [was] insufficient evidence as a whole as well,” they did
not waive their more specific arguments challenging the individual elements of plaintiff’s
tortious interference with contract claim.
The Court disagrees. At the outset, the
Court finds that counsel’s remark, when read
in context, was a reference to his abuse of
process and false arrest claims for the same
reasons that his comment on immunity only
applied to those claims. Even assuming,
however, that counsel was challenging the
sufficiency of the evidence underlying all of
plaintiff’s claims, it is clear from Piesco and
Lighting Bolt Products that short, conclusory,
and simplistic statements are not enough to
preserve more detailed arguments. Counsel’s
statement here closely resembles the remarks
in Lightning Bolt Products, where the attorney stated, at various times prior to the verdict, that “plaintiff has failed to make out a
prima faci[e] case” and that he, the attorney,
did not “believe there [was] any evidence before this Jury of any fraud.” 861 F.2d at 368.
Like those statements, counsel’s passing,
conclusory remark here was not “sufficiently
specific to alert [plaintiff] to [defendants’]
present contention[s]” that the evidence was
insufficient to show a valid contract, conduct
2. Sufficiency of the Evidence
The same is true for defendants’ sufficiency of the evidence arguments. See
McCardle, 131 F.3d at 52. In their Rule 50(a)
motion, defendants never claimed, as they do
now, that there was no evidence of valid contracts, conduct constituting tortious interference, actual breach, causation, or damages.
See Conte I, 596 F. App’x at 6. Instead, these
8
As discussed below, even if properly preserved, the
Court concludes that defendants would not be entitled
to JMOL on this ground based upon the record before
the Court.
10
(“[T]he Court could, at its discretion, review
the [waived] issue . . . if doing so was required to prevent manifest injustice.”). Nevertheless, “[w]here the argument presents a
question of law and there is no need for additional
fact-finding,
and manifest injustice may arise, then exercise of this discretion
is warranted.” Welch v. United Parcel Serv.,
Inc., 871 F. Supp. 2d 164, 178 (E.D.N.Y.
2012) (quoting Malmsteen, 369 F. App’x at
251).
constituting tortious interference, a breach,
causation, or damages. Id. From this sole remark, plaintiff could not have discerned these
more precise arguments with enough clarity
“to cure the defects in proof that might otherwise preclude him from taking the case to the
jury.” Galdieri-Ambrosini, 136 F.3d at 286
(quoting Baskin, 807 F.2d at 1134.) Indeed,
counsel’s general statement here would provide even less notice than the defense attorney’s detailed arguments in Kirsch targeting
specific elements of the plaintiff’s claim,
which the Second Circuit nevertheless found
insufficient to preserve a similar argument on
a different claim. See 148 F.3d at 164.
Therefore, the Court concludes that counsel’s
brief remark prior to the verdict was not specific enough to preserve defendants’ Rule
50(b) sufficiency of the evidence arguments.
See Provost, 262 F.3d at 161; Kirsch, 148
F.3d at 164; Galdieri-Ambrosini, 136 F.3d at
286.
The manifest injustice inquiry is fact-specific, Protostorm, LLC v. Antonelli, Terry,
Stout & Krauss, LLP, No. 08-CV-931 PKC
JO, 2015 WL 3605143, at *4 (E.D.N.Y. June
5, 2015) (“What constitutes manifest injustice turns on the specifics of each case.”), and
“a defendant may not merely argue that the
procedural bar should be waived because
they should win on the underlying motion.”
Welch, 871 F. Supp. 2d at 178. Instead, he
must establish that the “jury’s verdict is
wholly without legal support.” Patsy’s Italian Rest., Inc. v. Banas, 658 F.3d 254, 271
(2d Cir. 2011) (quoting Russo v. State of N.Y.,
672 F.2d 1014, 1022 (2d Cir. 1982)). In
Russo, for instance, the Second Circuit concluded that a jury verdict was “wholly without legal support” where the plaintiff “failed
to prove one of the four essential elements of
a malicious prosecution action.” 672 F.2d at
1022; see also Sojak v. Hudson Waterways
Corp., 590 F.2d 53, 54 (2d Cir. 1978); Oliveras v. Am. Exp. Isbrandtsen Lines, Inc., 431
F.2d 814, 817 (2d Cir. 1970). By contrast,
where there is evidence to support each element of a claim, there is no manifest injustice
when a court declines to entertain a sufficiency of the evidence argument on that
claim. See, e.g., Lore v. City of Syracuse, 670
F.3d 127, 154 (2d Cir. 2012); Cordius Trust
v. Kummerfeld, 331 F. App’x 810, 811 (2d
Cir. 2009); Kirsch, 148 F.3d at 164; Reichman v. Bonsignore, Brignati & Mazzotta
P.C., 818 F.2d 278, 281 (2d Cir. 1987).
B. Manifest Injustice
Where, as here, a defendant fails to satisfy the specificity requirement, “JMOL may
neither be granted by the district court nor upheld on appeal unless that result is required to
prevent manifest injustice.” Galdieri-Ambrosini, 136 F.3d at 287 (quoting Cruz, 34
F.3d at 1155). Whether to grant JMOL on
the basis of a waived argument to prevent a
manifest injustice is left to the court’s discretion. See Flannigan v. Vulcan Power Grp.,
LLC, 642 F. App’x 46, 51 (2d Cir. 2016)
(“[W]e may exercise our discretion to consider the [waived] issue if necessary to prevent manifest injustice.” (citations omitted));
Malmsteen v. Berdon, LLP, 369 F. App’x
248, 249 (2d Cir. 2010) (“The forfeited issue
may be reached if to ignore it would result in
manifest injustice.” (emphasis added) (citing Fabri v. United Tech. Int’l, Inc., 387 F.3d
109, 119 (2d Cir. 2004))); Wat Bey v. City of
N.Y., No. 01 CIV. 09406 (AJN), 2013 WL
12082743, at *12 (S.D.N.Y. Sept. 4, 2013)
11
In addition, the Second Circuit has indicated that it “cannot find manifest injustice . . . where, had Defendants properly
raised [an] issue at trial, ‘it may be that Plaintiffs would have been able to present additional evidence’” on that issue. Rivera v. City
of N.Y., 594 F. App’x 2, 6 (2d Cir. 2014)
(quoting Kirsch, 148 F.3d at 165) (brackets
omitted). In Rivera, for example, the district
court found the evidence insufficient to support the jury’s punitive damages award even
though the defendant failed to make such an
argument prior to the verdict. Id. at 4–5. The
Second Circuit held that, because the defendant failed to challenge the sufficiency of the
evidence in its Rule 50(a) motion, “the district court was not permitted to reach the
question of the sufficiency of the evidence,
and the subsequent vacatur of the punitive
damages award was an abuse of discretion.”
Id. at 6. It expressly rejected the defendant’s
claim that vacatur of the award was necessary
to prevent manifest injustice. Id.; see also In
re Johns-Manville Corp., 759 F.3d 206, 219
(2d Cir. 2014) (consideration of arguments
raised for the first time on appeal is disfavored “where those arguments were available
to the parties below and they proffer no reason for their failure to raise the arguments below” (quoting In re Nortel Networks Corp.
Sec. Litig., 539 F.3d 129, 133 (2d Cir. 2008)
(brackets omitted))); Corsair Special Situations Fund, L.P. v. Nat’l Res., 595 F. App’x
40, 44 (2d Cir. 2014) (“[A] judgment in a
civil case does not constitute ‘manifest injustice’ where the movant’s arguments for relief
‘were available to the [party] below and [the
party] proffer[s] no reason for [its] failure to
raise the arguments.’” (quoting Johns–Manville Corp., 759 at 219) (alterations in original)).
9
the judgment be vacated for insufficiency of the evidence, the court should normally grant a new trial.”).
The Court declines to exercise its discretion to grant defendants’ Rule 50 motion on
the basis of their waived arguments. 9 First,
with respect to their governmental immunity
argument, the Court finds that, as with their
earlier statute of limitations argument, their
immunity defense raises a factual question
that defendants should have submitted to the
jury. In any event, plaintiff presented evidence suggesting bad faith by defendants in
conducting the investigation, and the jury, by
virtue of its finding of malice as to the defendants with respect to the award of punitive
damages, essentially found that such bad
faith existed. See Rodrigues v. City of N.Y.,
602 N.Y.S.2d 337, 341–43 (N.Y. App. Div.
1993) (indicating that governmental immunity does not apply where government agents
acted in bad faith). Construing the evidence
at trial most favorably to plaintiff, there is no
basis to disturb that finding or to find that a
“manifest injustice” exists with respect to the
governmental immunity issue. Second, with
respect to the various elements of a tortious
interference claim, the Court disagrees with
defendants’ contention that the verdict is
“wholly without legal support.” Russo, 672
F.2d at 1022. Plaintiff presented evidence
pertaining to each and every one of the elements of a tortious interference claim. 10 To
the extent that defendants make a post-trial
attempt to raise specific defects with respect
As an initial matter, the Court notes that defendants
argue that the “manifest injustice” standard warrants
granting JMOL in their favor. Even in instances where
manifest injustice has been found, however, the remedy is not JMOL, but rather a new trial during which
plaintiff would have an opportunity to cure the defects
that were not properly raised. See, e.g., Baskin, 807
F.2d at 1134 (“Thus, if the party moving for judgment
n.o.v. has not moved for a directed verdict, and if the
court is nevertheless satisfied that justice requires that
10
Although this Court initially ruled that pre-June 1,
2005 evidence regarding the tortious interference of
contract claim was barred by the statute of limitations,
the Second Circuit reversed that finding and, thus, the
Court can analyze that evidence in determining the
sufficiency of the evidence on the question of manifest
injustice.
12
to certain proof, this Court “cannot find manifest injustice” because defendants could
have “properly raised [these] issue[s] at
trial,” and, had they done so, plaintiff “would
have been able to present additional evidence,” or make other applications to the
court, to address the alleged defects in proof.
Rivera, 594 F. App’x at 6 (quoting Kirsch,
148 F.3d at 165). Under these circumstances,
no manifest injustice will result from the
Court’s refusal to grant JMOL on the basis of
the waived arguments and, therefore, defendants’ Rule 50(b) motion is denied.
therefore, argue that they are immune from
plaintiff’s tortious interference claim because
all their actions were conducted pursuant to a
lawful investigation. (See id. at 24–25.)
As this Court made clear in its Summary
Judgment Order, however, “there are situations where, when performing an investigation outside the auspices of the grand jury,
prosecutors would not be entitled to absolute
immunity.” (Summary Judgment Order at 40
(citing Rodrigues, 602 N.Y.S.2d at 341–43;
Hirschfeld v. City of N.Y., 686 N.Y.S.2d 367,
370 (N.Y. App. Div. 1999)).) Specifically,
“[w]hen a Grand Jury or a court is not intended to be convened, the prosecutor is not
exercising a prosecutorial function,” and
therefore is not entitled to governmental immunity. (Id. (quoting Moore v. Dormin, 676
N.Y.S.2d 90, 94 (N.Y. App. Div. 1998)
(Tom, J., concurring)).) In Rodrigues, for instance, the District Attorney’s office issued
numerous grand jury subpoenas to customers, suppliers, and business contacts of the
plaintiff’s company in connection with an investigation into his financial affairs even
though no grand jury had been convened.
602 N.Y.S.2d at 339. Plaintiffs brought an
abuse of process claim based on this conduct,
alleging that the prosecutors “engaged in an
extortion scheme to harass and destroy
them.” Id. at 340. The Appellate Division
held that the prosecutors were not entitled to
absolute immunity because New York law
“confers no power upon the District Attorney
to employ a subpoena for the purpose of conducting his own investigation.” Id. at 342.
Where “an official is acting in knowing violation of law,” the court continued, “he
should be made to hesitate.” Id. at 343.
1. Governmental Immunity
The Second Circuit has indicated that a
manifest injustice will not result from a
court’s refusal to entertain an immunity argument where the evidence is sufficient to
prove that immunity does not apply. Specifically, in Provost, after concluding that a defendant had waived his qualified immunity
argument by failing to raise it in his Rule
50(a) motion, the Second Circuit held that it
did not need to grant the Rule 50(b) motion
to prevent a manifest injustice. 262 F.3d at
162. To justify this holding, the Court reasoned that “the evidence would have reasonably supported a finding that [the defendant]
acted abusively without even a belief that the
arrest was justified.” Id. Therefore, it was
“doubtful that [the defendant] was entitled to
qualified immunity as a matter of law.” Id.
Echoing their argument from summary
judgment, defendants claim that, under New
York law, an officer is entitled to absolute
immunity for the consequences of his discretionary actions “even if resulting from negligence or malice.” (Defs.’ Suppl. Mem. Law
Supp. Rule 50 Mot., ECF No. 703 (“Defs.’
Suppl. Br.”), at 22 (quoting Tango v. Tulevech, 61 N.Y.2d 34, 40 (N.Y. 1983)). 11 They,
Under Rodrigues, moreover, governmental immunity presents a mixed question of
11
Defendants also argue that there is insufficient evidence to support a finding of “bad faith,” as required
to overcome qualified immunity. (Defs.’ Suppl. Br. at
24 n.13 (quoting Arteaga v. State of New York, 72
N.Y.2d 212, 216 (N.Y. 1988)).)
13
during the limitations period because findings of fact “were essential to [the] affirmative defense, [and] the defendants were not
entitled to have the district court decide these
facts in the first instance.” Id.
law and fact, as the plaintiff’s factual allegation that the prosecutors issued the subpoenas
in bad faith was enough to defeat the defendant’s immunity argument at the motion to dismiss stage. See id. at 340, 342–43; see also
Jones v. Parmley, 465 F.3d 46, 64 (2d Cir.
2006) (“Clearly, without a factual resolution
of the sharply conflicting versions of these
events, it is not possible to determine whether
defendants are qualifiedly immune.” (quoting
Simpkin v. City of Troy, 638 N.Y.S.2d 231,
232 (N.Y. App. Div. 1996))). Thus, in the instant case, it was for the jury to decide
whether defendants ever intended to convene
a grand jury or whether they were conducting
their “own investigation” in bad faith. See
Rodrigues, 602 N.Y.S.2d at 342–43. The
burden of proof was on the defendant to
prove entitlement to governmental immunity.
See Villar v. Howard, 28 N.Y.3d 74, 80–81
(N.Y. 2016) (“[D]efendant’s argument that
he is entitled to governmental immunity . . .
[is] an affirmative defense on which he bears
the burden of proof.” (citing Valdez v. City of
New York, 18 N.Y.3d 69, 79–80 (N.Y.
2011))); see also Lore, 670 F.3d at 149 (“[A]
defendant has the burden of proof with respect to affirmative defenses, and qualified
immunity is such a defense.” (citing, inter
alia, Jules Rabin Associates, Inc. v. Landon, 38 N.Y.2d 827, 828 (N.Y. 1976) (characterizing state law qualified immunity as
“an affirmative defense”))).
The same is true here. As noted above, to
establish their entitlement to state law governmental immunity under Rodrigues, defendants needed to prove that their actions
were pursuant to a legitimate investigation,
rather than their “own investigation.” 602
N.Y.S.2d at 342. They also needed to prove
that the investigation was not conducted in
bad faith to establish state law qualified immunity. See Arteaga, 72 N.Y.2d at 216.
Therefore, it was incumbent on defendants to
“to request that the jury be asked the pertinent
question.” Zellner v. Summerlin, 494 F.3d
344, 368 (2d Cir. 2007); see also Conte I, 596
F. App’x at 6.
It is true that, with respect to the proposed
verdict sheet, defendants included one question that appears to relate to the issue of immunity, and a corresponding proposed instruction. (See Defs.’ Verdict Sheet ¶ 15;
County Defs.’ Proposed Jury Instructions,
ECF No. 555, at 15.) They did not, however,
object to the Court’s Proposed Verdict Sheet
(ECF No. 575), a general verdict sheet that
contained no such question. (See Tr. at 922,
925–26 (no objection to Court’s instructions
or the proposed verdict sheet based on absence of immunity language on tortious interference claim during charge conference).)
Because they did not object to this more general verdict form, they are “not entitled to
have the district court decide . . . facts in the
first instance” to resolve their affirmative defense of state law governmental and qualified
immunity. Conte I, 596 F. App’x at 6; see
also Jarvis v. Ford Motor Co., 283 F.3d 33,
57 (2d Cir. 2002) (“We have previously emphasized that ‘[f]ailure to object to a jury instruction or the form of an interrogatory prior
to the jury retiring results in a waiver of that
As the Second Circuit made clear in
Conte I, moreover, “to the extent that a particular finding of fact [is] essential to an affirmative defense, the defendant must . . . request that the jury be asked the pertinent
question. If the movant fails to request a special interrogatory, he is not entitled to have
the court, in lieu of the jury, make the needed
factual finding.” 596 F. App’x at 6 (brackets
and citations omitted). Thus, it vacated this
Court’s initial ruling on the statute of limitations issue even though this Court found no
evidence that the plaintiff’s injuries occurred
14
objection. . . . Surely litigants do not get another opportunity to assign as error an allegedly incorrect charge simply because the
jury’s verdict comports with the trial court’s
instructions.’” (quoting Lavoie v. Pac. Press
& Shear Co., a Div. of Canron Corp., 975
F.2d 48, 55 (2d Cir. 1992))); Clarex Ltd. v.
Natixis Sec. Americas LLC, No. 1:12-CV7908-GHW, 2014 WL 4276481, at *10
(S.D.N.Y. Aug. 29, 2014) (“[A] party ‘may
[not] rely on her submission of proposed jury
instructions’ which were not adopted by the
district court to preserve an objection for appeal.” (quoting Caruso v. Forslund, 47 F.3d
27, 31 (2d Cir. 1995))); Gray v. Genlyte Grp.,
Inc., 289 F.3d 128, 134 (1st Cir. 2002)
(“[E]ven if the initial request is made in detail, the party who seeks but did not get the
instruction must object again after the instructions are given but before the jury retires
for deliberations.”).
get me.” (Id.) In addition, Paul Hoppe, who
became a route distributor for I Media in October 2004, testified to a conversation with
Falzarano where he “felt threatened” and
“thought [he] was going to be subject to arrest
if [he] continued to deliver the magazine or
even speak to Mr. Conte.” (Id. at 210.)
Moreover, defendant Wallace testified that
he spoke to attorney Joseph Giaimo about a
civil class action being filed against Conte,
Giaimo sent a copy of the complaint to Wallace in September 2006, and the phrase
“Ponzi scheme” may have come up during
their conversation. 12 (Id. at 573–75, 603; Ex.
162.)
In short, plaintiff’s presentation of evidence was focused on showing that defendants were conducting their “own investigation” in bad faith to “harass and destroy”
plaintiff’s business, rather than to legitimately investigate an alleged crime. Rodrigues, 602 N.Y.S.2d at 340, 342. The verdict and damages award, moreover, indicates
that, based upon the evidence presented, the
jury did not believe the investigation was legitimate. The jury was instructed that it could
impose punitive damages if it found “that the
acts or omissions of the defendant were done
maliciously or wantonly,” with “maliciously”
defined to mean “prompted by ill will or spite
toward the injured person.” (Tr. at 1345; see
also id. at 1350 (applying same definition to
tortious interference claim).) The verdict
awarding punitive damages on the tortious
interference claim, then, can reasonably be
read as a factual finding by the jury that defendants’ actions were “prompted by ill will
or spite” toward the plaintiff. (Id. at 1345,
1350.) Construing the evidence most favorably to plaintiff, a rational jury could have
found in plaintiff’s favor on this issue and
there is no basis to disturb the verdict on this
In any event, plaintiff presented evidence
to the jury to show that the conduct forming
the basis of his tortious interference with contract claim occurred in the course of defendants’ “own investigation” and in bad faith, rather than within the scope of a legitimate
grand jury investigation. Rodrigues, 602
N.Y.S.2d at 342. As a threshold matter, defendants Emmons and Wallace testified that
no evidence was ever presented to a grand
jury. (Tr. at 392–93 (Emmons admitting that
“no evidence was presented to the grand
jury”); id. at 550 (Wallace responding “No”
when asked if he “ever present[ed] the case
to a grand jury”).) As discussed in more detail below, plaintiff recounted an instance
where, when defendant Falzarano served him
a subpoena, Falzarano “grabbed my hand and
started squeezing it in a crushing manner.”
(Id. at 155.) At this point, plaintiff testified
that Falzarano “told me that he was going to
12
Although that conversation took place after Conte
testified that his business had ceased operation, the ev-
idence could still be relevant on the issue of the motivation of the defendants in connection with the investigation.
15
“there is no need for additional fact-finding”), and, in any event, the motion would
fail on the merits.
ground. Thus, on the governmental immunity issue, the jury verdict is not “wholly without legal support,” and no manifest injustice
results from this Court’s refusal to consider
that argument on the merits. Patsy’s, 658
F.3d at 271; see also Provost, 262 F.3d at
162.
2. Sufficiency of the Evidence
Defendants next argue that, even assuming they did not properly preserve their sufficiency of the evidence arguments, the Court
should grant their motion to prevent manifest
injustice. Under New York law, to establish
a tortious interference with contact claim, a
plaintiff must prove (1) the existence of a
valid contract, (2) the defendants’ knowledge
of the contract’s existence, (3) that the defendant intentionally procured a breach of the
contract, and (4) that it resulted in damages to
the plaintiff. See Int’l Minerals & Res., S.A.
v. Pappas, 96 F.3d 586, 595 (2d Cir.
1996); Lama Holding Co. v. Smith Barney
Inc., 88 N.Y.2d 413, 424 (N.Y. 1996). Defendants now argue that plaintiff failed to
present sufficient evidence to prove these elements, specifically (1) the existence of a
valid contract, (2) conduct amounting to tortious interference, (3) a breach or causation
thereof, and (4) damages. To the extent they
argue that the jury’s findings with respect to
these elements were wholly without support
in the record, the Court disagrees. Moreover,
with respect to the purported deficiencies that
are the focus of defendants’ post-trial motion,
plaintiff could have sought to address them,
if they had been specifically raised at the
close of the plaintiff’s case, with additional
evidence or with legal applications to the
Court. Thus, no manifest injustice will result
if this Court refuses to grant JMOL on the basis of those deficiencies.
In addition, had defendants specifically
alerted plaintiff to their state law immunity
arguments in their Rule 50(a) motion, “it may
be that [plaintiff] would have been able to
present additional evidence” on that issue.
Rivera, 594 F. App’x at 6. For example, in
his supplemental submission to this Court,
plaintiff attaches a declaration from attorney
Joseph Giaimo, who represented a number of
the route distributors in the class action
against Conte and sought information from
defendant Wallace before filing the class action. In the declaration, Giaimo states, inter
alia, that Wallace told him that, with respect
to the criminal investigation of Mr. Conte and
I Media, “that evidence was being presented
to a grand jury” (Pl.’s Mem. Law in Opp’n to
Defs.’ Suppl. Mem. Law and Rule 50(b) Mot.
(“Pl.’s Suppl. Br.”), Ex. A (“Giaimo Decl.”),
ECF No. 709, at ¶ 4), which would have contradicted Wallace’s trial testimony that no evidence was presented to the grand jury (Tr.
550). Thus, if defendants had specifically
raised the governmental immunity argument
at the close of plaintiff’s case, Conte could
have sought to re-open his case to call Giaimo
or present additional evidence on the “bad
faith” issue (such as the testimony of other
route distributors contacted by Falzarano or
Wallace) to attempt to overcome that motion.
In sum, this Court “cannot find manifest
injustice” on the grounds of defendants’
waived governmental immunity argument.
Rivera, 594 F. App’x at 6; see also Welch,
871 F. Supp. 2d at 178 (reviewing waived
Rule 50(b) argument is appropriate where
Conte’s theory of the case was that the defendants maliciously interfered with his contractual relationships with printers, route distributors, and advertisers to destroy his business by making false and baseless allegations
that he was engaged in a fraudulent scheme,
16
and such interference resulted in the termination of contracts with him and the destruction
of his business. In connection with that theory of the case, as summarized below, Conte
submitted evidence on each of the essential
elements of a tortious interference claim.
they paid (id. at 169, 194–95). Conte also introduced into evidence (without objection),
the documentation that formed the basis of
that summary chart. (Pl.’s Ex. 200; 196–97.)
In addition, Conte submitted the following
documents: (1) a standard home distributor
agreement (Pl.’s Ex. 28); (2) documents from
Quebecor (Pl.’s Ex. 51); and (3) a copy of a
printer’s agreement with Transcontinental
Printers in December 2004 (Pl.’s Ex. 109; Tr.
at 147).
With respect to the formation and termination of contracts, Conte testified to the following facts, among others: (1) he had signed
20–30 route distributor contracts in May/June
2003 (Tr. at 70), which increased to about
30–40 route distributor contracts by October
2003 (id. at 114); (2) when allegations of
fraud surfaced in 2003, his business was substantially disrupted by termination of contracts by a number of route distributors (id.);
(3) after obtaining a printing contract with
Quebecor in January 2014 (id. at 128–29,
775–76; Pl.’s Ex. 51), he was able to execute
contracts with 15–20 new distributors (Tr. at
115–16; 192–95); (4) Quebecor suddenly
stopped dealing with him in 2004 (id. at 129–
30), and he began having problems with route
distributors terminating the agreements with
him because they believed I Media was a
scam (id. 138); (5) by about April 2004, only
6–8 distributors, out of the 40–50 with whom
he had agreements, were still willing to do
business with him (id.); (6) he proceeded to
rebuild his business in fall 2004 (id. at 143–
44); (7) Transcontinental Printing entered
into an agreement in December 2004 with I
Media, but then refused to do business with it
(id. at 147–48; Pl.’s Ex. 109); (8) in spring
2005, route distributors were telling Conte
that he is a fraud (Tr. at 197–98); and (9) by
June 2005, I Media was “pretty much dead in
the water” (id. at 203). In terms of evidentiary support of his testimony, Conte submitted into evidence (without objection) a summary chart (Pl.’s Ex. 104), which he testified
contained a list of 72 route distributors with
whom he had agreements and the amounts
With respect to conduct amounting to interference with his contracts by the Nassau
County District Attorney’s Office, Conte presented the following evidence: (1) evidence
regarding 21 letters that were sent by the District Attorney’s Office to route distributors in
February 2004 (Tr. at 139–40; Pl.’s Ex. 5);
(2) a letter from the Nassau County District
Attorney’s Office to Quebecor on April 27,
2004 (Tr. at 142–43; Pl.’s Ex. 86); and (3) a
March 2005 document from William Wallace
indicating a list of 28 victims as of October
13, 2004, and monetary amounts after their
names (Tr. at 162–63; Pl.’s Ex. 151). 13 Conte
also testified that, when Investigator Falzarano was serving a subpoena on Conte in
April 2005, he squeezed Conte’s hand “in a
crushing manner” and told Conte he was “going to get [him].” (Tr. at 155.)
Conte also called Paul Hoppe, who became a route distributor for I Media in October 2004. (Id. at 206). Hoppe testified that
defendant Falzarano contacted him in February 2005 and said that he was investigating I
Media and Conte, “that the business was
fraudulently run, [and] that Anthony Conte
was a scam artist.” (Id. at 209–10.) Hoppe
further testified that Falzarano made a joking
statement that, the next time Hoppe would
see Conte, he, Conte, would be in handcuffs.
(Id. at 210.) Moreover, Falzarano told Hoppe
13
At trial, this list was mistakenly identified as Plaintiff’s Exhibit 50, but a review of the record revealed
that it was actually marked and entered as Exhibit
151.
17
were conducting an investigation of these allegations” (Tr. at 546–47); (7) Wallace spoke
to Stuart Hubbard of Transcontinental in May
2004 regarding I Media and Conte (id. at 550;
Pl.’s Ex. 129); (8) Transcontinental cancelled
the printing job with I Media in December
2004, stating it did not have “press time” (Tr.
at 555); (9) Wallace sent a list of 28 victims
to Conte’s attorney in March 2005 (Tr. 562–
63; Pl.’s Ex. 151); (10) Wallace spoke to attorney Giaimo about a civil class action being
filed against Conte, Giaimo sent a copy of the
complaint to Wallace in September 2006, and
the phrase “Ponzi scheme” may have come
up during the conversation (Tr. at 573–75,
603; Pl.’s Ex. 162); (11) the main claim in
that lawsuit was that the defendant Conte
“created a pyramid scheme by utilizing legally dissolved nonexisting corporations”
(Tr. at 865; see also Pl.’s Ex. 162); and (12)
Wallace knew that Investigator Falzarano
had spoken to Mr. Hoppe (Tr. at 577).
that, if he spoke to Conte about their conversation, “it would be hindering a prosecution
or investigation, and that [Hoppe] could be
subject to arrest.” (Id.) Hoppe testified that,
as a result of that conversation, he “felt
threatened” and “thought [he] was going to
be subject to arrest if [he] continued to deliver
the magazine or even speak to Mr. Conte.”
(Id.) Hoppe also testified that Falzarano
asked for the names of other distributors, and
that Hoppe provided him with several names.
(Id. at 211.) Mr. Hoppe further stated that he
had conversations with other distributors
about these allegations by Falzarano. (Id. at
213.) Hoppe continued his relationship with
I Media until April 2005, when there were no
longer any magazines to deliver. (Id. at 223.)
With respect to the personal involvement
and knowledge of defendant Wallace, Conte
established through the testimony of Wallace
that: (1) he was assigned the Conte investigation in March 2004, and defendant Falzarano
assisted in the investigation (id. at 512–13);
(2) at some point, he became aware that defendant Wasilausky had sent out letters to the
route distributors requesting information
about I Media (id. at 534); (3) in or about
March or April 2004, Wallace contacted Gabriel Sauro of Quebecor, a printing company
in Canada, and told Sauro that his office was
conducting an investigation of I Media and
Conte and wanted information about their
business relationship (id. at 534–35; Pl.’s Ex.
86); (4) in particular, Wallace told Sauro
“that we were conducting an investigation
that had to do with numerous complaints we
had received alleging possible fraud with respect to the sale of distribution routes” (Tr. at
537); (5) Wallace knew that Conte was trying
to get Quebecor to print for his firm, I Media
(id. at 540, 546; Pl.’s Ex. 16); (6) Wallace indicated that, when he spoke to people in the
investigation, he did not indicate Conte was a
fraud, but rather “indicated to people that
there were allegations of fraud and that we
With respect to the personal involvement
and knowledge of defendant Emmons, Conte
established the following: (1) Emmons, as
Chief of the Frauds Bureau, had conversations with Falzarano and Wallace regarding
the investigation, and supervised the investigative efforts (id. at 361–63, 378–82); Emmons told Wallace to contact the printing
companies to determine if, in fact, any printing was being done by I Media (id. at 534–
35); (2) Emmons made other suggestions to
Wallace regarding investigative avenues to
pursue (id. at 589–91; Defs.’ Ex. 7); and (3)
Wallace sent a memo to Emmons in August
2006, advising that, “[t]he attempts by the accused to enter into the agreements with TV
listing companies and printers and the actual
productions, delivery of the magazine lend at
least some support to his position that TV
Time and I Media were a legitimate, ongoing
business and not a scam,” and recommending
the investigation be closed (Tr. at 422–23;
Pl.’s Ex. 36).
18
distress that he suffered from the alleged interference, including the allegations of fraud.
(See, e.g., id. at 1263 (“Because of this, I received many phone calls, harassing phone
calls, threatening phone calls, from route distributors who were angry and upset that I had
stolen money. I was treated like a leper by
my business associates, and friend[s] and
neighbors didn’t want to talk to me anymore
and to this day want nothing to do with me.”);
id. at 1264–65 (discussing severe anxiety and
depression from loss of his personal and business reputation); id. at 1266 (“The acts of the
defendants, that became published in the
newspapers and online. It destroyed my business reputation among my business associates, who will not talk to me.”); id. at 1268
(“[B]ecause of the tortious interference with
respect to the contract that took place, as I
stated, my business reputation was destroyed
both among my business associates as well as
my route distributors and iMedia’s vendors.
To this day, they refuse to do business with
me or return my calls.”).)
With respect to damages, Conte testified
that the alleged interference by defendants
with his printers caused him to have difficulties printing and disseminating TV Time
Magazine, and affected his business operations. For example, Conte testified that,
when Transcontinental ceased doing business
with him in late 2004, he was unable to print
three or four critical issues of the magazine
during the holiday season. (Tr. at 834–35.)
Nevertheless, he continued to publish into
April 2005. (Id. at 837–38.) In addition to
impacting his ability to obtain printers for his
publication, Conte also testified that the alleged rumors about his company being a
fraud crippled his ability to maintain or add
new route distributors. (Id. at 838.) Thus, he
testified that he was forced to effectively
cease operations by June 2005. (Id. at 203–
04.) In terms of quantifying the monies he
lost from the alleged interference, Conte testified he suffered losses “well over a million
dollars” in terms of money that he had invested into I Media. (Id. at 232.) Specifically, Conte noted that he had made over $1
million in revenues from the sale of route distributors and that all that money was put back
into I Media and lost when the company was
forced to shut down. (Id. at 842–43.) To document those losses, Conte submitted a summary chart which included, among other
things, a list of route distributors and the
monies obtained from each. (Id. at 859–62;
Pl.’s Exs. 164, 201.) During the damages
phase of the trial, Conte submitted additional
testimony and documents setting forth that he
had entered 154 contracts between October
2004 and May 2005, and that I Media received a total of $1,090,772.80 from those
contracts. (Tr. at 1255–57; Pl.’s Ex. 104.)
Conte testified that he lost all of that income,
which he devoted to create circulation for his
magazine, attract advertisers, and move the
business forward. (Tr. at 1257.) In addition,
Conte testified as to substantial emotional
Based upon the above-referenced evidence, as well as the other evidence adduced
at trial, assuming all credibility issues were
resolved in plaintiff’s favor and all reasonable inferences were drawn in his favor, see
Arlio, 474 F.3d at 5, it is clear that there is no
basis to conclude, as is required under the
manifest injustice standard, that there is no
legal support for plaintiff’s claim, see
Patsy’s, 658 F.3d at 271; Russo, 672 F.2d at
1022; Lore, 670 F.3d at 154; Cordius Trust,
331 F. App’x at 811; Kirsch, 148 F.3d at 164;
Reichman, 818 F.2d at 281.
Moreover, as noted above, the Second
Circuit has made clear that a court “cannot
find manifest injustice . . . where, had Defendants properly raised [an] issue at trial, it
may be that Plaintiffs would have been able
to present additional evidence” on that issue.
Rivera, 594 F. App’x at 6 (quoting Kirsch,
148 F.3d at 165) (brackets omitted). This rule
19
50.08 at 2359)); Waters v. Young, 100 F.3d
1437, 1441 (9th Cir. 1996) (“‘In no event,
however, should the court enter judgment
against a party who has not been apprised of
the materiality of the dispositive fact and
been afforded an opportunity to present any
available evidence bearing on that fact.’”
(quoting Fed. R. Civ. P. 50 Advisory Committee’s Note to 1991 Amendment)); Villara
v. City of Yonkers Police Dep’t, No. 95 CIV.
10654 (JSR), 1997 WL 399660, at *1
(S.D.N.Y. July 15, 1997) (“[B]asic principles
of judicial economy require a party to raise
issues of this kind in a Rule 50(a) motion, before a case is submitted to the jury, so that a
Court has the opportunity to correct any material oversights at that time.”).
also proves dispositive on defendants’
waived sufficiency of the evidence arguments. Indeed, this case demonstrates why
the Second Circuit has embraced this approach. Defendants could have raised all of
their sufficiency of the evidence arguments
before the case was submitted to the jury, but
they failed to do so, and now they “proffer no
reason for [this] failure.” Johns-Manville,
759 F.3d at 219 (quoting Nortel Networks, 539 F.3d at 133 (brackets omitted)).
Had defendants alerted plaintiff to these arguments, he “would have been able to present
additional evidence” on the issues they now
raise, Rivera, 594 F. App’x at 6, or taken
other legal steps that could have “cure[d] the
defects in proof” that defendants belatedly
identify, Galdieri-Ambrosini, 136 F.3d at
286. As the Second Circuit has emphasized,
Although defendants now raise several
post-trial deficiencies to plaintiff’s proof,
none of those purported deficiencies were
necessarily fatal and could have been addressed by plaintiff if they had been timely
and specifically raised by defendants under
Rule 50 at the trial. Indeed, several of plaintiff’s responses to defendants’ new arguments in his opposition to their Rule 50(b)
motion raise factual issues that the jury could
have resolved. See Conte I, 596 F. App’x at
6 (holding that “defendants were not entitled
to have the district court decide these facts in
the first instance”); Bennett v. Britton, 609 F.
App’x 11, 13 (2d Cir. 2015) (“[T]he district
court’s justification for granting judgment as
a matter of law—holding Bennett to his testimony and making a factual finding that it was
inaccurate—was
erroneous. Factual findings, such as where and how an injury occurred, are for juries.”); see also Zellner, 494
F.3d at 368; Kerman v. City of N.Y., 374 F.3d
93, 120 (2d Cir. 2004).
We have previously stated that the
specificity requirement is obligatory
and that its purpose is to ensure that
the other party is made aware of any
deficiencies in proof that may have
been overlooked. Requiring a party
to state specific grounds for its Rule
50(a) motion puts a party on notice of
potential deficiencies in its proof before the case is submitted to the jury.
Holmes v. United States, 85 F.3d 956, 962 (2d
Cir. 1996) (citations and brackets omitted);
see also Oliveras, 431 F.2d at 816 (“‘At the
time that a motion for a directed verdict is
permitted, it remains possible for the party
against who the motion is directed to cure the
defects in proof that might otherwise preclude him from taking the case to the jury. A
motion for judgment n.o.v., without prior notice of alleged deficiencies of proof, comes
too late for the possibility of cure except by
way of a complete new trial. The requirement of the motion for directed verdict is thus
in keeping with the spirit of the rules to avoid
tactical victories at the expense of substantive
interests.’” (quoting 5 Moore, Fed. Practice,
First, defendants pointed out that the trial
evidence established that I Media had been
dissolved at the time the contracts at issue
were formed (see Tr. at 703 (plaintiff ac-
20
raised by defendants in a Rule 50 motion.15
First, it is well settled under New York law
that, if back taxes are paid by the company
and the company is re-instated, transactions
during the dissolution period may be retroactively validated and enforceable by the company. See, e.g., St. James Construction Corp.
v. Long, 253 A.D.2d 754, 755 (N.Y. App.
Div. 1998) (“[C]ourts have held that corporate transactions which occurred during a period of dissolution are retroactively validated
because the corporation’s status, and its corresponding powers, rights, duties, and obligations, have been reinstated nunc pro tunc.
The ability to sue is among those rights to
which a corporation with active status may
avail itself.” (citations omitted)); Lorisa Capital Corp. v. Gallo, 119 A.D.2d 99, 113 (N.Y.
App. Div. 1986) (“We note that should Lorisa
pay its back taxes as it offered to do in its papers at Special Term, and, thus, be reinstated
to de jure status nunc pro tunc, its contract
entered into during the period of delinquency
would be retroactively validated.”); see also
S&J Mechanical Corp. v. IDI Construction
Co., 15 Misc. 3d 1106(A), at *2–3 (N.Y. Sup.
knowledging that his company had been dissolved in December 2003), and dissolved
corporations cannot enter into valid contracts
under New York law, see Moran Enters., Inc.
v. Hurst, 66 A.D.3d 972, 975 (N.Y. App. Div.
2009) (citing N.Y. Bus. Corp. Law
§ 1005(a)(1)). Indeed, in a footnote, this
Court agreed with defendants on this point in
its July 2013 Order, although the Court did
not consider the waiver issue that is presented
by the pending motion papers. (See July
2013 Order at 29 n.36.) As a threshold matter, Conte contests that the company was dissolved in accordance with proper procedure
under New York State law and requests an
evidentiary hearing on that issue. In particular, plaintiff contends that the dissolution
proclamation was invalid under New York
law because the Secretary of State failed to
timely publish it. (Pl.’s Suppl. Br. at 45–
46). 14
In any event, even assuming arguendo
that the dissolution was proper, Conte could
have addressed this issue in two different
ways during the trial if it had been properly
14
Under New York Tax Law Section 203-a, the tax
commission may send a list to the Department of State
identifying any corporations that are delinquent in
their taxes. N.Y. Tax Law § 203-a(1). Upon receiving
the notification,
judgment motion, which was procedurally improper.
Moreover, although defendants’ counsel elicited testimony regarding the dissolution and made arguments
to the jury regarding that issue in summation, it was in
the context of questioning Conte’s credibility, not
making any legal argument regarding the impact of
dissolution on the validity of the contracts. (See, e.g.,
Tr. 701–13; 1000–04; see also id. at 1078 (during summation of defendants’ counsel, noting, “Now, Mr.
Conte acknowledges there is no such thing as iMedia
Corporation after December of 2003. But we went on
into 2004, and we went on to 2005, and he still held
himself out to be the vice-president of iMedia Corporation. But wait. Mr. Conte offered an explanation.
He said those corporation attorneys, those attorneys
who incorporated my business never told me that the
corporation no longer existed.”).) In other words, the
suggestion was that Conte was involved in a scam because his company was dissolved. At no point during
the trial did defendants’ counsel make an argument to
the jury, or request an instruction, regarding the inability to enforce a contract for a dissolved company.
[t]he secretary of state shall make a proclamation under his hand and seal of office, as
to the corporations whose names are included
in such list as finally corrected, declaring
such corporations dissolved and their charters
forfeited pursuant to the provisions of this
section. He shall file the original proclamation in his office and shall publish a copy
thereof in the state bulletin no later than three
months following receipt of the list by him.
Id. § 203-a(3). It is only “[u]pon the publication of
such proclamation” that the corporation “shall be
deemed dissolved without further legal proceedings.”
Id. § 203-a(4).
15
Defendants raised the dissolution issue for the first
time in a motion for reconsideration on the summary
21
Ct. 2007) (giving plaintiff an opportunity to
pay back taxes and have company reinstated
in order to overcome affirmative defense that
contract had been entered when the company
was dissolved). Second, during the trial,
Conte could also have sought to amend his
pleadings to conform to the proof. In particular, Conte could have sought to amend to
modify his claim to tortious interference with
business relations, which would not have required proof of a valid contract. 16 See, e.g.,
Nifty Foods Corp. v. Great Atlantic & Pacific
Tea Co., 614 F.2d 832, 837–38 (2d Cir. 1980)
(considering tort claim for interference with
business relations where no interference with
contract claim existed because contract was
void); Catskill Development, L.L.C. v. Park
Place Entertainment Corp., 547 F.3d 115,
132–37 (2d Cir. 2008) (same); see also Polo
Fashions, Inc. v. Fashion Assocs., Inc., No.
82 Civ. 4870 (CBM), 1986 WL 1176, at *2
(S.D.N.Y. Jan. 22, 1986) (“Third-party plaintiffs are correct in their assertion that a contract need not exist in order for the tort of interference with prospective economic advantage to lie.”). Because these issues were
not properly raised under Rule 50 during the
trial by defendants, however, neither Conte
nor the Court had the ability to consider how
these issues could have been addressed by
plaintiff.
The same is true concerning defendants’
waived arguments that the evidence was insufficient to prove conduct amounting to tortious interference. (Pl.’s Suppl. Br. at 47–
48.) Specifically, plaintiff has submitted an
affidavit from Giaimo in which Giaimo asserts that the claims of fraud underlying his
lawsuit on behalf of the route distributors
originated in the Nassau County District Attorney’s Office and that he initiated the class
action lawsuit against plaintiff after speaking
with Wallace, which contradicts Wallace’s
testimony. 17 (Giaimo Declaration ¶¶ 3–5; see
also Tr. at 573–74 (Wallace testifying that he
“didn’t even know of Mr. Giaimo’s existence
until he had already filed his suit in civil
court”).) Had defendants alerted plaintiff to
their arguments, he could have called Giaimo
to establish the timing of his conversation
with Wallace, as well as the content of their
conversation. Giaimo could also have potentially shed light on whether any route distributors breached their contracts as a result of
16
The Court notes that plaintiff did seek to add such a
new claim during the trial. (Tr. at 786–90.) In the
Court’s view, however, that request was not directed
at addressing this purported defect as to the route distributors and printers that were the centerpiece of the
trial, but rather would open up the case to any potential
business relationship that Conte sought during his
company’s existence. Because the Court believed allowing a claim based upon new potential business relationships (such as with certain advertisers) would be
prejudicial, the Court denied the motion. (Id. at 882–
86.) If, however, it was made clear to the Court that
the amendment related only to the route distributors
and printers who had always been the core part of
plaintiff’s case, and was necessary to address this specific legal objection by defendants regarding the validity of the contracts in a Rule 50 motion, such an
amendment would have been warranted in the Court’s
discretion under Rule 15(b)(1). Such an amendment
would also have been able to address the defendants’
post-trial argument that there was no interference with
the route distributors because Conte received their
money, and no interference with certain printers because there was no actual contract. In other words,
Conte could have argued more generally that his ongoing business relationships with the printers and
route distributors were interfered with, and destroyed,
whether or not there was an actual breach of an existing contract.
17
This Court does not consider Giaimo’s affidavit on
the merits of the insufficiency of the evidence arguments. That is, in its discussion of defendants’ sufficiency of the evidence arguments above, the Court did
not take into account Giaimo’s post-trial statements.
Instead, the Court merely cites this affidavit as proof
that, had defendants raised their sufficiency of the evidence arguments at trial, plaintiff could have offered
specific evidence “to cure the defects in proof” that defendants now identify. Galdieri-Ambrosini, 136 F.3d
at 286.
22
conversations with the Nassau District Attorney’s Office. In particular, in his declaration,
Giaimo notes:
However, Hoppe testified that Falzarano
asked him for the names of other distributors,
which he provided. (Tr. at 211.) Hoppe also
had his own conversations with other distributors about this interaction. (Id. at 213.)
Moreover, Falzarano testified that, although
he could not remember the exact number, he
spoke to several route distributors. (Id. at
298–99.) If the jury believed Mr. Hoppe’s
testimony, it would not have been unreasonable for them to draw an inference from all
the evidence in this case that Falzarano had
similar conversations with many route distributors, and that Falzarano could reasonably foresee his allegations being shared
among many route distributors. In any event,
if plaintiff needed to show other conduct constituting tortious interference to overcome
this argument, plaintiff could have called the
printers, advertisers, and route distributors to
testify as to their conversations with defendants. Likewise, to show breach and causation, these witnesses could have testified as
to when and why they repudiated their contracts.
On July 5, 2005, I attended a meeting
at a restaurant on Long Island and met
a number of people, mostly I Media
route distributors, many of whom became plaintiffs in the Amorizzo case.
At that meeting I heard allegations of
fraud concerning Mr. Conte and I Media. Several participants said they
had spoken to members of the Nassau
County District Attorney’s Office
where they claimed those fraud allegations originated.
(Giaimo Declaration ¶ 3.) Although that testimony would have raised hearsay issues,
Conte could have used that testimony to identify other route distributors that could have
been called as additional witnesses to address
this alleged defect. Thus, at the very least,
Giaimo’s post-trial affidavit demonstrates
that plaintiff could have presented additional
evidence to dispute defendants’ waived arguments had they timely raised them.
Finally, with respect to damages, plaintiff
could have attempted to submit additional evidence on how the defendants’ interference
deprived him of the benefit of the contracts
with his route distributors and printers.
Moreover, some of the damages awarded by
the jury also could have related to emotional
distress damages, which are recoverable in
certain circumstances for a tortious interference claim under New York law. 18 See. Pappas, 96 F.3d at 597 (“With respect to damages, [o]ne who is liable to another for interference with a contract or prospective contractual relation is liable for damages for (a)
Similarly, with respect to the other
grounds for plaintiff’s tortious interference
claim, plaintiff might have presented additional evidence to correct the deficiencies the
defendants identify post-trial. For example,
defendants suggest that there was no evidence of conduct constituting interference
because, even if the interaction with Paul
Hoppe was attempted interference, there was
no evidence that Hoppe stopped dealing with
Conte, and this was the “single instance of a
route distributor, Hoppe, being approached
by Falzarano.” (Defs.’ Suppl. Br. at 19.)
18
The Court notes that, during the charge conference
on the damages instructions, no objection was made to
allowing the jury to consider emotional distress damages on the interference with contract claim. (Tr.
1219–38.) In fact, defendants’ brief regarding damages cites the relevant case authority. (ECF No. 584.)
To the extent defendants challenge the amount of damages as excessive or against the weight of the evidence,
that type of motion is available under Rule 59 of the
Federal Rules of Civil Procedure. Although defendants initially made such a motion, they subsequently
abandoned it.
23
the pecuniary loss of the benefits of 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
expected to result from the interference.” (citations omitted)); see also GS Plasticos Limitada v. Bureau Veritas, 37 Misc.3d 1228(A),
at *3 (N.Y. Sup. Ct. 2012) (“[T]hat GS seeks
consequential damages resulting from harm
to its reputation – as permitted in connection
with a claim for tortious interference with
contract – is insufficient to transform GS’s
tortious interference claim into a defamation
claim.” (citing Guard Life Corp. v. Parker
Hardware Mfg. Corp., 50 N.Y.2d 183, 197
(N.Y. 1980))).
in their Rule 50(a) motion, and (2) no manifest injustice will result if this Court declines
to grant them JMOL or a new trial on the basis of those arguments. Therefore, the Court
denies defendants’ Rule 50 motion in its entirety.
SO ORDERED.
______________________
JOSEPH F. BIANCO
United States District Judge
Dated: March 3, 2017
Central Islip, NY
In short, had defendants alerted plaintiff
to the defects in proof they now identify, he
may have been able to cure them. As noted,
moreover, the entire purpose of Rule 50(a)’s
specificity requirement “is to give the other
party an opportunity to cure the defects in
proof that might otherwise preclude him from
taking the case to the jury.” Galdieri-Ambrosini, 136 F.3d at 286 (quoting Baskin, 807
F.2d at 1134). Thus, in this case, to grant defendants’ Rule 50 motion or afford them a
new trial on the basis of the waived arguments, see Russo, 672 F.2d at 1022, would
undermine the purpose of Rule 50(a), see
Kirsch, 148 F.3d at 165; Rivera, 594 F. App’x
at 6; Galdieri-Ambrosini, 136 F.3d at 286.
As such, the Court “cannot find manifest injustice” here and therefore declines to exercise its discretion to grant the motion based
on the waived arguments. Rivera, 594 F.
App’x at 6 (quoting Kirsch, 148 F.3d at 165).
***
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, as well as Eliza Mae Scheibel
and Robert A. Spolzino of Wilson Elser Moskowitz Edelman & Dicker, LLP, 1133
Westchester Avenue, 3rd Floor, West Harrison, NY 10604.
IV. CONCLUSION
In sum, the Court concludes that (1) defendants waived their governmental immunity and insufficiency of the evidence arguments by failing to raise them with specificity
24
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