Restivo et al v. Nassau County et al

Filing 283

MEMORANDUM & ORDER granting 229 Motion to Amend/Correct/Supplement; Plaintiffs' motion to amend the Judgment (Docket Entry 229) is GRANTED. The Clerk of the Court is directed to amend the Judgment in this case to include: (1) post-verdict i nterest at a rate of nine percent per year, accruing from April 11, 2014, the date of the liability verdict in this case, until November 17, 2014, the date of entry of judgment; and (2) post-judgment interest computed pursuant to 28 U.S.C. § 1961, accruing from November 17, 2014 until the Judgment is paid. So Ordered by Judge Joanna Seybert on 9/30/2015. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------X
JOHN RESTIVO and DENNIS HALSTEAD,
ET AL.,
Plaintiffs,
MEMORANDUM & ORDER
06-CV-6720(JS)(SIL)

-againstNASSAU COUNTY, CAROLANN HESSEMAN,
AS EXECUTRIX FOR THE ESTATE OF
JOSEPH VOLPE, in his individual
capacity, and CHARLIE FRAAS, in
his individual capacity, ET AL.,

Defendants.
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APPEARANCES
For Plaintiffs:
Barry C. Scheck, Esq.
Alexandra Lynn Lampert, Esq.
Monica R. Shah, Esq.
Nick Joel Brustin, Esq.
Anna B. Hoffman, Esq.
Peter Jon Neufeld, Esq.
Neufeld Scheck & Brustin LLP
99 Hudson Street, 8th Floor
New York, New York 10013
Joshua Evan Dubin, Esq.
Joshua E. Dubin, Esq., P.A.
212 NE 16th Terrace
Fort Lauderdale, FL 33301
David Graff, Esq.
Rachael Ann Kierych, Esq.
Anderson Kill & Olick PC
1251 Avenue of The Americas
42nd Floor
New York, NY 10020
Leon Friedman, Esq.
148 E. 78th St.
New York, NY 10075

For Defendants:
Nassau County

Daniel A. Bartoldus, Esq.
Amy E. Bedell, Esq.
Annemarie Susan Jones, Esq.
Lewis Johs Avallone Aviles & Kaufman, LLP
One CA Plaza, Suite 225
Islandia, NY 11749
Liora M. Ben-Sorek, Esq.
Dennis J. Saffran, Esq.
Sondra Meryl Toscano, Esq.
Office of the Nassau County Attorney
One West Street
Mineola, New York 11501

Carolann Hessemann,
as executrix of
the Estate of
Joseph Volpe:
Peter J. Tomao, Esq.
Law Office of Peter J. Tomao
600 Old Country Rd, Suite 328
Garden City, NY 11530
Thomas J. McNamara, Esq.
Certilman, Balin, Adler & Hyman, LLP
90 Merrick Avenue
East Meadow, NY 11554
SEYBERT, District Judge:
Pending before the Court is Plaintiff John Restivo and
Dennis Halstead’s (“Plaintiffs”) unopposed motion to amend the
Judgment entered in this case to include interest.
229.)

(Docket Entry

As discussed below, Plaintiffs’ motion is GRANTED.
BACKGROUND
The

Court

assumes

familiarity

procedural history of this case.

with

the

facts

and

Briefly, this case was tried for

the second time in March and April 2014.

The case was bifurcated

and, on April 11, 2014, the jury found defendant former Nassau
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County

Homicide

Detective

Joseph

Volpe

(“Volpe”)

liable

to

Plaintiffs for (1) unconstitutionally depriving them of their
right to a fair trial, and (2) malicious prosecution. (See Verdict
Sheet, Docket Entry 198.)

Following the damages phase of the

trial, the jury awarded Plaintiffs $18 million each.
Volpe,

Nassau

County,

and

Charlie

Fraas

Defendants

(collectively

“Defendants”) moved for a new trial on June 16, 2014, (Docket Entry
215), and on November 12, 2014 the Court denied Defendants’ motion.
(Docket

Entry

225.)

Judgment

was

entered

against

Volpe

on

November 17, 2014, however, the Judgment did not provided for
interest on the $18 million awarded to each Plaintiff.
Plaintiffs

now

move

under

Federal

Rule

of

Civil

Procedure 59(e) and 60 to amend the Judgment to include both postverdict, and post-judgment interest.
229, at 2.)

(Pl.’s Br., Docket Entry

Defendants do not oppose Plaintiffs’ motion.
DISCUSSION

Plaintiffs contend that they should be awarded postjudgment interest pursuant to the rate set in 28 U.S.C. § 1961,
and post-verdict interest on their damages award at nine percent
per annum prejudgment interest pursuant to N.Y. C.P.L.R. § 5002.
(Pl.’s Br. at 2.) The Second Circuit recently clarified that postjudgment

interest

awarded

in

Federal

calculated pursuant to 28 U.S.C. § 1961.

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District

Court

must

be

Cappiello v. ICD Publ’n,

Inc., 720 F.3d 109, 113 (2d Cir. 2013) cert. denied, 134 S. Ct.
683, 187 L. Ed. 2d 550 (2013).
Prejudgment post-verdict interest is treated differently
however.

Under New York law, prejudgment post-verdict interest is

recoverable “in any action, from the date the verdict was rendered
or the report or decision was made to the date of entry of final
judgment.”

N.Y. C.P.L.R. 5002.1

When federal jurisdiction is

founded upon diversity of citizenship, it has been established
that

“state

law

governs

the

award

of

prejudgment

interest.”

Schipani v. McLeod, 541 F.3d 158, 164 (2d Cir. 2008). In addition,
courts

in

this

circuit

have

awarded

post-verdict

prejudgment

interest on pendant state law claims when jurisdiction is founded
upon a federal question jurisdiction.

Adrian v. Town of Yorktown,

620 F.3d 104, 107 (2d Cir. 2010) (applying the nine percent
prejudgment interest rate to a claim brought under New York state
law; “because prejudgment interest is a matter of substantive law,

Under New York law, prejudgment interest that accrues from the
time an action existed until the verdict is only available in
cases in which the plaintiff was denied a tangible property
interest and brought suit as a result. See N.Y. C.P.L.R
§ 5001(a) (specifying that prejudgment interest “shall be
recovered upon a sum awarded because of a breach of performance
of a contract, or because of an act or omission depriving or
otherwise interfering with title to, or possession or enjoyment
of, property . . .”); Rodick v. City of Schenectady, 856 F.
Supp. 105, 107 (N.D.N.Y. 1994) (refusing to award pre-judgment
interest following a jury verdict on a malicious prosecution
claim). Plaintiffs do not seek prejudgment interest from the
date Plaintiffs cause of action existed, only prejudgment postverdict interest.
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the New York interest rate applies to the interest sought”);
DiBella v. Hopkins, 285 F. Supp. 2d 394, 410 (S.D.N.Y. 2003) aff’d,
403 F.3d 102 (2d Cir. 2005).
Plaintiffs
interest.

are

entitled

Here, Defendants do not contest that

to

both

post-verdict

post-judgment

Therefore, Plaintiffs’ request is GRANTED.
CONCLUSION
Plaintiffs’ motion to amend the Judgment (Docket Entry

229) is GRANTED.

The Clerk of the Court is directed to amend the

Judgment in this case to include: (1) post-verdict interest at a
rate of nine percent per year, accruing from April 11, 2014, the
date of the liability verdict in this case, until November 17,
2014, the date of entry of judgment; and (2) post-judgment interest
computed pursuant to 28 U.S.C. § 1961, accruing from November 17,
2014 until the Judgment is paid.

SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
DATED:

September
30 , 2015
Central Islip, New York

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