Cangemi et al v. The United States of America et al
Filing
219
MEMORANDUM & ORDER granting 207 Motion for Judgment as a Matter of Law; For the foregoing reasons, Defendant's Rule 50 motion for judgment as a matter of law is GRANTED and the compensatory damages award is VACATED. Alternatively, the Court conditionally GRANTS Defendant's Rule 59 motion for a new trial. So Ordered by Judge Joanna Seybert on 3/15/2019. C/ECF (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------X
THOMAS CANGEMI, JODI CANGEMI,
MARIANN COLEMAN, FRANCIS J. DEVITO,
LYNN R. DEVITO, LEON KIRCIK,
ELIZABETH KIRCIK, CAROL C. LANG,
TERRY S. BIENSTOCK, DANIEL LIVINGSTON,
VICTORIA LIVINGSTON, ROBIN RACANELLI,
JAMES E. RITTERHOFF, THELMA WEINBERG
TRUSTEE OF THE THELMA WEINBERG
REVOCABLE LIVING TRUST, and
GALE H. RITTERHOFF,
MEMORANDUM & ORDER
12-CV-3989(JS)(SIL)
Plaintiffs,
-against–
THE TOWN OF EAST HAMPTON,
Defendant.
-------------------------------------X
APPEARANCES
For Plaintiffs:
Jonathan Halsby Sinnreich, Esq.
Timothy F. Hill, Esq.
Sinnreich Kosakoff & Messina LLP
267 Carleton Avenue, Suite 301
Central Islip, New York 11722
For Defendant:
Steven C. Stern, Esq.
Anthony F. Cardoso, Esq.
Chelsea Ella Weisbord, Esq.
Kevin Levine, Esq.
Mark A. Radi, Esq.
Sokoloff Stern LLP
179 Westbury Avenue
Carle Place, New York 11514
SEYBERT, District Judge:
In 2012, Plaintiffs, who own waterfront property in
Montauk, New York, commenced this action against several parties,
including Defendant the Town of East Hampton (the “Town” or
“Defendant”).
defendant.
After motion practice, the Town became the sole
The parties proceeded to trial and the jury found the
Town liable for private nuisance and trespass.
Before the Court
is the Town’s motion for judgment as a matter of law pursuant to
Federal Rule of Civil Procedure 50 or, in the alternative, a new
trial pursuant to Federal Rule of Civil Procedure 59.
Plaintiffs
have not moved for any post-trial relief.
For
the
following
reasons,
Defendant’s
motion
for
judgment as a matter of law is GRANTED.
BACKGROUND
The Court assumes familiarity with the background of the
case and will only discuss the evidence at trial necessary to its
analysis.
Briefly, Plaintiffs own beachfront homes in Montauk,
New York, next to two jetties.
The jetties, which were originally
built in 1926 to maintain the inlet near Plaintiffs’ properties,
have allegedly stopped the flow of sand to Plaintiffs’ beaches and
caused them to erode.
Plaintiffs seek monetary and equitable
relief.
Plaintiffs commenced this action in June 2012 against
the United States of America (the “United States”); the United
States Army Corps of Engineers (the “Army Corps”); Colonel John R.
Boule, Commander of the New York District of the Army Corps,
individually and in his official capacity (“Boule”); the Town;
William J. Wilkinson, Supervisor of the Town, individually and in
2
his official capacity (“Wilkinson”); the County of Suffolk (the
“County”); the State of New York (“the State”); Joe Martens,
Commissioner of the New York State Department of Environmental
Conservation (“DEC”) (“Martens”); and Cesar A. Perales, Secretary
of the New York State Department of State (“Perales”).
D.E. 1.)
(Compl.,
Plaintiffs filed an Amended Complaint in September 2012.
(Am. Compl., D.E. 18.)
The
Town
and
Wilkinson
(collectively,
the
“Town
Defendants) filed a motion to dismiss the Amended Complaint, (Town
Mot.
to
Dismiss,
(collectively,
D.E.
“the
13),
State
the
State,
Defendants”)
Martens,
and
separately
dismiss, (State Mot. to Dismiss, D.E. 32).1
Perales
moved
to
This Court granted
the State Defendants’ motion in its entirety, removing them from
the case, and granted the Town Defendants’ motion to the extent
that it granted their request to dismiss several claims against
them and dismissed the claims against Wilkinson. Cangemi v. United
States, 939 F. Supp. 2d 188 (E.D.N.Y. 2013) (Mar. 2013 Order,
D.E. 43) (“Cangemi I”).
The
United
States,
the
Army
Corps,
and
Boule
(collectively, the “Federal Defendants”) moved to dismiss the
Amended Complaint for lack of subject matter jurisdiction and
The Town Defendants filed their Motion to Dismiss before
Plaintiffs filed the Amended Complaint, but the parties agreed
that the motion would apply to the Amended Complaint. (Letters,
D.E. 19, 20; Sept. 2012 Order, D.E. 21.)
1
3
failure to state a claim. (Fed. Mot. to Dismiss, D.E. 71.)
Court granted the motion in part and denied it in part.
The
Cangemi
v. United States, 2016 WL 915173 (E.D.N.Y. Mar. 7, 2016) (Mar.
2016 Order, D.E. 95) (“Cangemi II”).
Upon reconsideration, the
Court granted the Federal Defendants’ motion in its entirety and
terminated all Defendants except the Town.
Cangemi v. United
States, 2017 WL 1274060 (E.D.N.Y. Mar. 31, 2017) (Mar. 2017 Order,
D.E. 134) (“Cangemi III”).
Cangemi III also denied the Town’s
motion for summary judgment.
The parties presented the case to a jury from June 4 to
June 29, 2018.2
The
Town
made
Rule
50
arguments
at
the
close
of
Plaintiffs’ case and the close of its case, and the Court reserved
decision.
(Trial Tr. 2507, 2700.)
The jury found for the Plaintiffs on private nuisance
and trespass and for the Town on public nuisance.
$355,961.27
in
compensatory
Sheet, D.E. 201, at 1-11.)
damages
to
Plaintiffs.
It awarded
(Verdict
The Town now moves for judgment as a
matter of law or, alternatively, a new trial.
The trial transcripts, which span many dates, have
consecutively numbered pages. The Court will refer to the
transcripts by page numbers only, without dates.
2
4
DISCUSSION
I.
Rule 50 Motion
A.
Standard
If a party believes that “a reasonable jury would not
have a legally sufficient evidentiary basis” to find for its
adversary on a particular issue, it may move for judgment as a
matter of law during trial under Federal Rule of Civil Procedure
50(a) and renew the motion after trial under Rule 50(b).
CIV. P. 50(a)-(b).
FED. R.
In an order determining a Rule 50(b) motion,
the district court may: “(1) allow judgment on the verdict, if the
jury returned a verdict; (2) order a new trial; or (3) direct the
entry of judgment as a matter of law.”
FED. R. CIV. P. 50(b).
The district court may only grant a Rule 50(b) motion
when “‘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
[it].’”
Protostorm, LLC v. Antonelli, Terry, Stout & Krauss, LLP, No. 08CV-0931, 2015 WL 3605143, at *2 (E.D.N.Y. June 5, 2015) (quoting
Kinneary v. City of N.Y., 601 F.3d 151, 155 (2d Cir. 2010))
(alterations in original).
In other words, judgment as a matter
of law is appropriate only when “‘a reasonable juror would have
been compelled to accept the view of the moving party.’”
5
Id. at
*1 (quoting This is Me, Inc. v. Taylor, 157 F.3d 139, 142 (2d Cir.
1998)).
“When considering the evidence associated with a Rule
50(b) motion, the trial court may not weigh evidence, assess
credibility, or substitute its opinion of the facts for that of
the jury,” Rosioreanu v. City of New York, 526 F. App’x 118, 119
(2d Cir. 2013) (internal quotation marks and citation omitted),
and must view the evidence “in the light most favorable to the
nonmoving party,” Houston v. Cotter, No. 07-CV-3256, 2016 WL
1253391, at *1 (E.D.N.Y. Mar. 30, 2016) (internal quotation marks
omitted).
B.
Analysis
The Court considers whether the evidence established the
two claims on which the jury found liability: private nuisance and
trespass.
1.
As
requires
Private Nuisance
this
“(1)
an
Court
charged
interference
the
jury,
private
substantial
in
nuisance
nature,
(2)
intentional in origin, (3) unreasonable in character, (4) with a
person’s property right to use and enjoy land, (5) caused by
another’s conduct in acting or failure to act.”
Copart Indus.,
Inc. v. Consol. Edison of N.Y., Inc., 41 N.Y.2d 564, 570, 362
N.E.2d 968, 971, 394 N.Y.S.2d 169, 173 (1977); see also New York
Pattern Jury Instructions 3:16.
The Court finds that there was
sufficient evidence to support the jury’s finding that Plaintiffs
6
suffered a substantial interference with their right to use and
enjoy their land, and that it was caused in part by the jetties,
or, at the very least, exacerbated by them.
However, the Court
agrees with the Town that no reasonable juror could have found
that the Town intentionally interfered with that right, or that
the injury was caused by the Town’s conduct in acting or failing
to act.3
As will be discussed, the causation and intent elements
of private nuisance are impacted by the Town’s lack of control
over the jetties.
a.
Control and Conduct
The parties are exceedingly familiar with the history of
the jetties, first built by a private businessman with a federal
permit in 1926 to facilitate Montauk’s economy and growth.
The
documentary evidence at trial demonstrates that in 1939, the Chief
of Engineers of the United States Army recommended the adoption of
a federal project for Lake Montauk Harbor to continue and expand
the jetties.
(See Letter from the Sec’y of War, June 1939, Defs.’
Tr. Ex. A-1, D.E. 210-1.)
That report concluded that “[r]epair of
the jetties and dredging of the basin and entrance channel [were]
justified at the expense of the Federal Government in the interest
Because the Court finds that Plaintiffs did not establish the
elements of private nuisance, it need not wade into whether the
erosion was caused exclusively by the jetties or rather, as the
Town contends, by natural erosion processes, storm impacts, and
bulkheads. Suffice it to say, “these waters aren’t what they
used to be.” The Downeaster “Alexa,” Billy Joel (1990).
3
7
of safety and convenience to navigation and in view of other
general benefits.”
Lake
Montauk
(D.E. 210-1 at ECF p. 6.)
Harbor
inlet
were
The jetties and the
subsequently
made
a
Federal
Navigation Project (“FNP”) by the Rivers and Harbors Act of 1945.
(See Rivers and Harbors Act of 1945, Defs.’ Tr. Ex. H-1, D.E. 2102.) This Act “adopted and authorized [the project] in the interest
of national security and stabilization of employment.”
2 at ECF p. 4.)
(D.E. 210-
FNPs are subject to the Rivers and Harbors Act of
1899 (33 U.S.C. § 401 et seq.), which essentially gives the Federal
Government and the Army Corps exclusive control over navigable
waters of the United States.
In 1962, the Town granted the federal government an
“absolute and indefeasible easement in the body of water known as
Lake Montauk Harbor and in the shores and bed thereof as may be
necessary to insure its permanent dedication to the uses and
purposes of a public navigable waterway.”
(See “Correction Deed”,
1962, Pls.’ Tr. Ex. 10, D.E. 210-22, at ECF p. 2.)
The Deed
recognized that the federal government was “about to enter upon
the improvement of Lake Montauk Harbor . . . [including] the
extension shoreward of the west jetty.”
p. 2.)
(Correction Deed at ECF
It conveyed “the lands and lands under water together with
the structures thereon to the United States for the purpose of
conveying to the said United States all rights and easements.”
(Correction Deed at ECF pp. 2-3.)
8
The “title to the said lands
under the waters of Lake Montauk Harbor . . . remain[ed] in the
Town of East Hampton, subject to all the rights and easements to
insure the permanent dedication of the Harbor to the uses and
purposes of a public navigable waterway.”
p. 5.)
(Correction Deed at ECF
As a result of the Deed, the Town became the servient owner
and the federal government became the dominant owner.
The Court is mindful that in prior orders, it stated
that Plaintiffs had “at least plausibly suggested that [the Town]
can maintain the Jetties without creating a nuisance or trespass
by remedial actions.”
Cangemi I at 198.
However, the evidence at
trial has convinced this Court that the Town simply could not and
did not exercise control over the jetties sufficient to impose
liability on it.
The jetties were not built by the Town.
Decades ago,
and well before all Plaintiffs here bought their homes, the Town
asked the federal government to take over the maintenance and care
of the jetties to keep the inlet open.
public.
This was to benefit the
While the Town may own the jetties and the land the
jetties sit upon, its agreement with the Army Corps bars it from
changing the jetties.
“control”
the
Thus, the only action the Town has taken to
jetties
was
to
relinquish
control
over
them.
Further, it is clear from the evidence at trial that while the
Town wanted the Army Corps to maintain the inlet, it did not
9
mandate how the Army Corps should do so.
The Army Corps was given
the discretion and control to accomplish the ongoing project.
Thomas Pfeifer, retired from the Army Corps, testified
that
the
jetties
navigational
and
project.
the
navigation
(See
Trial
channel
Tr.
were
1688.)
a
federal
“[F]ederal
responsibilities for the jetties . . . occurred going back to . . .
1945 or so, because those jetties . . . were lengthened and
fortified at the request of the United States Navy.”
1692-93.)
(Trial Tr.
“[I]n this case maintenance responsibilities for the
federal project are 100 percent federal.”
(Trial Tr. 1693.)
The Army Corps had done several studies regarding the
“navigation” “problem” and “identified that there was indeed an
erosion problem to the west of the jetties” where Plaintiffs’ homes
are located.
(Trial Tr. 1690.)
It came up with several potential
solutions, including “[j]etty rehabilitation,” “deepening of [the]
federal navigational channel,” “[r]emoval of the large shoal at
the east jetty,” “advance maintenance dredging 50 feet outside of
the channel limits to serve as a deposition basin; also, disposal
of dredge material on the western shoreline,” and “[s]and bypassing
the western shoreline.”
(Trial Tr. 1691.)
The Court recognizes
that the Army Corps was often in communication with the State, the
Town, and other local entities.
the
studies
are
done
by
(Trial Tr. 1718 (“The majority of
the
Corps.
Sometimes
there
are
contributions from the state and, in fact, the local community,
10
local government”).)
However, Pfeifer’s testimony demonstrates
that the Army Corps ultimately considered the jetties and the
channel to be a federal responsibility with federal responses
required to solve the erosion problems.
Further, while Pfeifer
alluded to an internal “headquarters”, (Trial Tr. 1756), desire to
move studies faster, the pace of the federal studies and response
(or lack thereof) was not something the Town could control.
Dr. Mark Byrnes, a former Army Corps employee and the
expert
retained
by
Plaintiffs
to
prepare
an
erosion
report,
explained that the Army Corps extended the west jetty in 1942
(Trial Tr. 515), extended the east jetty in 1968, and rehabilitated
the east jetty in 1995 (Trial Tr. 398).
Jay Schneiderman, the
former Town Supervisor, testified that the jetties were federal
navigation
projects
stabilize the inlet.
maintained
by
the
federal
government
to
The federal government “performs maintenance
and dredging and the other operations with respect to th[e] inlet.”
(Trial Tr. 1560.)
Considering the above, the evidence at trial showed that
the Army Corps expanded and maintained the jetties and “[t]he
[Town] was a mere instrumentality for performance of certain plans
and improvements.”
Ireland v. Suffolk Cty. of N.Y., 2008 WL
11394156, at *9 (E.D.N.Y. Aug. 26, 2008), aff’d 367 F. App’x 234
(2d Cir. 2010).
homeowner
sued
Ireland is instructive.
Suffolk
County
11
for
There, a plaintiff
negligence
and
nuisance,
claiming that certain dredging and jetty and groin construction
projects accelerated shoreline erosion and caused damage to her
home.
After a bench trial, the court found that the plaintiff had
not adequately established causation.
additionally
found
that
structures
“the
were
As relevant here, the court
[discretionary]
construct
these
made
primarily
Corps].”
Ireland, 2008 WL 11394168 at *9.
decisions
by
the
to
[Army
The court concluded
that “[t]he fact that various interested constituencies . . . gave
input to the [Army Corps] as to its decision on how to proceed
does not create a duty on the part of those constituencies to
account for the consequences of the [Army Corps’] decision” (id.)
even where the County agreed to hold the United States government
“free from all damages” caused by the construction of the works
(id. at *3).
The court could “not see how the County assumed a
legal duty to construct and maintain or exercise any control over
the groins and jetties that the [Army Corps] actually constructed
and
maintained.”
Id.
at
*9.
Here,
the
Town
is
similarly
positioned to the County in Ireland: it is “a mere instrumentality
for performance of certain plans and improvements and owed no duty
to [P]laintiffs.”
Id. at *9.4
Plaintiffs attempt to distinguish Ireland on the basis that
the structures there were built to prevent naturally occurring
erosion. The Court finds this unpersuasive. In both instances,
government actors sought to divert naturally flowing water and
sand for the larger public good.
4
12
Plaintiffs argue that they are not asking the Town to
change or eliminate the jetties, but rather to address their impact
in some other way.
They point to Pfeifer’s testimony indicating
that there was no federal prohibition on the Town performing a
sand bypass project.
The fundamental problem with this argument
is that the Town is not responsible for fixing a problem it did
not cause, approve, or exacerbate.
That the Town could have done
something for these Plaintiffs does not mean it was legally
required to do so (see Mangusi v. Town of Mount Pleasant, 19 A.D.3d
656, 657-58, 799 N.Y.S.2d 67, 69 (2d Dept. 2005) (“Although the
defendant has a duty to maintain its easement . . . it has no duty
to improve the plaintiffs’ property.
affidavit
of
an
engineer,
who
The defendant submitted the
testified
that
the
work
the
plaintiffs requested would benefit only the plaintiffs, and was
not necessary for drainage--the very purpose of the easement.”)
(internal citations omitted)).
b.
Causation
Private nuisance occurs when, among other things, an
interference is “caused by another’s conduct in acting or failure
to act.”
Copart Indus., Inc., 41 N.Y.2d at 570.
As explained
above, the Town engaged in no conduct that can be considered
action.
Further, while the Town may have failed to act because it
did not address the impact of the jetties, it was under no legal
duty to do so.
Again, while the jetties may have caused the
13
interference,
it
does
not
follow
that
the
Town
interference, either by acting or failing to act.
caused
the
“[T]he duty to
abate a private nuisance existing on real property arises from the
power to possess the property and control the activities that occur
on it.”
Taggart v. Costabile, 131 A.D.3d 243, 247, 14 N.Y.S.3d
388, 392 (App. Div. 2015); see also Sutera v. Go Jokir, Inc., 86
F.3d 298, 302 (2d Cir. 1996) (“As a corollary to the rule that an
easement imposes no affirmative duty on the servient owner, it
developed that the duty to maintain and repair structures or
facilities existing under an easement rests on the dominant, not
the servient, owner” and “the duties on the servient owner are
negative--to refrain from interfering with the use granted.”)
(citing New York state cases).
The servient owner owes a duty to third parties along
with the dominant owner if “‘an injury occurs in a place where the
dominant owner is exercising its rights and the servient owner is
also able, for its own purpose, to use the granted property.’”
Cardinal v. Long Island Power Auth., 309 F. Supp. 2d 376, 385
(E.D.N.Y. 2004) (quoting Sutera, 86 F. 3d at 303).
However, if
the dominant owner’s “rights in the property subject to the
easement are so exclusive that [the] servient owner retains no
rights whatever over the subject easement, and an injury occurs
where the dominant owner has such exclusive control[,]” then only
the dominant owner owes a duty to third parties.
14
Id. (internal
quotation marks and citation omitted).
Here, under the easement,
the Town was unable, for its own purpose, to use the granted
property, even though it retained ownership of the land underneath
the jetties.
The agreement was that the Army Corps would exercise
exclusive control over the area.
Thus, no duty was owed from the
Town to third parties.
c.
Intent
In the context of nuisance, interference is intentional
if the defendant acts for the purpose of interfering with the
owners’ use and enjoyment of their property, or knows that such
interference will result or is substantially certain to result
from the conduct, or becomes aware that the conduct is causing
substantial interference and nevertheless continues it.
See N.Y.
Pattern Jury Instrs. 3:16; Copart Indus., Inc., 41 N.Y.2d at 571,
362 N.E.2d at 972-73.
Again, the issues of control, causation,
and intent intertwine.
In a prior order denying the Town’s motion to dismiss,
this Court found that Plaintiffs’ claims regarding the Town’s
actions could amount to intentional conduct.
204.
See Cangemi I at
In a later order denying the Town summary judgment, this
Court found there were “genuine issues of material fact concerning
the Town’s alleged acts or omissions” and that “[t]he issue of
whether a use constitutes a private nuisance ordinarily turns on
questions of fact.”
Cangemi III at *8; *10 (internal quotation
15
marks and citation omitted).
However, after presiding over the
trial and hearing all the evidence, the Court finds that the
evidence does not establish that the Town had the requisite intent,
primarily because it did not act or engage in conduct.
Further,
its failure to act is not a basis for imposing liability because
it had no control over the jetties and thus no legal responsibility
to act.
Clearly,
under
the
three
possible
theories
of
intentional private nuisance, the Town did not (1) act for the
purpose of interfering with the Plaintiffs’ use and enjoyment of
their property, (2) know that the interference would result or was
substantially certain to result from the conduct, or (3) become
aware that the conduct was causing substantial interference and
nevertheless continue it.
As to the second two prongs, while the
Town may have been aware of what was happening to Plaintiffs’
properties, it engaged in no conduct such that it would be aware
that it had a responsibility to fix it.
2.
Negligent Nuisance
Under New York private nuisance law, a plaintiff may
show that the defendant’s interference was either “(1) intentional
and unreasonable” or “(2) negligent or reckless.”
Inc., 41 N.Y.2d at 569, 362 N.E.2d at 972.
Copart Indus.,
As already discussed,
interference is “intentional when the actor (a) acts for the
purpose of causing it; or (b) knows that it is resulting or is
16
substantially certain to result from his conduct.”
362
N.E.2d
omitted).
at
972–73
(internal
quotation
marks
Id. at 571,
and
citation
On the other hand, “whenever a nuisance has its origin
in negligence, negligence must be proven.”
Id. at 569, 362 N.E.2d
at 972 (internal quotation marks and citations omitted).
“A
nuisance based on negligence is but a single wrong, whether
characterized as negligence or nuisance.”
Trulio v. Vill. of
Ossining, 153 A.D.3d 577, 579, 59 N.Y.S.3d 449, 452 (2d Dept.
2017).
The
jury
was
instructed
not
to
nuisance if it found intentional nuisance.
elements
of
negligent
nuisance
as
an
consider
negligent
In considering the
alternative
theory
of
liability, the Court finds that the evidence did not establish
negligent nuisance either.
“Duty is an essential element of negligence.”
Sunlight
Clinton Realty, LLC v. Gowanus Indus. Park, Inc., 165 A.D.3d 866,
867, 86 N.Y.S.3d 617, 619 (2d Dept. 2018).
In Sunlight, the
Appellate Division found that a neighboring defendant’s conduct in
allowing its bulkhead to fall into disrepair, which allegedly
caused “the ebb and flow of the tides through the failed portions”
to create sinkholes in the plaintiff’s property, was not negligent
nuisance.
prevent
the
The court held that “the defendant had no duty to
natural
encroachment
plaintiff’s] property.”
of
public
waters
upon
[the
Id. at 867, 86 N.Y.S. 3d at 620; see also
17
Chaikin v. Karipas, 162 A.D.3d 842, 843, 80 N.Y.S.3d 108, 110-11
(2d
Dept.
2018)
(where
the
defendant’s
property
damaged
the
plaintiff’s adjacent retaining wall, in addition to not alleging
conduct, “the complaint [also] did not allege facts which, if
proven, would establish that the defendants breached a duty of
care to maintain their property, so as to set forth a cognizable
cause of action alleging negligence.”).
In the context of an
easement, “the imposition of a duty on an owner depends on whether-in light of the rights granted under the easement, as well as the
activities
undertaken
pursuant
to
those
rights--the
dominant
owner[, here, the federal government,] has sufficient control to
warrant treatment as a landowner for tort purposes. This notion is
consistent with New York decisions imposing liability on easement
holders and with the general rule governing the imposition of a
duty for premises liability.”
Sutera, 86 F. 3d at 305 (collecting
New York state cases).
As discussed above, the Town had no control over the
jetties and thus it had no duty to prevent the jetties from
damaging or interfering with Plaintiffs’ properties.
The easement
was granted to the federal government to “insure the permanent
dedication [of the Harbor] to the uses and purposes of a public
navigable waterway.”
(Correction Deed at ECF p. 2.)
Thus, as the
dominant owner, the federal government is required to exercise
control to effectuate the purpose of the easement.
18
The Town’s
corresponding lack of control over the jetties eliminates any duty
to address their impact on Plaintiffs’ property.
3.
Trespass
“Under
New
York
law,
invasion of another’s property.”
554, 557 (2d Cir. 1996).
trespass
is
the
intentional
Scribner v. Summers, 84 F.3d
“The invasion of, or intrusion upon, the
property interest ‘must at least be the immediate or inevitable
consequence of what the defendant willfully does, or which he does
so negligently.’”
Behar v. Quaker Ridge Golf Club, Inc., 118
A.D.3d 833, 835, 988 N.Y.S.2d 633, 635 (2d Dept. 2014) (quoting
Phillips v. Sun Oil Co., 307 N.Y. 328, 331, 121 N.E.2d 249, 251
(1954)); see also Chaikin, 162 A.D.3d at 843, 80 N.Y.S.3d at 111
(“the plaintiffs failed to allege an intentional entry onto the
plaintiffs’ property, as the complaint merely claimed that the
defendants’ property was causing the plaintiffs’ wall to lean”).
This
Court
has
already
explained
that
the
Town
did
not
act
intentionally and willfully or negligently; for the same reasons,
no reasonable fact-finder could have found it liable for the
intrusion of water upon Plaintiffs’ property.
II.
Rule 59 Motion5
Under Federal Rule of Civil Procedure 50(c), the Court is
required to address the Town’s motion for a new trial despite
its ruling that the Town is entitled to judgment as a matter of
law. See FED. R. CIV. P. 50(c)(1).
5
19
In the alternative, the Town moves for a new trial
pursuant to Rule 59.
If this Court’s decision to grant the Town’s
Rule 50 motion for judgment as a matter of law is later reversed
or vacated on appeal, the Court would grant the motion for a new
trial.
A.
Standard
A district court may grant a new trial under Federal
Rule of Civil Procedure 59 when the “court is ‘convinced that the
jury has reached a seriously erroneous result or that the verdict
is a miscarriage of justice.’”
Kogut v. Cty. of Nassau, Nos. 06-
CV-6695, 06-CV-6720, 2013 WL 3820826, at *2 (E.D.N.Y. July 22,
2013) (quoting Tesser v. Bd. of Educ. of City Sch. Dist. of City
of N.Y., 190 F. Supp. 2d 430, 440 (E.D.N.Y. 2002)).
On a Rule 59
motion, the district court is permitted to “weigh the evidence”
and, unlike a motion under Rule 50, “need not view the evidence in
the light most favorable to the verdict winner.”
Raedle v. Credit
Agricole Indosuez, 670 F.3d 411, 418 (2d Cir. 2012) (citation
omitted). Courts in this Circuit have characterized the Rule 59(a)
standard as “‘less stringent’” than the standard for granting
judgment as a matter of law under Rule 50, because, among other
reasons, the district court may grant a new trial “‘even if there
is substantial evidence supporting the jury’s verdict.’”
Tatum v.
Jackson, 668 F. Supp. 2d 584, 598 (S.D.N.Y. 2009) (quoting Manley
v. AmBase Corp., 337 F.3d 237, 244 (2d Cir. 2003)).
20
B.
Analysis
For the same reasons already discussed with respect to
the Rule 50 motion, the Court finds that the verdict was against
the weight of the evidence.
The Town did not control the jetties,
could not and did not engage in conduct, and lacked the requisite
intent.
See Burris v. Nassau Cty., 332 F. Supp. 3d 596, 610
(E.D.N.Y. 2018) (“If [the court] did not grant the Rule 50 motion,
at the very least, [the court] would grant a new trial . . .
because the jury’s finding is against the weight of the evidence
and a manifest injustice.”) (citations omitted).
In weighing the
evidence, moreover, the Court is permitted to address an additional
factor typically reserved to the fact-finder: whether the Town’s
behavior was reasonable.
Whether the Town acted reasonably is an
element of private nuisance.
Copart Indus., Inc., 41 N.Y.2d at
570, 394 N.Y.S.2d at 173.
The jetties themselves, which Plaintiffs argue are the
private nuisance, are reasonable.
They are necessary to keep the
inlet open for navigational purposes. The inlet is the only harbor
of refuge for 50 miles.
(See Trial Tr. 904.)
The United States
Coast Guard’s operations could be jeopardized without the inlet.
(Trial Tr. 514.)
In addition to providing a safe navigational
waterway, the inlet is a crucial component of the East End’s
fishing industries and economy.
21
Though it did not control the jetties, the Town did make
many attempts to remedy the situation that were rejected by
landowners.
As
early
as
1975,
residents
lodged
“strenuous
objections” to the Army Corps placing dredge spoils “on the eastern
side of the jetties.”
(Letter from Town Supervisor Judith Hope to
Army Corps Chief Louis W. Pinata, Defs.’ Trial Ex. V-1, D.E. 2105.)
Later residents expressed that they did not want the Army
Corps to perform a project if it required them to allow public
access to the beach.
(see, e.g. Trial Tr. 220-22, 1746-47, 1758.)
Proposals to truck sand from the east side to the west side were
voted down by the Town Board after public comment.
719-20.)
(see Trial Tr.
The Court finds that because (1) the jetties were
necessary and served a greater public good, (2) Plaintiffs bought
their homes long after the jetties were built, and (3) the Town
attempted to work with the Plaintiff landowners to address the
erosion situation, the Town’s actions were reasonable.6
While the Court does not find the amount of compensatory
damages themselves to be excessive, the Court finds they are
excessive as to the Town. As the Court has already explained at
length why the Town is not liable here, it follows that any
damages against it are excessive. Any amount is too high for a
non-responsible party. The Court found the Plaintiff homeowners
to be credible witnesses and does not doubt that their submitted
expenses were accurate. However, the Town should not be
responsible for these expenses, and the Court would also order a
new trial based on damages. See Frank Sloup and Crabs
Unlimited, LLC v. Loeffler, 745 F. Supp. 2d 115, 136 (E.D.N.Y.
2010) (Rule 59 discretion to order a new trial “‘includes
overturning verdicts for excessiveness’” and “if the trial judge
identifies a specific error, ‘the court may set aside the
6
22
CONCLUSION
For the foregoing reasons, Defendant’s Rule 50 motion
for judgment as a matter of law is GRANTED and the compensatory
damages award is VACATED.
Alternatively, the Court conditionally
GRANTS Defendant’s Rule 59 motion for a new trial.
SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:
March
15 , 2019
Central Islip, New York
resulting award even if its amount does not shock the
conscience’”) (quoting Gasperini v. Ctr. for Humanities, Inc.,
518 U.S. 416, 433, 116 S. Ct. 2211, 135 L. Ed. 2d 659 (1996);
Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 165 (2d Cir. 1998).
23
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