Tretola et al v. County of Nassau et al

Filing 95

(AMENDED) MEMORANDUM AND OPINION. The Memorandum and Order dated February 19, 2014 has been amended solely to modify the caption "County of Nassau" instead of "County of Suffolk" as a defendant.. Ordered by Judge Denis R. Hurley on 4/16/2014. (Lundy, Lisa) (Main Document 95 replaced on 4/16/2014) (Fagan, Linda). Modified on 4/16/2014 (Fagan, Linda).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------X
MARTIN TRETOLA, MARBLES ENTERPRISES,
INC. d/b/a T&T GUNNERY,

AMENDED*
MEMORANDUM AND ORDER
08-CV-3225 (DRH)(WDW)

Plaintiffs,
-againstCOUNTY OF NASSAU, POLICE OFFICER
FALTINGS,
Defendants.
------------------------------------X
A P P E A R A N C E S:
For Plaintiffs:
Friedman, Harfenist, Kraut
& Perlstein LLP
3000 Marcus Avenue
Suite 2E1
Lake Success, New York 11042
By: Charles H. Horn, Esq.
Steven J. Harfenist, Esq.
For Defendants:
Nassau County Attorney's Office
One West Street
Mineola, New York 11501
By: Joseph Nocella, Esq.
Ralph J. Reissman, Esq.
HURLEY, Senior District Judge
Martin Tretola, Marbles Enterprises, Inc. d/b/a T&T
Gunnery, brought suit against the County of Nassau and "Police
Officer Faltings," alleging that he was falsely arrested for
reckless endangerment on June 1, 2007 and was thereafter
maliciously prosecuted for that purported offense.1

The case

* The caption of this opinion has been modified to name "County
of Nassau" instead of "County of Suffolk" as a defendant.
1

The amended complaint filed on December 2, 2011 contained a

was tried before a jury over a period of six days in August of
2012, at the conclusion of which the jury returned a verdict in
plaintiffs' favor for $5,000,000, consisting of $2,000,000 in
compensatory damages and $3,000,000 in punitive damages.
Presently before the Court is defendants' motion, made
pursuant to Fed. R. Civ. P. 50(b), seeking a vacatur of that
judgment in toto as a matter of law or, in the alternative, for
either a new trial pursuant to Rule 59 or a conditional order of
remittitur to reduce as excessive the compensatory and punitive
damage awards.

For the reasons set forth below, defendants' Rule

50(b) and Rule 59 motions are denied.

However, the application

for a conditional order of remittitur is granted.
BACKGROUND
Martin Tretola ("plaintiff" or "Tretola")2 is the owner
and operator of Marbles Enterprises, Inc. d/b/a T&T Gunnery ("T&T
Gunnery") which is in the business of selling and repairing
firearms.

It has two places of business, one being in Seaford

and the other in Garden City, both in Nassau County, New York.

number of additional claims asserted against both the County of
Nassau as well as the individual officer. However, for reasons
not presently germane, only the two above listed causes of action
were pursued by plaintiffs and submitted to the jury. Tr. at
218.
2

Although both Tretola and Marbles Enterprises, Inc. are
listed in the caption as plaintiffs, I will use the singular term
"plaintiff" henceforth throughout this decision referring to
Tretola for simplicity sake since he, as distinct from the
corporation, is the primary aggrieved party.
-2-

Given the nature of T&T Gunnery's business, its stores are
subject to unannounced inspections being conducted by, inter
alia, members of the Pistol Licensing Bureau of the Nassau County
Police Department.
I.

Tr. at 136.

Facts Pertaining to Tretola's Arrest for Reckless
Endangerment
"Police Officer Faltings," whose first name is Eric,

(hereinafter "Faltings"), is a Nassau County police officer,
assigned to the Pistol Licensing Bureau.

On May 9, 2007

Faltings, as well as representatives from (a) the Nassau County
Fire Marshal's Office, (b) the Federal Bureau of Alcohol Firearms
and Tobacco ("ATF"), (c) the Hempstead Building Department and
(d) the Nassau County Bomb Squad conducted a joint inspection of
T&T Gunnery's Seaford facility.

As a result of that inspection,

a number of summonses were issued including one by Fire Marshal
Szymanski charging Marbles Enterprises, Inc. with having
"Numerous Portable Fire Extinguishers Throughout the Premises
That Have not Been Serviced as Required."

(Defs.' Ex. A at 3.)

Marble Enterprises, Inc. pled guilty to a lesser included offense
in the Hempstead District Court of Nassau County on June 26,
2007.

(Defs.' Ex. B.)

The disposition of the other summons

issued on May 9th is unclear.
Principal among the observations made by Faltings on
May 9th was the location of what appeared to be a gas heater –
seemingly fueled by an active gas line – in close proximity and
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on the same wall as two "bullet traps"3 with surrounding
indentations evidencing "bullet strikes."

Tr. at 172.

Faltings

perceived that combination as "an extremely hazardous condition."
Id. at 170.

Based on that perception, considered in conjunction

with Tretola's acknowledgment that he used the bullet traps in
operating his business, id. at 179-81, Faltings believed he had
probable cause to arrest plaintiff for reckless endangerment in
the first degree in violation of New York Penal Law Section
120.25.4

For some unexplained reason, the arrest was not made on

the date of the inspection, i.e. May 9th, but rather three weeks
thereafter on June 1st.
In making the arrest, Faltings assumed that the gas
heater was operational.

Tr. at 178-79.

In fact, it was not.

It

had been disconnected from the outside gas meter more than a
decade earlier.

Tr. at 229.

That fact, however, was not

communicated verbally or otherwise to Faltings on or before May
9, 2007.
As to the period from the May 9th inspection to the
June 1st arrest, defendants state that "there was never any

3

As explained by Tretola, a bullet trap is "about 16
inches square" and is used primarily "to shoot shotgun[s] and . .
. handgun[s] into" it for test firing purposes. Tr. at 313-14.
4

New York Penal Law § 120.25 provides: "A person is guilty
of reckless endangerment in the first degree when, under
circumstances evincing a depraved indifference to human life, he
recklessly engages in conduct which creates a grave risk of death
to another person."
-4-

testimony at trial that Faltings was ever made aware [during that
time frame] that the gas line may have been inactive, if indeed
it was."

(Defs.' Mem. in Supp. at 12.)

However that statement,

although not controverted by plaintiff, is incorrect.
testified that when he was

Tretola

contacted while upstate by Faltings

after May 9th and told to return to Nassau County by June 1st so
that he could be arrested for reckless endangerment, plaintiff
stated, albeit cryptically and to no avail, that the contemplated
charge was bogus since "there is no gas in the pipe."
353-54.

Tr. at

Be that as it may, however, Faltings, based on his

observations of May 9th at T&T Gunnery, arranged for Tretola to
be arrested at the Seventh Precinct on that June 1st date absent
any effort on his part to determine the validity of Tretola's
assertion about the operational status of the heater.
The core of the background information thus far recited
is largely undisputed.

The same may not be said of the events

triggering the May 9, 2007 multiple agency inspections.
Defendants produced evidence suggesting that (1) law
enforcement's focus on T&T Gunnery started with Detective Loretta
Brennan's ("Brennan") inspection of the business's "second hand
dealers book" on April 10, 2007 during which she discovered
certain bookkeeping errors regarding two weapons that Tretola had
not "put into his long gun book" id. at 709; (2) since the "long
gun book is what pistol licensing checks," id., she provided

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"Officer Leahy" of the Pistol Licensing Bureau with "a copy of
the pages of the secondhand book where [she] found the two
purchases that weren't in the long gun book" id. at 710; (3)
Detective Kevin Haig ("Haig"), then "a supervisor in pistol
licensing" remembered Faltings receiving the materials from
Brennan, rather than Officer Leahy; in any event, Haig testified
that he, not Faltings, was primarily responsible for the May 9,
2007 inspections at T&T Gunnery.

Id. at 734-38.

Plaintiff's view of the evidence and corresponding
arguments to the jury painted a totally different picture with
Faltings orchestrating the May 9th "raid" with the overriding
purpose

being, pure and simple, to punish Tretola.

And "raid,"

construing the evidence most favorably to plaintiff, is an apt
term.

As explained by Hank Brehl ("Brehl"), Tretola's landlord,

the "whole street" upon which T&T Gunnery fronted was cordoned
off and "there were all sorts of agencies going into the store."
Tr. at 234.

The scene was one of "[c]haos" with "ATF", "DEC" and

"the building department" among the multiple agencies on hand.
Id. at 235.
news.

"[E]veryone," Brehl opined, "was following it on the

It was kind of a big happening."

Id. at 237.

Ample evidence is in the trial record to support
plaintiff's view, beginning with a heated verbal exchange between
Tretola and Faltings said to have occurred in "late 2006."
at 330.

Tr.

At that time, Faltings asked Tretola to condense the

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paperwork in a particular case by eliminating one step in the
process that Tretola believed was legally required for an out-ofstate permit holder to possess a weapon in New York State.
at 330-32.

Id.

Faltings felt that Tretola's position was unsound,

id. at 99, but rather than arguing the point further, he gave
Tretola "permission" to proceed absent the document which was the
subject of the dispute, a so-called "purchase document."
332.

Id. at

Tretola refused to do so unless furnished with written

authorization, which Faltings declined to provide.

In the end,

Tretola's understanding of the necessary procedure was
implemented by the out-of-state gun owner and the matter
seemingly concluded.

Id. at 99-100.

However, such was not the

case.
Afer Tretola spoke to Faltings, Faltings understood
that Tretola told a T&T Gunnery employee that Faltings, in
effect, did not know what he was talking about and was a "fucking
asshole."

Tr. at 103.

That employee inexplicably relayed

Tretola's assessment to Faltings.

Id.

Several months later, sometime in "February 2007,"
Tretola had occasion to be in the public area of the "pistol
licensing section" of the police department.

Id. at 183.

Faltings, upon spotting Tretola, called him into a different
section of the office, whereupon he pronounced "you will not
refer to me as a fucking asshole or anybody else in this office

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as a fucking asshole.
at 125-126.

Am I making myself perfectly clear?"

Id.

Such utterances and conduct, Faltings explained

would "not be tolerated."

Id. at 126.

Indeed, at trial,

Faltings characterized his February 7th conversation with Tretola
as an "admonish[ment]," much like he had given to "many other
licensees" previously.

Id. at 130.

Less than two months after Faltings took it upon
himself to scold Tretola, Officer Brennan checked T&T Gunnery's
records as previously explained.

Although she took no immediate

action herself in response to the irregularity encountered, she
relayed the information to the pistol licensing section.

That

event, plaintiff posits, was the catalyst that permitted Faltings
to severely punish Tretola for his temerity in (1) vociferously
refusing to consummate a gun transaction absent a required
purchase document and (2) in thereafter challenging the officer's
competence.
Faltings's conduct at T&T Gunnery on May 9, 2007 cannot
be written-off as all in a days work.

From the time he started

in pistol licensing in "January of 2001," Tr. at 82, through to
the time of his deposition in this case, to wit October 28, 2009,
Faltings had made only one arrest, that being the arrest of
Tretola on June 1, 2007.

Id. at 164-65.

He had, of course,

conducted a number of inventory inspections of licensed premises
over the years.

But in none of those did he ask members of ATF

-8-

or of the local building department to join him in a joint
inspection as he did here.

Id. at 150-52.

In fact, it appears

that the intensity and scope of May 9th inspections were
unprecedented in Faltings's experience as a member of the pistol
licensing section.
II.

Facts Pertaining to Tretola's Malicious Prosecution Claim
Who arranged for the May 9th inspections at T&T Gunnery

was disputed at trial.

The thrust of Haig's testimony was that

he, as a supervisor in the pistol licensing section, was
responsible.

However, there was abundant evidence as earlier

outlined, demonstrating that the May 9th inspections were
attributable, in least in significant part if not totally, to
Faltings.
It is undisputed that Faltings was the "arresting
officer" for, as he explained, he signed the June 1, 2012 felony
complaint and swore to its accuracy.
131.

Tr. at 164; see also Tr. at

Faltings also took it upon himself to direct Tretola to

return to Nassau County from upstate New York for purpose of
being arrested at 7:00 a.m. on June 1st at the Seventh Precinct.
Tr. at 353-54.
At this point and against the above background
information, attention will now be directed to the legal
standards governing the relief sought by defendants, followed by
statements of the parties' respective positions and the Court's

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analysis of those position.
DISCUSSION
I.

Legal Standards
A.

Motion for Judgment as a Matter of Law – Rule 50(b)
"The standard governing motions for judgment as a

matter of law [ ] pursuant to

Rule 50 [of the Federal Rules of

Civil Procedure], formerly denominated motions for directed
verdict or motions for judgment notwithstanding the verdict, is
well established."

Galdieri-Ambrosini v. Nat’l Realty & Dev.

Corp., 136 F.3d 276, 289 (2d Cir. 1998)(internal citation
omitted).

A Rule 50 motion "'may only be granted if there exists

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 the evidence in favor of the movant is
so overwhelming that reasonable and fair-minded [persons] could
not arrive at a verdict against [him].'"

Kinneary v. City of New

York, 601 F.3d 151, 155 (2d Cir. 2010)(alterations in
original)(quoting Brady v. Wal-Mart Stores, Inc., 531 F.3d 127,
133 (2d Cir. 2008)).

In considering the motion, "[a] court 'must

give deference to all credibility determinations and reasonable
inferences of the jury,' and may not weigh the credibility of
witnesses or otherwise consider the weight of the evidence."
Caruolo v. John Crane, Inc., 226 F.3d 46, 51 (2d Cir.
2000)(quoting Galdieri-Ambrosini, 136 F.3d at 289); see also
-10-

This is Me, Inc. v. Taylor, 157 F.3d 139, 142 (2d Cir. 1998)(The
issue on a Rule 50 motion is 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 [persons] could have
reached.'")(quoting Cruz v. Local Union No. 3, Int’l Bd. of Elec.
Workers, 34 F.3d 1148, 1154-55 (2d Cir. 1994)).
B.

Motion for a New Trial – Rule 59
A "motion for a new trial 'ordinarily should not be

granted unless the trial court is convinced that the jury has
reached a seriously erroneous result or that the verdict is a
miscarriage of justice.'"

Patrolmen’s Benevolent Ass’n of City

of New York v. City of New York, 310 F.3d 43, 54 (2d Cir. 2002)
(quoting Atkins v. New York City, 143 F.3d 100, 102 (2d Cir.
1998)).

"A new trial may be granted, therefore, when the jury’s

verdict is against the weight of the evidence."

DLC Mgmt. Corp.

v. Town of Hyde Park, 163 F.3d 124, 133 (2d Cir. 1998).

"Unlike

judgment as a matter of law, a new trial may be granted even if
there is substantial evidence supporting the jury’s verdict."
Id. at 134; accord Manley v. AmBase Corp., 337 F.3d 237, 244 (2d
Cir. 2003).

On a motion for a new trial pursuant to Rule 59, a

court may weigh the evidence and need not view the evidence in a
light most favorable to the party that prevailed at trial.

See

Song v. Ives Labs., Inc., 957 F.2d 1041, 1047 (2d Cir. 1992).

-11-

Indeed, "the district court is permitted to 'examine the evidence
through its own eyes.'"

Green v. City of New York, 359 Fed.

App'x 197, 199 (2d Cir. 2009) (summary order) (quoting Meloff v.
New York Life Ins. Co., 240 F.3d 138, 147 (2d Cir. 2001)).

"A

court considering a Rule 59 motion for a new trial must bear in
mind, however, that the court should only grant such a motion
when the jury’s verdict is egregious.

Accordingly, a court

should rarely disturb a jury’s evaluation of a witness’s
credibility."

DLC Mgmt., 163 F.3d at 134 (internal quotation

marks and citations omitted).
II.

Listing (With Analyses to be Provided, Infra)
of Parties' Arguments Regarding Jury's Liability
Determinations
A.

Defendants' Arguments as Movant
In seeking relief from the jury's liability finding,

defendants advance two alternative arguments with respect to the
false arrest claim: (1) Tretola's June 26, 2007 plea of guilty to
a lesser included offense under the Fire Code appearance ticket
issued to Marbles Enterprises, Inc. by Fire Marshal Szymanski on
May 9, 2007 provides probable cause for the reckless endangerment
arrest ("First Argument"), and (2) the bullet strikes on the wall
near what appeared to be a gas-fired heater and accompanying fuel
line also provided probable cause for that arrest ("Second
Argument").

Should the Court conclude otherwise, arguable

probable cause existed to arrest Tretola thereby, defendants

-12-

argue, insulating Faltings from personal liability under the
federal causes of action.
With respect to the malicious prosecution claim,
defendants contend "that the District Attorney's Office, not
Faltings, determined to prosecute, and continued to prosecute,
Tretola after the arrest on June 1, 2007."

(Defs.' Mem. at 17.)

B. Plaintiff's Arguments in Opposition
Plaintiff contests the substance of defendants' First
Argument regarding the false arrest claim on several disjunctive
grounds, including that the corporation Marbles Enterprises, Inc.
was the sole named defendant in People v. Marbles Enterprises,
Inc., and, accordingly, its plea to the charge does not represent
an admission by the plaintiff Tretola.

That ground, as discussed

infra, is dispositive of the issue thereby rendering plaintiff's
alternate arguments academic.
With respect to defendants' Second Argument directed at
plaintiff's false arrest claim, plaintiff contends that
defendants' probable cause argument concerning the reckless
endangerment arrest is flawed because (1) it fails to address the
elements of the crime charged including its mens rea requirement,
(2) absent from the record is evidence indicating that Tretola
discharged firearms in close proximity to the perceived gas meter
and gas lines, (3) allowing others to utilize a firearm testing
facility does not permit a reckless endangerment charge being

-13-

leveled against the owner or operator of the facility, and (4)
the reckless endangerment charge was fatally flawed from the
outset due to "factual impossibility" attributable to the absence
of gas in the lines.
In addition to the just listed arguments highlighted in
plaintiff's post-trial Memorandum of Law in Opposition,
plaintiff, in opposing defendants' Rule 50(a) motion at trial,
articulated the position that it was for the jury to decide
whether a reasonable police officer would have endeavored to
determine whether there was gas in the lines as part of the
probable cause assessment instead of arresting plaintiff without
such further investigation.

As will be explained infra, the

answer to this last question is pivotal to a resolution of the
present dispute particularly with respect to the legitimacy of
the jury's false arrest determination.
Plaintiff's position concerning the availability of
qualified immunity vis-a-vis Faltings's involvement in Tretola's
false arrest is essentially as follows: (1) the defense is
procedurally barred for failure to be advanced as part of
defendants' Rule 50(a) motion at trial, and (2) in any event, he
has failed to demonstrate an entitlement to such protection even
if the claim is addressed on its merits.
Finally, as to the malicious prosecution claim,
plaintiff underscores that "Tretola was arrested on June 1, 2007

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based on Faltings [sic] actions" and thereafter was "prosecuted
by the Nassau County District Attorney with significant
assistance from Faltings."

(Pl.'s Mem. in Opp'n at 14-15.)

III. The Guilty Plea of Marble Enterprises, Inc.
to a Fire Code Violation Does not Provide
Probable Cause for the Arrest of Tretola on
June 1st for Reckless Endangerment as Urged by
Defendants in Their First Argument Directed to
the False Arrest Verdict
"An officer has probable cause to arrest when he or she
has 'knowledge or reasonably trustworthy information of facts and
circumstances that are sufficient to warrant a person of
reasonable caution in the belief that the person to be arrested
has committed or is committing a crime.'"

Jaegly v. Coach, 439

F.3d 149, 152 (2d Cir. 2006)(quoting Weyant v. Okst, 101 F.3d
845, 852 (2d Cir. 1996).

The existence of probable cause is a

complete defense to an action for false arrest "whether that
action is brought under state law or under § 1983."
F.3d at 852.

Weyant, 101

A party may not legitimately complain if, on the

date of his arrest, the arresting officer or another officer
involved at the scene had probable cause to arrest that party for
any offense.

See Jaegly, 439 F.3d at 154 ("[A] claim for false

arrest turns only on whether probable cause existed to arrest a
defendant, and that it is not relevant whether probable cause
existed with respect to each individual charge, or, indeed, any
charge actually invoked by the arresting officer at the time of
the arrest."); see also Marcavage v. City of New York, 689 F.3d
-15-

98, 110 (2d Cir. 2012)("Defendants [will] prevail [on their
probable cause to arrest position] if there was probable cause to
arrest Plaintiffs for any single offense.").

And a guilty plea,

even if to a lesser included offense under a charged violation,
is fatal to a false arrest claim.

That is so because such a

plea, in essence, bars the supposedly aggrieved party from
alleging the absence of sufficient grounds for his or her arrest.
In defendants' view, as articulated in their First Argument,
Marbles' June 26, 2007 plea to fire code violation eviscerates
Tretola's false arrest claim as a matter of law.

That argument

lacks merit.
Marbles Enterprises, Inc., was the entity charged in
the appearance ticket issued by Fire Marshal Szymanski on May 9th
and the corresponding guilty plea was entered by Tretola on
behalf of the corporation.

Tretola, of course, was the arrestee

on June 1, 2007, not the corporation.

Yet defendants, in their

well crafted post-verdict submissions, fail to explain how a
corporate plea binds an individual plaintiff.

Perhaps the

thought is that their joinder as plaintiffs provides the
necessary nexus.

If so, the logic of that possible argument is

problematic at best.

Cf. UCAR Intern., Inc. v. Union Carbide

Corp., 2004 WL 137073, at *13 (S.D.N.Y. Jan. 26, 2004)("A basic
tenant of American corporate law is that the corporation and its
shareholders are distinct entities")(internal quotation marks and

-16-

citations omitted).
Also unexplained by defendants is the logic behind the
proposition that the probable cause for the May 9th fire code
violation, with the concomitant issuance of an appearance ticket,
furnishes a legally cognizable predicate for Tretola's arrest for
reckless endangerment three weeks thereafter.

It is one thing to

say that the existence of probable cause for a fire code
violation on May 9th may serve as the basis for plaintiff's
arrest on that date for reckless endangerment, and something all
together different to claim, as defendants implicitly do, that
the May 9th probable cause for the fire code violation provides
an "open-ended" basis to arrest plaintiff without a warrant and
without offense-specific probable cause sometime thereafter.
Here the "sometime thereafter" was June 1st, but if defendants'
argument is sound the later arrest presumably could have occurred
three months thereafter or anytime within the applicable statute
of limitations. Not surprisingly, defendants have provided no
authority for that notion.
In sum, defendants' argument that Marble Enterprises,
Inc.'s guilty plea provided probable cause for Tretola's arrest,
presented devoid of authority or a convincing rationale, is
unconvincing.
IV.

The Jury's Implicit Finding That Faltings Lacked
Probable Cause to Arrest Tretola on June 1, 2007
is Neither Contrary to Applicable Law nor the
Facts Adduced at Trial
-17-

By way of format, initially certain basic principles of
probable cause jurisprudence are set forth in this segment of the
opinion.

That is followed by an analysis of whether Faltings

had probable cause to arrest Tretola, utilizing May 9th as the
operative date in keeping with the arguments of both counsel.
After May 9th, however, and shortly before his arrest,
Tretola told Faltings, in essence, that the heater was not
operational.

But for some unexplained reason that post-May 9th

conversation is not mentioned in the parties' post trial
submissions.

Possibly that brief but critical portion of the

testimony was overlooked, leading to the problematic date
selection.

In any event, given the Court's belief that the

appropriate date for present purposes was when Tretola was
actually arrested on June 1st, defendants' attack on the false
arrest verdict is also evaluated under that scenario.
A. Probable Cause is Determined Solely on an Objective
Basis
Construing all the evidence in the light most favorable
to plaintiff, as must be done in a Rule 50 context, Faltings's
conduct was outrageous.

For a police officer to utilize the

awesome power of arrest for vendetta purposes represents an
abhorrent abuse of the public trust.

That point was driven home

repeatedly by plaintiff's counsel throughout the trial.

However,

Faltings's motivation is not germane in assessing the presence or
absence of probable cause.

As explained by the Supreme Court in
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Brigham City, Utah v. Stuart:
An action is "reasonable" under the Fourth
Amendment, regardless of the individual
officer's state of mind, "as long as the
circumstances viewed objectively justify
[the] action." Scott v. United States, 436
U.S. 128, 138 (1978)(emphasis added). The
officer's subjective motivation is
irrelevant. See Bond v. United States, 529
U.S. 334, 338 n.2 (2000)("The parties
properly agree that the subjective intent of
the law enforcement officer is irrelevant in
determining whether that officer's actions
violate the Fourth Amendment . . .; the issue
is not his state of mind, but the objective
effect of his actions."); Whren v. United
States, 517 U.S. 806, 813 (1996)("[W]e have
been unwilling to entertain Fourth Amendment
challenges based on the actual motivations of
individual officers."); Graham v. Connor, 490
U.S. 386, 397 (1989)("[O]ur prior cases make
clear" that "the subjective motivations of
the individual officers . . . ha[ve] no
bearing on whether a particular seizure is
'unreasonable' under the Fourth Amendment.).
547 U.S. 398, 404 (2006)(emphasis in original).
For analytical purposes, therefore, Faltings's thought
processes must be divorced from the assessment and the focus
confined to "whether an objectively reasonable officer could
conclude that the historical facts at the time of the arrest
amount[ed] to probable cause."

Cortez v. McCauley, 478 F.3d

1108, 1116 (10th Cir. 2007).
B.

Faltings's Observations on May 9, 2007 Provided
Probable Cause to Arrest Tretola for Reckless
Endangerment as of That Date
On May 9th, Faltings saw what he believed to be a gas-

fired heater and accompanying gas lines on the same wall, and in
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close proximity to an apparent firing range.

He knew, as earlier

noted, that Tretola was the operator of T&T Gunnery and had
discharged weapons into the bullet traps in the facility.

The

then current and repeated use of those traps for testing and
possibly other purposes was evident from, inter alia, the
hundreds, if not thousands of spent shells on the floor and by
the multiple sets of ear and eye protectors on site.

Tr. at 170-

72.
Plaintiff argues that those observations were
inadequate to establish probable cause on the several grounds
detailed previously.

But some of those grounds, viz. factual

impossibility and absence of the evidence as to mens rea, are
patently flawed due to their proponent conflating what is
required to establish probable cause and the proof necessary to
convict.

The standards are distinct.

See, e.g., Draper v.

United States, 358 U.S. 307, 312 (1959)("There is a large
difference between the two things to be proved" [referring to
guilt and probable cause]); Criss v. City of Kent, 867 F.2d 259,
n.1 at 262 (6th Cir. 1988)("The quantum of proof required to
establish probable cause is significantly lower than that
required to establish guilt.

The issue in this case is not

whether sufficient evidence exists to support a conviction for
receipt of stolen property but simply whether the City of Kent
police officers, at the time they arrested the plaintiff, had

-20-

probable cause to believe that plaintiff had violated the Ohio
statute (internal citation omitted)(emphasis in original); Cf.
Coogan v. City of Wixom, 820 F.2d 170, 173 (6th Cir. 1987)("the
standard of proof of guilt beyond a reasonable doubt has no
relevance to the issue of probable cause to institute a
prosecution").
Based on Faltings's observations made on May 9th, he
had "knowledge . . . of facts and circumstances . . . sufficient
to warrant a person of reasonable caution in the belief that
[Tretola had] or [was] committing a crime," Jaegly, 439 F.3d at
152.

In urging a contrary result, plaintiff insists that a

precondition to finding probable cause was an investigation to
assure that the heater was operational even though Faltings at
that time had no information to suggest that it was not.
However, common sense suggests that it is reasonable for a person
entering an established place of business to assume that an
apparently intact heating system is operational, just as, for
example, an individual visiting someone's home, absent contrary
evidence, would assume that bathroom fixtures were in working
order.

Incidently, Fire Marshal Szymanski assumed that the gas

heater at T&T Gunnery was operational as of May 9, 2007.

Tr. at

673-74 and 686-89.
To determine whether the heater was connected to an
established gas line would have required the officer to go

-21-

outside of T&T Gunnery's premises to inspect the exterior of the
outside wall in search of a corresponding gas meter.

Plaintiff's

argument that the jury could legitimately conclude that such an
additional step was required as of May 9th is not convincing.
The jury's role was to determine facts, not alter established
law.
Faltings's observations on May 9th, objectively viewed,
were not inconclusive or otherwise suspect so as to require that
he investigate further before concluding that he had probable
cause.

Curley v. Village of Suffern, 268 F.3d 65, 70 (2d Cir.

2001); Krause v. Bennett, 887 F.2d 362, 370-72 (2d Cir. 1989).
See Hahn v. County of Otsego, 820 F. Supp. 54, 58-59 (N.D.N.Y.
1993)("The question is not what might have been developed from
further investigation, but whether the facts known when, and on
which, defendant acted were sufficient to constitute probable
cause."); see also Criss, 867 F.2d at 263.

If, contrary to the

fact, the situation were otherwise, further investigation – such
as taking steps to determine if the heater was actually
operational – would have been called for.

See Cortez v.

McCauley, 478 F.3d 1108, 1116-17 (10th Cir. 2007)(further
investigation required to establish probable cause where "the
only information which arguably implicated [the defendant] was [a
twice-removed hearsay] statement attributed to a barely-verbal
two-year old child that her babysitter's "boyfriend" had "hurt

-22-

her pee pee."; Wong v. Yoo, 649 F. Supp. 2d 34, 60-61 (E.D.N.Y.
2009); and Roundtree v. City of New York, 208 A.D. 2d 407, 407
(1st Dep't 1994)("Here, probable cause was lacking, given the
indicia of unreliability in the statement that was undisputedly
the impetus for plaintiff's arrest.

The investigating officer

admitted that he had harbored serious doubts about the witness'
identification of plaintiff as the murderer. . . .").
Where, as here, the officer had probable cause – or at
least did as to May 9th – no further inquiry or probing was
necessary.

As explained by the Second Circuit in Krause v.

Bennett:
It bears repeating that probable cause does
not require an officer to be certain that
subsequent prosecution of the arrestee will
be successful. "It is therefore of no
consequence that a more thorough or more
probing investigation might have cast doubt
upon" the situation. . . .
Once officers possess facts sufficient to
establish probable cause, they are neither
required nor allowed to sit as prosecutor,
judge or jury. Their function is to
apprehend those suspected of wrongdoing, and
not to finally determine guilt through a
weighing of the evidence.
887 F. 2d at 371-72 (quoting Manley, 632 F.2d at 984).
Simply put, had Faltings arrested Tretola for reckless
endangerment on May 9th, or even thereafter barring a significant
change in circumstances, he would have had probable cause for
that arrest and the jury's verdict could not stand.

-23-

But the

arrest did not occur on that date, and the circumstances did
change materially before Tretola's arrest on June 1st.
C.

Probable Cause for False Arrest Purposes Should be
Determined as of the Actual Date of Arrest,
Here June 1, 2007
Tretola was arrested on June 1, 2007.

Even though it

is not imperative that an arrest be made contemporaneously with
the acquisition of probable cause, here the landscape changed
materially between May 9th and the arrest date.

That is

evidenced by the following collogue between Faltings and Tretola
as reported by Tretola during his direct examination by
plaintiff's counsel:
Q.

All right.

How did it come about that you

A.

Well, I was really, like stressed out, so me

were arrested?

and my wife, we took a ride upstate New York.

I like to go

upstate to buy tomatoes and stuff.
I got a call from Eric Faltings on my cell
phone, and he says, you've got to come down here right now.
You're being arrested.
Q.
A.
arrested.

Do you remember what time it was?
It was Thursday, the day before I got

I said, I'm all the way upstate New York.

the way by Albany.
down there.

I was all

I said, it's going to take a long time to get

I said, what am I being arrested for?

-24-

Q.
A.
endangerment.

What did he say?
He said, you're being arrested for reckless

I said, what?

there is no gas in the pipe.
today.

He said, gas in the pipe.

I said

I said I can't make it down there

He says you can report to the Seventh Precinct at seven

o'clock in the morning and get arrested.
Q.

Is that what you did?

A.

That's what I did, and I got arrested.

Tr. 353-54.(emphases added).
This additional information must be factored into the
probable cause analysis with the relevant date now being June 1,
2007, not May 9, 2007.

Devenbeck v. Alford, 543 U.S. 146, 152

("Whether probable cause exists depends upon the reasonable
conclusion to be drawn from the facts known to the arresting
officer at the time of the arrest.")
Parenthetically, for Faltings to have said "gas in the
pipe" as reported by Tretola is arguably out of sync with other
evidence in the case since supposedly up to that point Faltings
was unaware that there was even a question as to the operability
of the heater.

However, for purposes of the present Rule 50(b)

motion, all evidence must be construed most favorably to the nonmovant.

Although the specifics of the actual exchange between

Faltings and Tretola may or may not have dovetailed precisely
with the conversation as reported by Tretola, it must be assumed

-25-

that Faltings had notice before June 1st of Tretola's easily
variable position, i.e. that, in effect, the heater was not
operational.
D.

Identification of Pivotal Question as to Jury's
Verdict on the False Arrest Claim and Denial of
Defendants' Rule 50(b) Motion to Vacate Jury's
Liability Determination as to that Cause of Action
Is there adequate evidence in the record to support the

jury's finding that Faltings falsely arrested Tretola consistent
with the applicable law regarding a police officer's duty to
investigate in certain situations?

That question calls for a two

part analysis: (1) whether there is a factual predicate for the
jury's implicit determination that Faltings, had he acted as a
reasonable police officer, would have called the gas company or
taken some other minimal step to determine the operability of the
heater before arresting Tretola, and (2) if question (1) is
answered in the affirmative, whether the jury's conclusion is
consistent with governing law regarding an officer's obligations
in determining the presence or absence of probable cause.

These

two subsidiary issues shall be addressed in reverse order.
i)

Applicable Law

A jury's finding of fact cannot stand if its
application would result in a conclusion which is contrary to
established law.

The case law, cited earlier, indicates that

once an officer has probable cause, there is no need for him or
her to delve deeper before making an arrest.
-26-

To do so, would run

afoul of the rule enunciated in such cases as Krause v. Bennett,
887 F.2d 362 (2d Cir. 1989) which, in essence, instruct that it
is not a police officer's role before making an arrest to try to
resolve disputed issues of fact.

Thus, for example in Curley v.

Village of Suffern, 268 F.3d 65 (2d Cir. 2001), the Second
Circuit held that the defendant officer had probable cause to
arrest a bar owner for assault based on the complaint of a patron
who claimed he had been attacked by the owner, and displayed
injuries consistent with that report, without investigating the
bar owner's contrary version of the event.
However, "probable cause is a fluid concept - turning
on the assessment of probabilities in particular factual contexts
– not readily, or even usefully, reduced to a neat seat of legal
rules."

Illinois v. Gates, 462 U.S. 213, 232 (1983).

Indeed,

the failure to investigate further when a reasonable officer
under the circumstances "would have done" so may indicate a "lack
of probable cause" under the "totality of circumstances."
Manganiello v. City of New York, 612 F.3d 149, 161 (2d Cir. 2010)
(internal quotation marks and citations omitted).

"[A] police

officer may not close her or his eyes to facts that would help
clarify the circumstances of an arrest.

Reasonable avenues of

investigation must be pursued especially when, as here, it is
unclear whether a crime had even taken place."
806 F.2d 123, 128 (7th Cir. 1986).

-27-

BeVier v. Hucal,

The Second Circuit and New

York State courts recognize the importance of investigation and
corroboration in appropriate cases.
F. Supp. 581, 587 (S.D.N.Y. 1996).

Wu v. City of New York, 934
See also Lowth v. Town of

Cheektowaga, 82 F.3d 563, 570-71 (2d Cir. 1996); Stile v. City of
New York, 172 A.D. 2d 743 (2d Dep't 1991); Fausto v. City of New
York, 17 A.D. 3d 520 (2d Dep't 2005); Carlton v. Nassau County
Police Dept., 306 A.D. 2d 365, 365 ("contrary to the defendant's
assertions [in seeking summary judgment], issues of fact exist to
whether the police officers had probable cause to arrest
plaintiff without a warrant at his home for (theft of services) .
. . after the plaintiff left a restaurant without paying disputed
portions of the bill, notwithstanding the existence of an
affidavit by the restaurant owner that the plaintiff left without
paying the bill"); and Oliveira v. Mayer, 23 F.3d 642, 647 (2d
Cir. 1994)(quoting, with approval the following excerpt from
BeVier v. Huckle, just cited, for the proposition "reasonable
avenues of investigation must be pursued [to establish probable
cause] especially when, as here, it is unclear whether a crime
had even taken place.").
Simply citing, as defendants have, the cases in the
Second Circuit which stand for the general proposition that once
probable cause is found to exist no further investigation is
required, is not dispositive of the matter at hand.
relevant question is whether, given the totality of

-28-

Rather the

circumstances, Faltings should have investigated further before
concluding that he had probable cause to arrest as of June 1st.
Included within the "totality of circumstances" is the de minimus
effort that would have been required to answer the simple
question of whether the heater was, or was not connected to a gas
line on May 9th.

And that effort, unlike the scenario in Krause

and Curley, would not have entailed evaluating conflicting
reports implicating credibility determinations.
In sum, the jury was called upon to determine a number
of factual issues, one of which was whether a reasonable police
officer in Faltings's position, once told of the heater's
purported status, would have ignored the information as Faltings
did or, conversely, would have done something to clarify the
situation before subjecting Tretola to a felony arrest.
Presenting that question to the jury was consistent with both the
Court's charge5 and relevant case law.

What remains to be

determined is whether their answer – which must be viewed in the
present Rule 50(b) context to have been in the affirmative –
finds factual support in the record.
ii)

Jury's Determination That Faltings
did not Have Probable Cause
on June 1, 2007 to Arrest Tretola,

5

The jury in Tretola was instructed that "an officer's
failure to investigate an arrestee's protestations of innocence
will not negate the existence of probable cause unless the
reasonable officer under the then present circumstances would
have investigated further." Tr. 940 (emphasis added).
-29-

Presumably Because he Turned a
"Deaf Ear" to Tretola's Statement
About the Inoperability of the Heater,
has Abundant Support in the Record
In the "BACKGROUND" section of this decision supra, the
details of Tretola's arrest for Reckless Endangerment, and the
relevant events preceding that arrest, are provided.

Included

within that recitation are facts which support the proposition
that a reasonable officer would have checked to see if the heater
was operational once receiving pre-arrest notice that it might
not be.

The jury knew that time was not of the essence since

Faltings waited three weeks after May 9th to effectuate the
arrest.

And they knew that "seven or eight days before

[Tretola's arrest]," Tr. at 352, the "fire marshal" visited the
premises and, upon being told by Tretola that the "gas heater
wasn't operational," quickly verified that fact by "walk[ing] to
the back of the store" with Tretola and seeing that "the box
[i.e. gas meter] was disconnected."

Tr. 351-62.

As a result,

tickets issued by fire marshal on May 9th related to the heater
were withdrawn on the spot.

And, of course, the jury had heard

about Christophe's call to the gas company verifying that the gas
line had been long since disconnected.

And perhaps the jury was

concerned about Faltings's failure to even discuss the
operability of the heater with Tretola on May 9th or thereafter.
Had he done so, that presumably would, and certainly should have
been the end of the matter.
-30-

In sum, there was more than adequate evidence in the
record to support the jury's verdict as to the false arrest claim
when that claim is viewed as of June 1st instead of May 9th.6
Accordingly the defendants' argument that that verdict must be
vacated is unavailing.
At this point, attention will be directed to the jury's
verdict of liability vis-a-vis plaintiff's malicious prosecution
claim.
V.

Defendants' Rule 50(b) Motion to Vacate the Jury's
Liability Determination on the Malicious Prosecution
Claim is Denied
A.

Elements of Malicious Prosecution Claim,
Focusing Primarily on the Vigorously Disputed
First Element
"To sustain a claim under . . . § 1983 based on

malicious prosecution, a plaintiff must demonstrate conduct by
the defendant that is tortious under state law and that results
in a constitutionally cognizable deprivation of liberty."
Alcantra v.

City of New York, 646 F. Supp. 2d 449, 457 (S.D.N.Y.

2009).
The elements of the New York State tort of malicious
prosecution are "(1) the initiation or continuation of a criminal
proceeding against plaintiff [by the defendant or defendants as
the case may be]; (2) termination of the proceeding in

6

The only disputed element of the false arrest cause of
action was whether the subject arrest was based on probable
cause.
-31-

plaintiff's favor; (3) lack of probable cause for commencing [or
continuing] the proceeding; and (4) actual malice as a motivation
for defendant's actions."
Cir. 1995).

Russell v. Smith, 68 F.3d 33, 36 (2d

Since the four elements are in the conjunctive, the

failure to establish any one of the four is fatal to the
plaintiff's claim.
As to the first element, "[t]here is a presumption that
a prosecutor exercises independent judgment in deciding whether
to initiate and continue a criminal proceeding."

Crenshaw v.

City of Mount Vernon, 2008 WL 4452223, at *8 (S.D.N.Y. Sept. 30,
2008), rev'd in part on other grounds, 372 Fed. App'x 202 (2d
Cir. 2010).

Notwithstanding that presumption, a plaintiff may

still establish the first element of the cause of action by
"demonstrating that the defendant played an active role in the
prosecution, such as giving advice and encouragement or
importuning the authorities to act."

Espada v. Schneider, 522 F.

Supp. 2d 544, 553 (S.D.N.Y. 2007)(internal citations and
quotation marks omitted).
Judge Sand in Cunningham v. New York City, provided the
following overview of the specific types of conduct by police
officers in the Second Circuit which has been found sufficient to
satisfy the first element:
In malicious prosecution cases against police
officers, plaintiffs have met this first
element [of initiation of prosecution] by
showing that officers brought formal charges
-32-

and had the person arraigned, Cook v.
Sheldon, 41 F.3d 73, 79 (2d Cir. 1994), or
filled out complaining and corroborating
affidavits, Carter v. Port Auth. of New York
& New Jersey, 2004 WL 2978282, at *8 (S.D.N.Y
Dec. 20, 2004), or swore to and signed a
felony complaint. Cox v. County of Suffolk,
827 F. Supp. 935, 938 (E.D.N.Y. 1993)."
Llerando-Phipps v. City of New York, 390 F.
Supp. 2d 372, 382-83 (S.D.N.Y. 2005); see
also Cook v. Sheldon, 41 F. 3d 73, 79 (2d
Cir. 1995).
2007 WL 2743580, at *5 (S.D.N.Y.).
Moreover, given the difficulty in "divining the
influence of an investigator or other law enforcement officer
upon the prosecutor's mind," the trier of fact may consider
whether the subject arrest was predicated upon the presence or
absence of probable cause.

Hartman v. Moore, 547 U.S. 250, 263

(2006).
B.

Question Presented and Faltings's Role
in the Prosecution
Is there sufficient evidence in the record, construed

most favorably to Tretola, to support the jury's finding on his
malicious prosecution claim consistent with applicable law?
Specifically, did Faltings play "an active role in the
prosecution"?

Rohman v. New York City Transit Auth., 215 F.3d

208, 217 (2d Cir. 2000).

The simple answer is "Yes."

Faltings's role in the prosecution is detailed in
Section II of the BACKGROUND portion of this opinion, entitled
"Facts Pertaining to Tretola'a Malicious Prosecution Claim"

-33-

supra.

By way of a brief synopsis, and construing all the

evidence most favorably to Tretola, Faltings (1) played a
significant role in the May 9, 2007 multi-agency inspections (2)
was the self-admitted arresting officer who signed the June 1,
2007 complaint and swore to its accuracy (3) personally arranged
for Tretola to surrender at a particular time and location so his
arrest could be consummated and (4) never mentioning to Pincus or
Christophe that Tretola maintained that the system was not
operational.

That level of involvement is sufficient to

establish the first element of Tretola's malicious prosecution
claim.

See, e.g., Cook v. Sheldon, 41 F.3d 73, 79 (2d Cir.

1994)("The Troopers commenced a criminal proceeding against him
by formally charging Cook with violating the VIN statute and
having him arraigned before the town justice."); Carter, 2004 WL
2978282, at *8 ("Here, it is clear that the defendants . . .
initiated and continued criminal process against Carter by
swearing out the complaining and corroborating affidavits to
initiated [sic] the case and being available as witnesses to
continue the case.); and Cox v. County of Suffolk, 827 F. Supp.
935, 938 (E.D.N.Y. 1993)("[W]hen police officer Ingald swore to
and subscribed a felony complaint charging Plaintiff with sodomy
in the first degree, Defendants continued a criminal proceeding
against Plaintiff.").
Defendants, in urging a contrary conclusion, maintain

-34-

that assistants in the District Attorneys Office, not Faltings,
made the decision to prosecute.

(Defs.' Mem. in Supp at 17.)

In

doing so, considerable reliance was placed on the testimony of
Kelly Pincus ("Pincus"), an assistant district attorney assigned
to the Early Case Assessment Bureau.

Id. at 17-18.

However,

Pincus's role in that Bureau was solely to review complaints as
prepared by the arresting officers to assure that the documents
covered each of the elements of the crimes charged.

She

explained that if "we took in over the course of five years
60,000 cases, there's probably

been six, if that many, that

we've actually said when we reviewed the paper work, no, we're
not going to go forward with an arraignment on this."
519.

Tr. at

The role of the Bureau assistants, contrary to argument

advanced by defendants, was not to decide whether to prosecute
following an arrest or, at least, the jury could have reasonably
so concluded.

Instead, their function was limited to reviewing

the facial sufficiency of charging documents presented by
arresting officers.
The only other representative from the District
Attorneys Office who testified was Cliff Christophe
("Christophe").

He testified that he inherited the Tretola file

from two other assistant district attorneys in the Office, Tr. at
544, in or about November of 2007.
Christophe learned

Id. at 543.

At some point,

– after, inter alia, contacting the gas

-35-

company – that no crime had been committed because the heater was
not operational.

Accordingly, Christophe wrote two dismissal

memoranda to his supervisor, recommending dismissal of the case,
id. at 612, which ultimately occurred on February 27, 2008, Joint
Pretrial Order, ¶ 11 at p. 7, on speedy trial grounds.
585.

Tr. at

While Christophe was handling the case he made several

unsuccessful efforts to contact Faltings who failed to return his
phone calls, Tr. at 572, although they did get together on three
occasions.

On each of those occasions, however, the sole subject

discussed pertained to police photographs of the bullet trap
area.
C.

Tr. at 560-61.
Jury's Determination as to Malicious Prosecution
Claim is Consistent With the Law and Facts
As just noted, ample evidence exists demonstrating that

Faltings played a significant role in the prosecution of Tretola
thus satisfying the first element of plaintiff's malicious
prosecution claim.

The second element, viz. a favorable

determination, is not in dispute.

Plaintiff has also

demonstrated the absence of probable cause for his reckless
endangerment arrest and, in the process under the attendant
circumstances here, satisfied the third element of his malicious
prosecution claim.
As to the fourth or final element, defendants contend
that the record is devoid of sufficient evidence of malice.

But,

as earlier noted, the Supreme Court in Hartman v. Moore instructs
-36-

that the absence of probable cause may be an indicia of malice.
Beyond that, however, the record is replete with evidence that
this entire troubling episode is traceable to animosity harbored
by Faltings towards Tretola.

Indeed, the presence of malice is

virtually undisputable given that the evidence must be viewed in
the context of the present Rule 50(b) motion.
For the reasons indicated, defendants' motion to vacate
the jury's malicious prosecution verdict is denied.
VI.

Defendants' Qualified Immunity Claim is Procedurally Barred
A.

Applicable Law
The following excerpt from the Second Circuit decision

in Ricciuti v. N.Y.C. Transit Authority provides the following
overview of qualified immunity:
The doctrine of qualified or good faith
immunity shields police officers from being
subject to personal liability for damages.
The doctrine extends to official conduct that
does not violate clearly established
statutory or constitutional rights of which a
reasonable person would have known, insofar
as it was objectively reasonable for such
officials to believe, even if mistakenly,
that their conduct did not violate such
rights.
The right to be free from arrest or
prosecution in the absence of probable cause
is a long established constitutional right.
A police officer is entitled to qualified
immunity shielding him or her from a claim
for damages for false arrest where (1) it was
objectively reasonable for the officer to
believe there was probable cause to make the
arrest, or (2) reasonably competent police
officers could disagree as to whether there
-37-

was probable cause to arrest.
124 F.3d 123, 129-128 (2d Cir. 1997)(internal citations and
quotation marks omitted).
B.

Requirement That a Request for Judgment as a
Matter of Law ("JMOL") Pursuant to Rule 50(b)
Must be Based on a Ground Articulated by the
Movant During the Trial Under Rule 50(a)
Defendants seek a determination in their Rule 50(b)

motion "that even if probable cause did not exist to arrest
Tretola, Faltings is still protected from liability since he is
entitled to qualified immunity, based on arguable probable
cause."

(Defs.' Reply at 9.)

Plaintiff contends defendants'

request is procedurally barred in that "[a]t no time during the
trial of this matter did the defendant ever argue the defense of
qualified immunity in a FRCP 50(b) motion."
at 19.)

(Pl.'s Mem. in Opp'n

In response, defendants maintain:
Plaintiffs argue that defendants waived the
right to assert this defense in this 50(b)
motion since it was not explicitly stated in
defendants' 50(a) motion. Pl. Mem., pp. 1820, citing Lore [v. City of Syracuse, 670
F.3d 127 (2d Cir. 2012)]. Plaintiffs are
wrong. In Lore, the Second Circuit expressly
held that the issue of qualified immunity is
a legal issue to be determined by the court,
not by the jury. Lore, 670 F.3d at 162 ("We
conclude that although the district court
properly put the fact questions to the jury,
it erred in having the jury decide the
ultimate legal question, in light of the
facts established of whether [defendant
police officer] in his personal capacity, was
entitled to qualified immunity. That legal
question should have been answered by the
court.") (emphasis added.) Therefore, it was
-38-

not necessary that defendants present the
issue of qualified immunity at the close of
plaintiffs' case or, indeed, at the close of
trial. Moreover, at the close of plaintiffs'
case, the Court asked Deputy County Attorney
Joseph Nocella, "Mr. Nocella, are there any
motions now that the plaintiff has –
plaintiffs have presented their case-inchief?" Tr. 690:23-691:1. Nocella then
moved for a directed verdict, stating
"there's insufficient evidence for any
reasonable jury to find that the defendants
lacked probable cause[.]" Tr. 691:2-7. It is
implicit in Nocella's reference to "probable
cause" that arguable probable cause, which is
required to establish qualified immunity, was
included in his 50(a) motion at the close of
plaintiffs' case, as well as his renewed
50(a) motion at the close of trial. Tr.
983:23-984:24.
(Defs.' Reply at 9-10.)
Plaintiff has the better side of the argument.

Lore

does not provide support for the position that "it was not
necessary that defendants present the issue of qualified immunity
at the close of plaintiffs' case or, indeed, at the close of
trial."

(Defs.' Reply at 10.)

Granted, the "ultimate legal

question" as to whether Faltings was entitled to qualified
immunity would have been for the Court to decide had the subject,
contrary to the fact, been broached by Faltings during the trial.
However, the task of making the predicate factual findings rests
with the trier of fact.

Yet, defendants did not request special

interrogatories to elicit factual finding from the jury.

Lore,

670 F.3d at 162; see generally Matthews v. City of New York, 2006
WL 842392, at 8, n.3 (E.D.N.Y. Mar. 27, 2006).
-39-

Conceivably an argument could be advanced that there
were no factual issues bearing on the availability of qualified
immunity raised during the trial thereby obviating the need for
jury input and placing the issue squarely in the Court's hands.
However, the defense has not taken that position, and the Court
is unaware of any case law in a Rule 50(b) context, suggesting
that such an argument would be anything other than problematic.
Moreover, plaintiff, in his post verdict submission has
identified a number of questions which he believes should have
been presented to the jury via interrogatories had Faltings
elected to pursue his qualified immunity defense.

(Pl.'s Mem. in

Opp'n at 20, n.13 ("Towards the close of trial, the Court
unilaterally raised the issue of qualified immunity and offered
the Defendants the option to propose interrogatories which would
allow the Court to reach the issue of qualified immunity.
807-808.

Tr. at

These interrogatories could have asked the jury, for

example, if the marks Faltings saw on the wall were bullet holes
or whether evidence existed that the pipe was a gas line.
However, the Defendants never followed the Court's direction in
this regard.").)

Absent from defendants' reply memorandum is a

comment, no less a specific retort, to Tretola's proffered
"additional procedural hurdle" to their current qualified
immunity argument, viz. "the failure to submit any
interrogatories to the jury."

(Pl.'s Mem. in Opp'n at 19.)

-40-

Simply put, Lore does not support defendants' Rule
50(b) argument that Faltings is entitled to judgment as a matter
of law under the doctrine of qualified immunity even though that
ground was never mentioned in defendants' Rule 50(a)
applications.
Similarly unavailing is the alternative argument that
defense counsel's incantation of the term "probable cause" during
his Rule 50(a) applications "implicit[ly]" provided the requisite
notice to opposing counsel and the Court of Faltings's qualified
immunity claim for purposes of Rule 50(b).
As to that issue, Lore is instructive.

(Defs.' Reply at 10.)

In Lore, the Second

Circuit explicitly underscores that, to provide "fair" notice to
the non-movant under Rule 50(a), "'the motion must specify the
judgment sought and the law and facts that entitle the movant to
the judgment.'" Lore, 670 F.3d at 152 (quoting the statutory text
of Fed. R. Civ. P. 50(a)(2))(emphasis omitted).

An oblique

reference to "probable cause" fails to satisfy that standard.
And "the specificity requirement is obligatory".

Holmes v.

United States, 85 F.3d 956, 962 (2d Cir. 1996)(internal quotation
marks and citations omitted).
C.

Conclusion as to Qualified Immunity Defense
For the reasons indicated, the captioned portion of

defendant's Rule 50(b) motion is denied as procedurally barred.
VII. Defendant's Motion for new Trial Pursuant to
Rule 59(a) is Denied but Their Alternate Motion for
-41-

Remittitur of Both the Compensatory and Punitive
Damage Awards is Granted
Defendants have moved pursuant to Rule 59(a) of the
Federal Rules of Civil Procedure for a new trial should the
Court, as it has, deny their Rule 50(b) motion, or, in the
alternative, for a remittitur of both the compensatory and
punitive damage awards.
In seeking a new trial defendants contend that "since
probable cause existed for Faltings to arrest Tretola, based
[not] only on [applicable case law], but also because probable
cause, or at least arguable cause, existed, the jury's findings
of false arrest and malicious prosecution are against the clear
weight of evidence."

(Defs.' Mem. in Supp. at 20.)

Given that

the identified linchpins for that position are the purported
presence of probable cause or arguable probable cause, the
Court's previously announced contrary findings on those subjects
is fatal.

For that reason and others, the jury did not reach a

"seriously erroneous result" nor may its findings of liability be
legitimately labeled as "a miscarriage of justice."
Benefit Ass'n of City of New York, 310 F.3d at 54.

Patrolmen's
However,

although defendants are not entitled to a new trial, their
position as to the need to downwardly adjust the jury's monetary
awards via remittitur has merit.
VIII.

Conditional Remittitur is Warranted as to Jury's
Compensatory and Punitive Damage Awards

-42-

A.

Defendants' Application
"[I]n the event the Court does not grant judgment as a

matter of law under Rule 50(b), or a new trial under Rule 59,
since the jury's award of $3 million in compensatory damages and
$2 million in punitive damages are both grossly excessive,
remittitur . . . is necessary."
B.

(Defs.' Mem. in Supp. at 20.)

Applicable Law
The following excerpt from defendants' memorandum of

law well synopsizes the law of remittitur:
A conditional order for remittitur under
Rule 59, if granted by the Court, requires a
plaintiff to choose between accepting the
reduction of a verdict found to be excessive,
or of submitting to a new trial. See Kirsch
v. Fleet Street, Ltd., 148 F.3d 149, 165 (2d
Cir. 1998). . . . Under Federal law, an
award will not be disturbed unless it is "so
high as to shock the judicial conscience and
constitute a denial of justice." Ismail v.
Cohen, 899 F.2d 183, 186 )2d Cir. 1990). "A
remittitur, in effect, is a statement by the
court that it is shocked by the jury's award
of damages." Id. In determining whether the
jury reached a "seriously erroneous" result,
the district court "is free to weigh the
evidence and 'need not view [the evidence] in
the light most favorable to the verdict
winner.'" Farrior v. Waterford Bd. of Educ.,
277 F.3d 633, 634 (2d Cir. 2002)(quoting DLC
Mgmt. Corp. 163 F.3d at 134). . . . To
determine whether an award is so high as to
"shock the judicial conscience," the Court
must "'consider[] . . . the amounts awarded
in other, comparable cases.'" DiSorbo v. Hoy,
343 F.3d 172, 183 (2d Cir. 2003)(quoting
Mathie v. Fries, 121 F.3d 808, 813 (2d Cir.
1997)). A court should determine whether the
award is "within a reasonable range," not
just "balance the number of high and low
-43-

awards and reject the verdict in the instant
case if the number of lower awards is
greater." Ismail, 899 F.2d 187.
(Defs.' Mem. in Supp. at 20-22.)
C.

The Jury's Award of $3,000,000 in Compensatory
Damages Shocks the Judicial Conscience
i) Evidence of Economic Loss
No documentary evidence of economic loss was

introduced.

Plaintiff's oral testimony on the subject,

defendants maintain, established no more than $397,434 in
economic loss.

(Defs.' Reply at 11.)

The primary components of

that sum are attributable to lost handgun and associated
accessory sales during the period plaintiff was prohibited from
selling handguns at his Seaford store.

Plaintiff testified that

the subject period was "about 13 or 14 months."

Tr. at 375.

Relying on Defendants' Trial Exhibit T, defendants calculations
are based on the assumption that the suspension was for thirteen
months.

Plaintiff's higher counter-calculations totaling $445,

605 is based on the belief that the suspension was for fourteen
months.
Defendants' Trial Exhibit T is entitled "Reinstatement
of New York State Gun Dealers License . . . [to] T&T Gunnery."
However, that document is merely an internal police memorandum
addressing the subject of reinstatement, as distinct from a
communique to plaintiff lifting the suspension as suggested by

-44-

defendants.

(See Defs.' Tr. Ex. T.)

Therefore, the Court

concludes that plaintiff's inability to sell handguns and to make
related accessory sales was closer to fourteen, than thirteen
months, and adopts plaintiff's figures of the economic loss
totaling $445,605.7
In addition to the $445,605 loss, plaintiff correctly
notes that the jury heard his unchallenged testimony that he also
sustained damages to the tune of $140,000 brought about by the
distress sale from his "personal collection of long arms" made to
"help keep the store open."8

Tr. at 377.

In sum, the jury could have legitimately concluded
based on the evidence at trial that Tretola's economic loss was
$585,605, i.e. $445,605 plus $140,000.

See Scala v. Moore

McCormack Lines, 985 F.2d 680, 683 (2d Cir. 1993)("In reviewing a
claim that the jury awarded excessive damages, we view the
evidence and draw all factual inferences in favor of the
appellee.")(internal citations and quotation marks omitted).
ii) Emotional Distress and Other Items of
Non-Economic Damages

7

The other four components of loss, to wit, damages to T&T
Gunnery's camera and computer systems, its bullet trap, as well
as counsel fees expended in defending against the criminal
charges, are not materially in dispute.
8

That testimony was not challenged either factually as
inaccurate at trial, or legally as a non-recoverable item of
damages in defendants' post-trial submissions.
-45-

In addition to the economic loss of $585,605, plaintiff
is entitled to be compensated for "such [other] injuries as
impairment of reputation . . . personal humiliation, and mental
anguish and suffering."

(Defs.' Mem. in Supp. at 22 (citations

and internal quotation marks omitted).

Defendants unconvincingly

contend that "Tretola's 'garden variety' emotional damages
entitle him to no more than $20,000."
(a)

Id.

Plaintiff's Claims and Concomitant
Proof in the Record

Plaintiff testified about various non-economic injuries
traceable to defendants' conduct including (1) the pain and
suffering he experienced from being handcuffed behind his back
upon his arrest, Tr. at 357, (2) being deprived of his liberty
for somewhere between three and four and a half hours upon being
arrested, during which time he was chained to a wall in the
precinct, placed in a cell, and then transported to the district
court for arraignment, Tr. 357-58, (3) the humiliation of being
the focus of negative news coverage on Channels 11 and 12, as
well as in Newsday immediately following the May 9th multi-agency
raid of the Seaford store and his subsequent arrest,9 id. at 36162, (4) being ostracized by many of his prior friends in law
enforcement, id. at 362-63, (5) the anger he felt each of the "16

9

A Newsday article about his arrest featured a picture of
plaintiff in his uniform as a Boy Scout leader; that report
understandably "really got to [him]." Tr. at 361.
-46-

to 18" times, he was required to go to court, id. at 383, on
charges he believed to be bogus, id. at 364, (6) his apprehension
that the business was "going to fail because people weren't
coming in and [because] we got a bad rep," id. at 365,10 and (7)
"feeling like a loser" due to an inability to keep current with
his bills, id. at 372.
As a result of these stressors, he had trouble sleeping
thus creating the need for proscribed sleeping pills, id. at 364,
his "stomach was turning all the time," id. at 372, he was
"depressed," id., he was too embarrassed to see his father for a
period in apparent contravention of his usual practice, id., he
"gained between 60 and 70 pounds," id. at 365, and his demeanor
changed — according to the testimony of Robert Sefton ("Sefton"),
a retired Chief of Support for the Nassau County Police
Department, id. at 244, – from "a happy-go-lucky guy . . . [to a]
much more guarded, much more quiet individual [who appeared]

10

Tretola told the jury that after the events of May 9th
and his June 1st arrest the majority of his law enforcement
clientele ceased patroning T&T Gunnery, Tr. 362-63, and that the
Merrimack and Long Beach Police Departments were no longer his
customers. Id. at 391-92. He also testified that out-of-state
firearm vendors refused to sell him weapons due to his
outstanding felony charge, Tr. at 366-67, and that he feared he
would lose his right to sell firearms "if [he] had a felony
charge [presumably meaning a conviction]." Tr. at 380. The
latter portion of that testimony – i.e., his belief that he would
lose his business in the event of a felony conviction – stands
unchallenged.
-47-

depressed."

Id. at 258-59.11

Similar testimony as to the change in plaintiff's
personality was given by Hank Brehl ("Brehl"), plaintiff's
landlord "since 1978."

Tr. at 226.

After testifying that the

gas heater had been disconnected from an operative gas line in
the late 1980s, id. at 229, Brehl described the plaintiff "after
the arrest but before the criminal prosecution ended,"12 id. at
242, as "not [being] his normal self," id. at 236, as appearing
"very depressed," id. at 237, and, for the first time, having
"problems in paying [his] rent."

Id. at 240.

Incidentally, that

last problem continued up to the date of Brehl's August 8, 2012
testimony.

Id.
As to the duration of Tretola's non-economic injuries,

it appears that those injuries were mainly limited to the period
of almost ten months separating the events of May 9, 2007 and the
dismissal of the criminal charges on February 27, 2008.

Proof of

residual non-economic harm beyond the latter date was not
developed during the course of the trial.

That said, however,

the duration of personal and commercial reputational damage and

11

It is unclear whether Sefton's description of Tretola's
post-arrest demeanor reflected his observations "during the
pendency of [the] prosecution" or extended up to the time of
Sefton's testimony on August 8, 2012. See Tr. 256-258.
12

The dismissal of the reckless endangerment charge
occurred on February 27, 2008, thus ending the criminal
proceeding. Tr. at 600-01.
-48-

associated humiliation is virtually impossible to gauge with any
degree of certainty, but presumably extended beyond the date the
prosecution ended given the broad-based nature of the media
coverage.
(b) Amount Awarded for Non-Economic
Component of Compensatory Damages
is Excessive
Given the totality of the evidence presented, the jury
was justified in returning a significant non-economic
compensatory award.

But "significant" means far less than

$2,414,395 (i.e. $3,000,000 - $585,605) for a number of reasons.
Not only were the non-economic items of damages largely limited
to a relatively short span of time, but the subject injuries,
though corroborated by Sefton and Brehl, were presented to the
jury absent any evidence of medical or counseling services being
provided.
helpful.

While such evidence is not required, it is typically
Razzano v. County of Nassau, 2012 WL 1004900, at *5

(E.D.N.Y. Feb. 27, 2012) citing, Carrero v. New York City Hous.
Auth., 890 F.2d 569, 581 (2d Cir. 1989).
Setting an appropriate remittitur amount is a
formidable task because "[u]nlike pecuniary losses, [noneconomic] damages are . . . not easily translated into a dollar
amount."

Sulkowska v. City of New York, 129 F. Supp. 2d 274, 308

(S.D.N.Y. 2001)(citations omitted).

Courts in undertaking the

process typically look to awards in similar type cases in

-49-

deciding whether a motion for remittitur has merit, "bearing in
mind [, however,] that any given judgment depends on a unique set
of facts and circumstances."

Scala v. Moore McCormack Lines, 985

F.2d 680, 684 (2d Cir. 1993).
Complicating that approach here is that most of the
reported decisions addressing non-economic compensatory awards
against members of law enforcement involve not only emotional
trauma but physical injury as well.

That being said, the

following decisions were, nonetheless, helpful to the Court: Zeno
v. Pine Plains Central School District, 702 F.3d 655 (2d Cir.
2012); Meacham v. Knolls Atomic Power Lab., 381 F.3d 56 (2d Cir.
2004) vacated on other grounds sub nom KAPL, Inc. v. Meacham, 544
U.S. 957, 125 S. Ct. 1731, 161 L.Ed.2d 596(2005); Thomas v.
Kelly, 903 F. Supp. 2d 237 (S.D.N.Y. 2012); and Wallace v.
Suffolk County Police Dep't, 2010 WL 3835882 (E.D.N.Y. Sept. 24,
2010).
In Zeno, the jury in a Title VI Civil Rights action
awarded plaintiff $1,250,000 in compensatory damages based on the
defendant school district's deliberate indifference to a known
pervasive pattern of horrendous racially-based harassment
directed at Zeno by his fellow students during three and half
years of his high school experience.
from the school minus a diploma.

As a result, he withdrew

Following return of the jury's

verdict awarding $1,250,000 in compensatory damages, defendant

-50-

moved for judgment as a matter of law or, alternatively, for
either a new trial or a remittitur of the jury's award.

That

application was partially granted, but only to the extent the
district court, upon remand, ordered a new trial to be held
unless Zeno agreed to accept $1,000,000 for his mental distress
claims.

He did so, whereupon judgment was entered.
The school district then appealed, arguing that Zeno's

"garden variety" injuries called for remittitur to a far more
modest amount than the lower court had granted.

That argument

was rejected in toto by the Circuit.
Zeno, of course, is distinguishable from the instant
suit.

Not only is it a Title VI, rather than a Section 1983

Civil Rights case, but the Circuit in Zeno opined that, given the
severity of harassment, its adverse impact on the boy's future
educational and employment opportunities was potentially long
term.

In contrast, the harm to Tretola occurred during an

approximately ten month span which expired long before trial.
Notwithstanding these marked differences, however, Zeno is
germane for present purpose because, like here, (1) no medical
testimony was provided, (2) no physical injuries were
sustained,13 and (3) proof of the aggrieved party's emotional

13

Although Zeno "endured [both] threats and physical
attacks," Zeno, 702 F.3d at 667, absent from the opinion is any
information suggesting that he sustained physical, as distinct
from mental injury, as a result.
-51-

distress was corroborated by testimony of others, albeit nonprofessional witnesses.

Yet, the $1,000,000 emotional distress

award was found by the Circuit to be within the range of
reasonableness.
The plaintiffs in Meacham were former employees who
lost their jobs during a reduction in the corporate-defendant's
workforce.

Each was over forty at the time of termination.

Suit

was commenced under both federal and state anti-age
discrimination statutes, with the multiple plaintiffs ultimately
receiving favorable jury verdicts.

Defendants' post verdict

challenges to the various amounts awarded by the jury "for mental
distress damages," were, as explained by the Circuit, resolved at
the trial level thusly:
[I]f the jury had awarded a plaintiff who had
not offered evidence of treatment or of
physical sequelae14 more than $125,000 for
mental aguish, the court ordered a new trial
unless the plaintiff agreed to accept a
damages amount of $125,000. If a plaintiff
who had offered proof of treatment or
physical impact received more than $175,000
in emotional suffering damages, the court set
a remittitur equal to that amount.
Meacham, 381 F.3d at 68.
Tretola, like the first category of plaintiffs in
Meacham, did not "offer[] evidence of treatment or of physical

14

"Physical sequelae" was used to mean something more "than
testimony establishing shock, nightmares, sleeplessness,
humiliation and other subjective distress." Meacham, 381 F.3d at
77.
-52-

sequelae" attributable to mental distress generated by
defendants' misconduct.

On the other hand, however, a review of

the district court's decision, more particularly, of the
emotional distress injuries sustained by each of the Meacham
plaintiffs discloses that none suffered the type of public
humiliation and reputational damage experienced by Tretola.
Meacham v. Knolls Atomic Power Laboratory, 185 F. Supp. 2d 193,
221-237 (N.D.N.Y. 2002).
The plaintiff in Thomas v. Kelly brought an action
under 42 U.S.C. § 1983 with attendant state law claims alleging,
inter alia, that he was falsely arrested by several police
officers following the officers' response to a domestic
disturbance call.

Thereafter, as detailed in District Judge

Andrew Carter's decision outlining the evidence placed before the
jury:
Thomas spent approximately forty-five minutes
laying chest-down in the snow, handcuffed,
while police officers physically and verbally
abused him in front of his girlfriend and
neighbors. There was evidence – in the form
of oral testimony and photographs – that
during this unlawful restraint, one of the
police officers held him down by stepping on
his hair and another by stepping on his legs.
Thomas testified that one of the officers
kicked snow in his face and then actually
kicked him in the face. As Thomas was being
dragged away by his hair, he did not know
where the officers were taking him and
screamed out Marrow's name "real loud so she
could see me or know what is going on."
Thomas testified that he felt "like a piece
of trash" – "disrespected, violated,
-53-

humiliated [and] embarrassed" – "because I
never had nothing happen to me like that
before and everybody around the neighborhood
knows me as a respectable person." Then,
still in view of his girlfriend and
neighbors, Thomas was placed in a restraint
jacket, strapped to a stretcher, and put into
an ambulance. At the hospital, he was
sedated despite his protests that he did not
want to be injected with any needles. Before
he lost consciousness, he was "cold, scared,
nervous, shaking . . . [and] confused," and
his hand were "hurting and killing" him.
903 F. Supp. 2d at 263-64 (internal cites to transcript omitted.)
Absent from Thomas is an indication that plaintiff
received any medical or other professional aid as a result of the
emotional or physical assaults to his psyche and person, or that
his injuries were other than short term in nature.
Based on the above, Judge Carter denied defendant's
motion for remittitur, finding that "the jury's compensatory
damages award of $125,000 for false arrest [was] within the wide
range of false arrest awards deemed reasonable by other courts in
this Circuit,"15 followed by a supportive list of such other
court decisions with a brief synopsis of the relevant portions of
their holdings.

Id. at 264.

That listing, as well as Thomas

itself, has aided me in deciding the present remittitur motion.
Finally, Thomas's arrest was witnessed by his

15

The $125,000 compensatory damages award, as explained by
Judge Carter, covered both the loss of liberty component of
Thomas's claim as well as his emotional and physical distress
claims even though the agreed upon verdict sheet, as here, did
not separate these items. Thomas, 903 F. Supp. 2d at 262-63.
-54-

girlfriend and neighbors adding to his humiliation.

However,

that humiliation pales in comparison to the chagrin almost
certainly endured by Tretola when his purported misdeeds were
broadcast by the media throughout the bi-county area and beyond.
The defendants in Wallace v. Suffolk County Police
Department sought remittitur of the jury's damage awards
including $200,000 for emotional distress.

The gravamen of that

claim as presented to the jury was that Wallace "was subjected to
multiple acts giving rise to retaliation over a period of time by
the three highest-ranking officials in the Suffolk County Police
Department after speaking out on important matters of public
concern.

These Defendants, at times acting in concert, abused

their authority over a vulnerable subordinate."

Wallace, 2010 WL

3835882, at *9.
As a result, he "suffered, virtually daily from
sleepless nights [,] . . . his haired grayed and fell out [, he]
became tense, agitated, worried about the personal and
professional consequences of Defendants' retaliation, and quick
tempered . . . ."

Id. at *9.

And, unlike Tretola, Wallace did

receive therapy in the form of "attend[ing] monthly sessions of
the New York City Police Department's self-support group . . .
[and] he and his daughter attended at least fifteen private
therapy sessions."

Id.

Moreover, the evidence presented –

though devoid of "medical records or testimony from medical

-55-

professionals," id. at *8 – permitted the inference that
plaintiff's "emotional trauma continued even as of the time of
the trial."

Id. at *9.

However, unlike Tretola, "[p]laintiff's

claim for emotional distress . . . consist[ed] solely of [his
own, i.e., uncorroborated] testimony."

Id. at *8.

In sum, defendants' categorization of Tretola's noneconomic injuries as "garden variety" is predicated on an almost
myopic assessment of the relevant evidence, coupled with a nonrecognition of the reasonable inferences that the jury was
entitled to draw.

That is true not only concerning the media

coverage and its likely effect on plaintiff's mental state as
discussed above, but also as to other components of his noneconomic injury claim.16

Nonetheless, given that Tretola's

emotional injuries were essentially confined to a ten month
period, without any treatment by a psychiatrist, psychologist or
social worker, and considering other emotional distress awards
within the Circuit, the Court concludes that $175,000 is the
largest award for plaintiff's non-economic injuries which does
not shock the judicial conscience.
For the reasons indicated, the jury's $3,000,000
compensatory damage award is reduced, by the way of remittitur to
$760,605 (i.e. $585,605 for economic injury + $175,000 for non-

16

Parenthetically "[g]arden variety emotional distress
claims generally merit $30,000 to $125,000 awards." Thorsen v.
County of Nassau, 722 F. Supp. 2d 277, 292 (E.D.N.Y. 2010).
-56-

economic injury).
Attention now will be directed to the jury's $2,000,000
punitive damages award.

The question is not whether the jury was

justified in awarding punitive damages for clearly they were.
The viable dispute concerns the amount of that award.
D.

Jury's $2,000,000 Award for Punitive Damages
Also Shocks the Judicial Conscience
i)

Applicable Law

A jury may "assess punitive damages in an action under
§ 1983 when the defendant's conduct is shown to be motivated by
evil motive or intent, or when it involves reckless or callous
indifference to the federally protective rights of others."
DiSorbo v. Hoy, 343 F.3d 172, 186 (2d Cir. 2003)(internal
quotation marks and citation omitted).

The purpose of punitive

damages is "to punish the defendant for his willful or malicious
conduct and to deter others from similar behavior."

Sulkowska,

129 F. Supp. 2d at 309 (quoting Memphis Cmty. School Dist. v.
Stachura, 477 U.S. 299, 307 n.9 (1986).
In BMW of North America v. Gore, 517 U.S. 559, 574-75
(1996), the Supreme Court set forth three guideposts to be
considered when determining whether a punitive damage award is
excessive, to wit (1) the degree of reprehensibility of the
defendant's conduct, (2) the ratio of punitive damages to the
actual or potential harm inflicted on the plaintiff, and (3)
civil and criminal penalties available for comparable
-57-

misconduct.17
ii)

Application of Gore Factors
a)

Degree of Reprehensibility

"Perhaps the most important indicium of the
reasonableness of punitive damages award is the degree of
reprehensibility of the defendant's conduct."
575.

Gore, 517 U.S. at

Defendants maintain that Faltings's conduct did not rise to

the level of being sufficiently egregious to be deemed motivated
by an evil motive or intent.

(Defs.' Mem. in Supp. at 29-30.)

That argument is irreconcilable, however, with the voluminous
evidence that was placed before the jury indicating that the
events of May 9th and June 1st 2007 were intended to punish
Tretola.
It is beyond legitimate dispute, construing all the
evidence most favorably to plaintiff, that the first Gore factor
has been satisfied.18

17

"Although Gore was a case involving the limits imposed by
the Fourteenth Amendment on state courts awarding punitive
damages, this Court has recognized that the principles announced
in Gore are equally applicable to our review of punitive damages
awarded in a federal district court." Patterson v. Balsamico,
440 F.3d 104, 121 n.10 (2d Cir. 2006)(internal quotation marks
and citation omitted).
18

However, it warrants mention that the Supreme Court has
noted "that physical assaults generally demonstrate a higher
degree of reprehensibility than nonviolent crimes." Patterson,
444 F.3d at 121 (citation omitted). That aggravating factor is,
of course, absent here.
-58-

b) The Ratio Between the Compensatory
and Punitive Damage Awards
The compensatory and punitive damage awards, as
returned by the jury, do not raise disproportionality concerns
under Gore.

However, the $3,000,000 compensatory component of

the $5,000,000 total award has been pared, subject to remittitur
to $760,605.

As a result, the latter figure has been considered

in determining the highest amount of punitive damages that is
compatible with the Court's judicial conscience viewed through
the prism of applicable Second Circuit law regarding appropriate
"punitive award[s] against . . . individual police officer[s]."
Payne v. Jones, 711 F.3d 85, 105 (2d Cir. 2013).
The relationship between the remittitur amounts for
compensatory damages and for punitive damages as established
infra is in sync with the second Gore guidepost.
c)

Available Criminal or Civil
Penalties for Like Conduct

Defendants maintain that "[t]here are no New York State
civil or criminal penalties for a police officer found liable for
civil rights violations for false arrest or malicious prosecution
and thus, the third Gore factor is not applicable in this case."
(Defs.' Mem. in Supp. at 33.)

Plaintiff challenges the accuracy

of that statement, citing Thomas v. Kelly, 903 F. Supp. 2d 237
(S.D.N.Y. 2012) for the proposition that Faltings's conduct could
support a prosecution for kidnapping in the second degree under

-59-

New York Penal Law § 135.20 which carries a potential penalty of
25 years incarceration.

(Pl.'s Mem. in Opp'n at 34; see also

Thomas, 903 F. Supp. 2d at 268).

However, plaintiff's reliance

on Thomas for the proposition urged is problematic.

A perusal of

that decision strongly suggests that Judge Carter predicated that
portion of his analysis on the fact that defendant Kelly arranged
to have plaintiff Thomas placed in a psychiatric facility in
flagrant disregard of the statutorily established prerequisites
for taking such action.

It is not clear to me, however, that the

retaliatory arrest and prosecution of Tretola fall within the
kidnapping rationale articulated in Thomas.

In essence, then,

neither defendants nor plaintiff has assisted the Court as to the
third Gore factor.

For that reason, coupled with the fact that

the Court is unaware of any germane civil or criminal penalties
that could have been imposed for Faltings's misconduct, it is
assumed for present purposes that there are none.19

19

The above assumption, while made, is at least debatable.
As a long serving veteran of the Nassau County Police Department
– whose members have been the subject of punitive damage
assessments through the years on numerous occasions – he
presumably understood, i.e. had "Notice" for Gore purposes, that
certain types of official misconduct could have dire financial
consequences.
Parenthetically in Gore, "no criminal sanction
whatsoever [was provided] for the subject conduct" and the civil
penalty that could have been assessed was "very modest," Payne,
711 F.3d at 104.
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iii) The Jury's $2,000,000 Punitive Damage
Award is Reduced, via Remittitur, to
$175,000
It cannot be legitimately disputed that the punitive
damage award returned in this case is grossly excessive.

Indeed,

plaintiff's counsel during summation – who, incidently, was a
forceful and skilled advocate for Tretola – told the jury in
anticipation of the Court's charge on punitive damages:
[T]hose damages are designed not to
compensate Marty but to prevent this from
happening again, to send a message.
You have to determine how much those damages
should be to carry out that function. Is it
millions of dollars? No it is not.
Obviously not.
Tr. at 917.
Plaintiff contends in his post-trial submission,
however, that the punitive damages award should not be disturbed,
at least "not to the extent sought by Defendants so as to send a
message to similarly situated municipal officers and the tax
payers who ultimately must foot the bill for the damage award
that conduct similar to Faltings['s] against Tretola simply
cannot be condoned."

(Pl.'s Mem. in Opp'n at 32-33.)

A

juxtapositioning of the purpose of punitive damages with the fact
that Nassau County, not Faltings, will pay the sanction whatever
it may be, lends credence to Tretola's argument.

Unless the

award is sufficiently large to garner the attention of the
officer's supervisors and of the taxpaying public, and to trigger
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some type of meaningful response, its impact on the wrongdoer and
on others of similar mind-set is likely to be either nonexistent
or minimal, thus frustrating the very purpose of making the award
in the first place.

However, that argument may not be squared

with established Second Circuit law.

In that regard, defendants,

after unsuccessfully urging that no punitive damages were
warranted, note that the jury's $2,000,000 award dwarfs the
maximum amount ever approved by the Second Circuit in a police
misconduct case.

In making that argument, defendants

understandably place considerable stock in Payne v. Jones, 711
F.3d 85 (2d Cir. 2013).20
The Circuit concluded in Payne that a $300,000 punitive
award in an excessive force and battery suit against a defendant
police officer was excessive and that any sum over $100,000 could
not be sustained.

In doing so, Judge Leval, writing for the

panel, explained:
Our survey [of punitive damage awards in
comparable cases] shows that we have never
approved a punitive award against an

20

At the time the present motion was submitted, the cite
for Payne v. Jones was 696 F.3d 189 (2d Cir. 2012). However,
during the pendency of the motion, that opinion was amended by
the Circuit via an opinion bearing the same caption with the cite
711 F.3d 85 (2d Cir. 2013). However, for present purposes, the
differences between the two decisions are not germane except to
the extent that the revised opinion underscores the need for a
heightened degree of judicial readiness to curtail any
excessiveness in reviewing such awards. Accordingly, I will
henceforth cite to the 2013 opinion rather than its 2012
predecessor.
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individual police officer as large as the
$300,000 award here. We have described
awards ranging from $125.000 to $175,000 as
"substantial," King v. Macri, 993 F.2d 294,
299 (2d Cir. 1993), and we have ordered
remittitur of awards as low as $75,000, see
id. (reducing the award to $50,000); . . . .
Moreover, in police misconduct cases in which
we sustained awards around $150,000, see,
e.g., Ismail [v. Cohen], 899 F.2d [183,] 187
[2d Cir. 1990], the wrongs at issue were more
egregious than the misconduct of Jones.
Payne, 711 F.3d at 105.
The facts in Payne are synopsized in the Circuit
opinion, construing the evidence "in the light most favorable to
Payne [as] the prevailing party," thusly:
Payne is a decorated Vietnam War veteran who
suffers from severe post-traumatic stress
disorder as a result of his military service.
In the early morning hours of September 11,
2007, Payne was taken by his wife and son to
the emergency room at Faxton-St. Luke's
Healthcare hospital afer accidentally cutting
his thumb. Payne was combative and
disoriented when he arrived at the emergency
room.
Because of Payne's combativeness,
responding officers Brandon Jones and John
Abel placed him under arrest pursuant to N.Y.
Mental Hygiene Law § 9.41, which authorizes
the arrest of a person who appears to be
mentally ill and acts in a manner likely to
result in serious harm to himself or others.
The officers called for an ambulance to
transport Payne to St. Elizabeth Medical
Center, the nearby hospital assigned to
receive people arrested under § 9.41. While
a paramedic was examining Payne, Jones
slapped the side of Payne's head. After a
struggle in which Payne resisted the
officers' efforts to handcuff him and place
him on a gurney, Payne was loaded into the
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ambulance and taken to St. Elizabeth. Jones
followed the ambulance in his squad car.
At St. Elizabeth, Payne resisted Jones's
efforts to move him from the ambulance gurney
into an individual room in the emergency
room's mental health unit. Jones wrapped
Payne in a bear hug and pushed him into the
room. As Jones was placing Payne on the bed,
he noticed Payne's Marine Corps tattoos and
said "Marines are pussies." In response,
Payne kicked Jones in the groin area. Jones
reacted by punching Payne in the face and
neck seven to ten times and kneeing him in
the back several times. Payne, who was still
handcuffed, defended himself by putting his
hands up to cover his face and rolling on the
bed to turn his back toward Jones. A nurse
rushed forward and grabbed Jones, who then
stopped punching Payne. The attack lasted 30
seconds or less. A doctor examined Payne and
found that his face was bloody and swollen,
that his upper back was reddened. Payne
later testified at trial that the beating
aggravated his existing back pain and his
post traumatic stress disorder. There was no
evidence of any other injury.
Id. at 88.
It is obvious from Payne that a drastic reduction of
the jury's $2,000,000 punitive damage award must be made.
However, inter-case comparisons of the most important of the Gore
factors, viz. the degree of reprehensibility, are difficult to
draw.

Yet, in my view, Faltings's planned transgressions geared

essentially to destroy Tretola were at least as sanctionable via
a substantial punitive damage award as the dreadful, but
unpremeditated misconduct by the defendant officer in Payne, and
probably, more so.

Accordingly, a punitive damage award in

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excess of the $100,000 sustained in Payne would be within the
range of reasonableness.

May the same be said as to a figure in

the neighborhood of $150,000?

As the reader will recall, the

Circuit indicated that it had sustained awards of "around
$150,000," but that in those instances "the wrongs at issue were
more egregious than the misconduct of Jones."

Id. at 105.

Ismail v. Cohen, 899 F.2d 183 (2d Cir. 1990) is referenced by the
Circuit as an example of such cases.
"In Ismail, a police officer struck the plaintiff in
the back of the head following an argument over a parking
citation written by the officer.
consciousness.

The plaintiff briefly lost

When he awoke, he found that the officer was

pressing a gun against his head and a knee into his back.
Although doctors found that the plaintiff had suffered 'two
displaced vertebrae, a cracked rib and serious head trauma' as a
result of the officer's action, the plaintiff spent more than two
days in jail and was later tried, and acquitted, on three
criminal counts stemming from the parking citation dispute.

The

district court had ruled that the jury's award of $150,000 in
punitive damages was excessive. [The Circuit] disagreed,
reinstating the award."
omitted).

Payne, 711 F.3d at 105 (internal cites

Adjusting for inflation, $150,000 in 1990 was the

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equivalent of $263,497.32 in 2012.21
Finally, the Circuit in Payne, as part of its
comparable decisions review discussed DiSorto v. Hoy, 343 F.3d
172 (2d Cir. 2003), categorizating it as the "case most helpful
to our analysis."

Payne, 711 F.3d at 106.

involved retaliatory police misconduct.

DiSorbo, like here,

The relevant facts as

outlined in Payne are as follows:
The plaintiff was a woman who was
arrested by the defendant police officer
without just cause in retaliation for having
spurned his advances at a bar. At the police
station, the defendant slammed the plaintiff
into the entry door and then pushed her
against a wall, grabbing her throat and
choking her. When she tried to defend
herself by kicking the defendant, he
responded by throwing her to the ground and
striking her repeatedly. The attack left
bruises on the plaintiff's head, shoulder,
and hands, but did not cause any permanent
scarring or nerve damage. The jury awarded
punitive damages of $1,275 million. We
reduced the award to $75,000. It would be
impossible to reconcile the $300,000 punitive
award against Jones for his less
reprehensible conduct with the reduction of
the DiSorbo award to $75,000.22
Payne, 711 F.3d at 106.
Endeavoring to calibrate hideous behavior for punitive
damage comparative purposes is a necessarily challenging and

21

See U.S. Dep't of Labor, U.S. Bureau of Labor Statistics,
CI Inflation Calculator, ht-tp://data.bls.gov/cgi-bin/cpicalc.pl.
22

Use of the CI Inflation Calculator, see n.21 supra,
indicates that the sum of $75,000 in 2003 equals $93,584.51 as of
2012.
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imprecise task.

But although Payne, of course, does not

establish a cap on such awards against police officers, its
holding and rationale cautions against the trier-of-fact, and
reviewing district courts, from having their decisions largely
driven by subjective reactions to troubling conduct rather than
by applicable Second Circuit law.

Faltings's carefully

orchestrated and extended conduct is, in my judgment, within the
same range of egregiousness as that of the officers in Ismail and
DiSorbo.
In any event, having considered the Gore factors, as
well as awards in comparable cases including those discussed
above, I find that a punitive damages award of $175,000 is the
maximum sum compatible with the judicial conscience.
CONCLUSION
Defendants' Motion for judgment as matter of law
pursuant to Rule 50(b) is denied.

Their application made under

Rule 59 for a new trial is denied if plaintiff accepts the two
remittitur amounts established above.

Which is to say, unless

plaintiff agrees no later than thirty (30) days from the date of
this Memorandum and Order, in writing, filed electronically with

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the Court and served on defendants, to accept a remittitur of the
compensatory damage award to $760,605 and a remittitur of the
punitive damages award to $175,000, a new trial will be ordered.
SO ORDERED.
Dated: April 16, 2014
Central Islip, New York

_________________________
DENIS R. HURLEY, U.S.D.J.

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