Dolan v. The New Hyde Park Fire District et al
Filing
108
ORDER denying 98 Motion for New Trial. For the reasons set forth herein, the Court concludes that defendants have failed to set forth any grounds for relief under Rules 50 or 59 of the Federal Rules of Civil Procedure. Ordered by Judge Joseph F. Bianco on 12/21/2017. (Karamigios, Anna)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 13-CV-5651 (JFB)(SIL)
_____________________
MICHAEL DOLAN, SR., ET AL.,
Plaintiffs,
VERSUS
THE NEW HYDE PARK FIRE DISTRICT, ET AL.,
Defendants.
___________________
MEMORANDUM AND ORDER
December 21, 2017
_______________________
JOSEPH F. BIANCO, District Judge:
imprisonment. 1
Plaintiffs Michael Dolan, Sr. (“Dolan
Sr.”) and Michael Dolan, Jr. (“Dolan Jr.,”
and, together with Dolan Sr., “plaintiffs”)
brought this action against the County of
Nassau (the “County”), Detective James P.
Gilroy (“Detective Gilroy”), and Detective
Thomas Walker (“Detective Walker”), as
well as the New Hyde Park Fire District (the
“District”), Commissioner Richard Stein
(“Commissioner Stein”), Commissioner
John DiVello (“Commissioner DiVello”),
Commissioner
Michael
Bonura
(“Commissioner Bonura”), Commissioner
John Brown (“Commissioner Brown”),
Commissioner
John
Waldron
(“Commissioner Waldron”), and Robert
Von Werne (together, “defendants”). The
amended complaint asserted violations of 42
U.S.C. § 1983 and New York state law
based upon alleged First Amendment
violations, abuse of process, malicious
prosecution,
and
false
arrest/false
A jury trial on plaintiffs’ claims took
place from March 9, 2017 through March
28, 2017. The jury returned a verdict in
favor of plaintiffs on their claims for
malicious prosecution and abuse of process
against the District and Commissioners
Stein, DiVello, Bonura, and Brown. The
jury awarded Dolan Sr. $150,000 in
1
On September 31, 2015, the County, Detective
Gilroy, and Detective Walker were dismissed from
the action. (ECF No. 31.) In addition, on March 10,
2016, the Court granted Commissioner Waldron’s
motion for summary judgment as to the abuse of
process claim, the federal malicious prosecution
claim, and Dolan Jr.’s state malicious prosecution
claim; and granted defendants’ motion for summary
judgment as to Dolan Sr.’s First Amendment
retaliation claim. (ECF Nos. 34, 35.) However, in
light of the Supreme Court’s decision in Heffernan v.
City of Paterson, New Jersey., 136 S. Ct. 1412
(2016), the Court subsequently granted plaintiffs’
motion to reconsider the Court’s ruling as to Dolan
Sr.’s First Amendment retaliation claim, and
reinstated that claim. (ECF No. 46.)
clearly existed in the record to satisfy that
requirement based upon the defendants’
utilization of the process (i.e., the arrest) to
bring
departmental
charges
against
plaintiffs. Although this Court ruled that the
disciplinary proceeding could not itself
constitute the necessary “process” for this
claim, the Court did not rule that the
departmental charges could not be the basis
for the collateral objective, or the basis for
any requirement that some improper use of
the process must occur after the issuance of
the process. Given the uncontroverted
evidence that the process was used to bring
departmental charges (and the ability for the
jury to find that such action was both
improper and the basis for the collateral
objective), any alleged failure to instruct the
jury on this alleged legal requirement was
harmless.
compensatory damages and $30,000 in
punitive damages against Commissioner
The jury awarded Dolan Jr.
Stein. 2
$400,000 in compensatory damages,
$30,000 in punitive damages against
Commissioner Stein, and $5,000 each in
punitive damages against Commissioners
DiVello, Bonura, and Brown.
Presently before the Court is defendants’
motion for judgment as a matter of law
pursuant to Federal Rule of Civil Procedure
50 as to liability and as to the jury’s award
of punitive damages, or a new trial as to
both liability and damages pursuant to
Federal Rule of Civil Procedure 59. 3 In
short, defendants argue that the Court’s jury
instructions relating to the abuse of process
and malicious prosecution claims were
erroneous; that there was insufficient
evidence supporting the jury’s finding that
defendants’ acted maliciously and its
resulting punitive damages award; and that
the damages awards were excessive. The
Court disagrees.
Second, with respect to the jury
instructions on the malicious prosecution
claim, the Court concludes that defendants’
argument regarding the “probable cause”
instruction
is
entirely unpersuasive.
Contrary to defendants’ contention, the
Court properly instructed the jury that the
“probable cause” analysis related to the
felony crime that plaintiff was actually
charged with—namely, Grand Larceny in
the Third Degree—rather than some lesser
crime such as theft. Here, a rational jury
could have found: (1) that Commissioner
Stein told the police that plaintiffs had
removed 65 smoke detectors from the
firehouse worth $50 (for a total value of
$3,250), even though Chief Murray valued
them at $10 each, and Commissioner Stein
later admitted at his deposition that they
were valued at $20-30 each; and (2) that
Commissioner Stein provided that false
information concerning the value of the
detectors intentionally and maliciously in
order to reach the threshold of $3,000
required to charge plaintiffs with a felony—
which is exactly what the police did—so
First, with respect to the jury instructions
regarding abuse of process, any argument
that the Court should have instructed that the
jury had to find improper use of the process
after plaintiffs were arrested has been
waived by defendants (because it was not
raised at trial), and the Court finds no
manifest injustice will result from enforcing
that waiver. In any event, even assuming
arguendo that such a requirement exists for
an abuse of process claim, such evidence
2
With respect to Dolan Sr., the jury found that
punitive damages were warranted against only
Commissioner Stein on the malicious prosecution
claims and as to all defendants on the abuse of
process claims, but imposed $0 as to Commissioners
DiVello, Bonura, and Brown. (See ECF No. 87
(verdict sheet).)
3
Defendants also request that, should the Court
decline to order a new trial, it should order remittur
of plaintiffs’ compensatory damages awards.
2
automatically expelled from the fire
department. In addition, defendants argue
that there was no basis for the jury to find
the other defendants (Commissioners
Bonura, DiVello, and Brown) also acted
maliciously such that punitive damages (in
the amount of $5,000 each) was warranted.
The Court disagrees. There is evidence in
the record that, inter alia, (1) these
Commissioners approved of Commissioner
Stein contacting the police regarding the
detectors,
(2)
after
the
arrest,
Commissioners Brown, Stein, and Bonura
went to the District Attorney’s Office to
discuss the charges, including the value of
the detectors (although Commissioner
Bonura testified that they told the prosecutor
during the meeting that they did not know
the value, despite Commissioner Stein’s
prior sworn statement that they were worth
$50 each), and (3) Commissioner DiVello
testified that he knew that plaintiffs would
be removed from the fire department
automatically if there was a felony
conviction.
that plaintiffs could be removed from the
fire department under the disciplinary rules.
Defendants argue that they should not be
held responsible for the “uncontrolled
choice” of the police to charge the felony.
However, under the particular circumstances
of this case, the police’s charging decision
was far from uncontrolled. There was more
than sufficient evidence from which the jury
could rationally conclude that the police
decided
to
charge
exactly
what
Commissioner Stein hoped that they would
charge, and that Commissioner Stein
intentionally and maliciously provided false
information to initiate and support that
specific charge (in the form of a supporting
deposition). For instance, the police officer
testified that he had no independent
information regarding the value of the fire
detectors other than what Commissioner
Stein told him. Accordingly, the Court
properly instructed the jury that the
“probable cause” analysis related to the
felony charge, not some lesser charge. To
hold otherwise would allow a private actor
to supply false information for the specific
reason of encouraging the police to initiate a
prosecution for an extremely serious offense
to avoid liability for malicious prosecution
of that offense simply because there was
probable cause for some minor uncharged
offense. There is simply no legal basis for
such a rule as it relates to a malicious
prosecution claim under the circumstances
presented in this case.
Fourth, the Court finds no basis to
disturb the compensatory or punitive
damages awarded to plaintiffs by the jury.
As a threshold matter, given that plaintiffs
prevailed on the abuse of process and
malicious prosecution claims, the jury could
award damages for the arrest and
confinement prior to the arraignment. With
respect to Dolan Jr., the Court concludes
that it was not beyond the bounds of
reasonableness for the jury to award
compensatory damages in the amount of
$400,000 for his loss of liberty, his
emotional distress, and the reputational
damages caused by the arrest and
prosecution. At the trial, Dolan Jr., among
other things, testified that: (1) he was
searched and held at the police station for
eight hours, shackled to the wall; (2) his
felony arrest was reported on television, in
newspapers, and on the internet; and (3) he
Third, as noted above, there was more
than sufficient evidence from which a
rational jury could find that Commissioner
Stein acted maliciously—specifically, by
intentionally providing false information to
the police regarding the value of the
detectors
(and
other
circumstances
surrounding the removal of the detectors) for
the malicious purpose of having plaintiffs
charged with a felony which would allow
Commissioner Stein to have plaintiffs
3
22; 1464:7-15; 1473:6-19.) Commissioner
Stein did not identify plaintiffs or otherwise
inform the police as to who he believed
removed the detectors. (Tr. 257:7-17.)
Commissioner Stein signed a deposition
complaining of the alleged theft. (Pl.’s Ex.
20.)
agonized for months over the negative
impact that this charge would have over his
career and his life. With respect to Dolan
Sr., the Court similarly concludes that
$150,000 in compensatory damages is
within the range of reasonableness given the
evidence of his loss of liberty, emotional
distress, and reputational harm. The Court
also concludes that the award of punitive
damages is supported by the evidence in the
case and is reasonable. In short, in light of
all of the damages evidence, there was
nothing “conscience-shocking” about the
jury’s damages award, and the damages
were well within the reasonable range.
I.
After Commissioner Stein reported the
removal of the smoke detectors to the police,
he spoke with Dolan Sr. and encouraged him
to return the smoke detectors to avoid
prosecution. (Tr. 154:19-24; 704:4-7.)
Dolan Sr. failed to return the smoke
detectors, and he and Dolan Jr. were
subsequently arrested by the police.
(Tr. 118:16-22; 154:19-24; 184:2; 186:5-9;
186:17-187:2.) Later, departmental charges
were brought against plaintiffs for the
removal of the smoke detectors. A hearing
was held in January of 2013, and resulted in
the recommendation that Dolan Jr. be
reinstated as a firefighter and Dolan Sr. be
discharged. The Board of Commissioners
voted to accept the recommendation.
BACKGROUND 4
A. Factual Background
The Court assumes familiarity with the
facts of this case, but provides a brief
overview for purposes of the instant motion.
On June 21, 2012, plaintiffs removed a
number of smoke detectors from the
firehouse. Commissioner Stein, acting as
Chairman of the Board of Commissioners,
reported the alleged theft to the Suffolk
County Police Department. Commissioner
Stein made incorrect statements as to the
value and/or number of the removed smoke
detectors.
(Tr.
712:18-714:10.)
Commissioner Stein was the only
commissioner-defendant who contacted the
police in connection with the smoke detector
removal. (Tr. 281:17-293:19; 370:1-21;
392:5-23; 420:8-13; 516:15-518:8; 1444:19-
B. Procedural Background
As noted above, trial concluded in the
instant case on March 28, 2017. Defendants
moved for judgment as a matter of law
under Rule 50 as to liability and punitive
damages, or to set aside the verdict and for a
new trial under Rule 59 on May 24, 2017
(ECF No. 98), and submitted a revised brief
on May 25, 2017 (ECF No. 101). Plaintiffs
filed their opposition to the motion on July
5, 2017. (ECF No. 105.) Defendants
replied on July 21, 2017. (ECF No. 107.)
The Court has fully considered the parties’
submissions.
4
Although defendants cite to post-trial public
statements made by members of the Dolan family
about the verdict (see Defs.’ Br. 3-4), the Court finds
those statements to be irrelevant to the legal issues
before the Court in the post-trial motions. Plaintiffs’
request that the Court strike the supporting affidavits
and admonish counsel for the inclusion of this
material. (Pls.’ Br. 23.) However, in its discretion,
the Court concludes that there is no need to strike
them from the record, nor to admonish counsel.
II.
STANDARD OF REVIEW
A. Rule 50
The standard governing motions for
judgment as a matter of law pursuant to Rule
4
minded [persons] could not arrive at
a verdict against [it].
50 is well-settled. A court may not properly
grant judgment as a matter of law under
Rule 50 against a party “unless the evidence,
viewed in the light most favorable to the
nonmoving party, is insufficient to permit a
reasonable juror to find in his favor.” Arlio
v. Lively, 474 F.3d 46, 51 (2d Cir. 2007)
(citing Galdieri-Ambrosini v. Nat’l Realty &
Dev. Corp., 136 F.3d 276, 289 (2d Cir.
1998)). Generally, a court reviewing such a
motion must defer to all credibility
determinations and reasonable inferences
that the jury may have drawn at trial. See
Frank Sloup & Crabs Unltd., LLC v.
Loeffler, 745 F. Supp. 2d 115, 120
(E.D.N.Y. 2010).
That is, a court
considering a Rule 50 motion “may not
itself weigh the credibility of witnesses or
consider the weight of the evidence.” Meloff
v. N.Y. Life Ins. Co., 240 F.3d 138, 145 (2d
Cir. 2001) (quoting Galdieri-Ambrosini, 136
F.3d at 289); see also Playtex Prods., Inc. v.
Procter & Gamble Co., 02 Civ. 8046
(WHP), 2004 U.S. Dist. LEXIS 14084, at
*5-6 (S.D.N.Y. July 26, 2004) (“A Rule
50(b) motion cannot be granted ‘if, drawing
all reasonable inferences in favor of the
nonmoving party and making all credibility
assessments in his favor, there is sufficient
evidence to permit a rational juror to find in
his favor.’” (quoting Sir Speedy, Inc. v. L&P
Graphics, Inc., 957 F.2d 1033, 1039 (2d Cir.
1992))).
Advance Pharm., Inc. v. United States, 391
F.3d 377, 390 (2d Cir. 2004) (alterations in
original) (quoting Galdieri-Ambrosini, 136
F.3d at 289); see also Kinneary v. City of
N.Y., 601 F.3d 151, 155 (2d Cir. 2010)
(same); This is Me, Inc. v. Taylor, 157 F.3d
139, 142 (2d Cir. 1998) (stating that a court
assessing a Rule 50 motion must consider
whether “the evidence is such that, without
weighing the credibility of witnesses or
otherwise considering the weight of the
evidence, there can be but one conclusion as
to the verdict that reasonable [people] could
have reached” (quoting Cruz v. Local Union
No. 3, Int’l Bd. of Elec. Workers, 34 F.3d
1148, 1154-55 (2d Cir. 1994))). In other
words, this Court may only grant
defendants’ Rule 50 motion “if it cannot
find sufficient evidence supporting the
jury’s verdict.” Playtex Products, 2004 U.S.
Dist. LEXIS 14084, at *6; see also Black v.
Finantra Capital, Inc., 418 F.3d 203, 209
(2d Cir. 2005) (“A court evaluating . . . a
motion [for judgment as a matter of law]
cannot assess the weight of conflicting
evidence, pass on the credibility of the
witnesses, or substitute its judgment for that
of the jury.”). For this reason, a party
moving to set aside a jury verdict must clear
“a high bar.” Lavin-McEleney v. Marist
College, 239 F.3d 476, 479 (2d Cir. 2001).
Thus, judgment as a matter of law is
appropriately granted where:
B. Rule 59
A court may grant a new trial in a jury
case for any of the reasons “for which a new
trial has heretofore been granted in an action
at law in federal court.” Fed. R. Civ. P.
59(a). The decision whether to grant a new
trial under Rule 59 “is ‘committed to the
sound discretion of the trial judge.’” Stoma
v. Miller Marine Servs., Inc., 271 F. Supp.
2d 429, 431 (E.D.N.Y. 2003) (quoting
Metromedia Co. v. Fugazy, 983 F.2d 350,
(1) there is such a complete absence
of evidence supporting the verdict
that the jury’s findings could only
have been the result of sheer surmise
and
conjecture,
or
(2) there is such an overwhelming
amount of evidence in favor of the
movant that reasonable and fair
5
conditioned on the verdict winner’s refusal
to agree to a reduction (remittitur).”
Gasperini v. Ctr. for Humanities, Inc., 518
U.S. 415, 433 (1996); accord Rangolan v.
County of Nassau, 370 F.3d 239, 244 (2d
Cir. 2004); Bracey v. Bd. of Educ. of City of
Bridgeport, 368 F.3d 108, 117 (2d Cir.
2004). As the Second Circuit has instructed,
“[w]here there is no particular discernable
error, we have generally held that a jury’s
damage award may not be set aside as
excessive unless ‘the award is so high as to
shock the judicial conscience and constitute
a denial of justice.’” Kirsch v. Fleet St.,
Ltd., 148 F.3d 149, 165 (2d Cir. 1998)
(quoting O’Neill v. Krzeminski, 839 F.2d 9,
13 (2d Cir. 1988)). However, if the trial
judge identifies a specific error, “the court
may set aside the resulting award even if its
amount does not ‘shock the conscience.’”
Id. In reviewing a claim that a jury’s
damages award was excessive, the court
must “accord substantial deference to the
jury’s determination of factual issues.”
Martell v. Boardwalk Enters., 748 F.2d 740,
750 (2d Cir. 1984). Moreover, “the trial
judge is not called upon to say whether the
amount is higher than he [or she] personally
would have awarded.” Dagnello v. Long
Island R.R., 289 F.2d 797, 806 (2d Cir.
1961).
363 (2d Cir. 1992)). Thus, “[a] new trial
may be granted . . . when the jury’s verdict
is against the weight of the evidence.” DLC
Mgmt. Corp. v. Town of Hyde Park, 163
F.3d 124, 133 (2d Cir. 1998).
In contrast to a motion for judgment as a
matter of law, a court may grant a motion
for a new trial “even if there is substantial
evidence supporting the jury’s verdict.” Id.
at 134. Additionally, “a trial judge is free to
weigh the evidence himself, and need not
view it in the light most favorable to the
verdict winner.” Id. (citing Song v. Ives
Labs., Inc., 957 F.2d 1041, 1047 (2d Cir.
1992)). A court considering a Rule 59
motion for a new trial, however, “must bear
in mind . . . that the court should only grant
such a motion when the jury’s verdict is
‘egregious.’” Id. For this reason, “[a]
motion for a new trial ordinarily should not
be granted unless the trial court is convinced
that the jury has reached a seriously
erroneous result or that the verdict is a
miscarriage of justice.” Munafo v. Metro.
Transp. Auth., 381 F.3d 99, 105 (2d Cir.
2004) (quoting Atkins v. New York City, 143
F.3d 100, 102 (2d Cir. 1998)); see also
Patrolmen’s Benevolent Ass’n of N.Y.C. v.
City of New York, 310 F.3d 43, 54 (2d Cir.
2002). Furthermore, “[w]here the resolution
of the issues depended on assessment of the
credibility of the witnesses, it is proper for
the court to refrain from setting aside the
verdict and granting a new trial.” Fugazy,
983 F.2d at 363; see also DLC Mgmt. Corp.,
163 F.3d at 134 (“[A] court should rarely
disturb a jury’s evaluation of a witness’s
credibility.”).
The compensatory damages awarded to
Dolan Sr. in this case, however, were
awarded based on the finding of liability on
parallel federal and state law claims. “A
federal court, in reviewing the amount of
damages awarded on a state law claim, must
apply New York law.”
Patterson v.
Balsamico, 440 F.3d 104, 119 (2d Cir. 2006)
(citing Gasperini, 518 U.S. at 430-31 and
Cross v. N.Y.C Transit Auth., 417 F.3d 241,
258 (2d Cir. 2005)). “New York law
provides that the appellate division
‘reviewing a money judgment . . . in which
it is contended that the award is excessive or
inadequate . . . shall determine that an award
With respect to damages, it is well
settled that, pursuant to Rule 59, a trial judge
has the discretion to grant a new trial if the
verdict is against the weight of the evidence,
and “[t]his discretion includes overturning
verdicts for excessiveness and ordering a
new trial without qualification, or
6
Although N.Y. C.P.L.R. § 5501(c)
requires “closer court review than the
common-law ‘shock the conscience’ test,”
Gasperini, 518 U.S. at 429, “[d]ue to the
uncertainties in calculating [non-economic]
damage awards, New York courts have
consistently held that deference to the jury’s
findings is required” in reviewing a jury’s
award. Cantu v. Flanigan, 705 F. Supp. 2d
220, 227 (E.D.N.Y. 2010); see also Levine
v. E. Ramapo Cent. Sch. Dist., 192 A.D.2d
1025, 1026 (N.Y. App. Div. 1993) (stating
that “considerable deference should be
accorded to the interpretation of the
evidence by the jury”).
is excessive or inadequate if it deviates
materially from what would be reasonable
compensation.’” Id. (alterations in original)
(quoting N.Y. C.P.L.R. § 5501(c)). The
Supreme Court has held that “the role of the
district court is to determine whether the
jury’s verdict is within the confines set by
state law, and to determine, by reference to
federal standards developed under Rule 59,
whether a new trial or remittitur should be
ordered.” Gasperini, 518 U.S. at 435
(quoting Browning-Ferris Indus. of Vt., Inc.
v. Kelco Disposal, Inc., 492 U.S. 257, 279
(1989)). 5
“To determine whether an award
‘deviates materially from what would be
reasonable compensation,’ New York state
courts look to awards approved in similar
cases.” Id. at 425. These awards, however,
are “not binding but instructive.” In re Joint
E. & S. Dist. Asbestos Litig., 9 F. Supp. 2d
307, 311 (S.D.N.Y. 1998); see also Senko v.
Fonda, 53 A.D.2d 638, 639 (N.Y. App. Div.
1976) (stating that prior awards are not
binding but that they “may guide and
enlighten the court and in a sense, may
constrain it”). “[The § 5501(c)] standard
requires a court to determine a reasonable
range and to take corrective action when the
particular jury award deviates materially
from that range.” Peterson v. County of
Nassau, 995 F. Supp. 305, 321 (E.D.N.Y.
1998).
III.
DISCUSSION
For the following reasons, the Court
denies defendants’ motions under Rules 50
and 59 in their entirety.
A. Rule 50 6
1. Abuse of Process
Defendants first argue that Rule 50 relief
is warranted because there was no evidence
of improper use of process after plaintiffs
were arrested, and, thus, there was not
evidence supporting the jury’s verdict as to
the abuse of process claim. (Defs.’ Br. 46.) 7 In particular, defendants assert that the
6
Defendants moved for judgment as a matter of law
as to punitive damages and liability at the close of
plaintiffs’ case. The Court denied the motion with
leave to renew after the jury reached its verdict.
5
The Supreme Court noted in Gasperini that the
quoted holding from Browning-Ferris referred to
punitive damages, but explained that “[f]or purposes
of deciding whether state or federal law is applicable,
the question whether an award of compensatory
damages exceeds what is permitted by law is not
materially different from the question whether an
award of punitive damages exceeds what is permitted
by law.” 518 U.S. at 435 n.18 (quoting Consorti v.
Armstrong World Indus., Inc., 72 F.3d 1003, 1012
(1995)).
Accordingly, this Court extends the
standard of review set forth in Gasperini, BrowningFerris, and Consorti to the instant motion.
7
Defendants appear to argue that the jury’s failure to
impose punitive damages against Commissioners
Bonura, DiVello, and Brown for malicious
prosecution, and much less than that imposed against
Commissioner Stein for abuse of process (as to Dolan
Jr.), leads to the conclusion that there was no
evidence of any misconduct by these particular
defendants. The lack of merit to this argument is
apparent on its face: the jury’s decision whether to
award punitive damages, and its decision as to the
appropriate amount of any punitive damages award,
is obviously completely distinct from its decision as
7
because they failed to raise it at trial, and
specifically failed to raise it in the
discussions concerning the jury instructions;
(2) proof of a defendant’s actions after
process was issued is not required to
establish an abuse of process claim;
(3) process was first issued when
Commissioner Stein filed the police report,
not when plaintiffs were arrested; and
(4) defendants did act following the arrest
because Commissioners Stein, Bonura, and
Brown, along with counsel, subsequently
met with the District Attorney to encourage
charges be pursued and continued to provide
false information.
only acts taken by defendants after plaintiffs
were arrested related to expelling plaintiffs
from the fire department.
(Id. at 5.)
Defendants argue that these acts cannot be
the basis for the abuse of process claim
because, first, the jury found the expulsion
was not retaliation for plaintiffs’ arrest, and,
second, the Court made clear that
defendants’ decision to initiate department
charges seeking plaintiffs’ expulsion could
not be the basis for the abuse of process
claim. (Id.) For these reasons, defendants
request that the Court overturn the verdict
finding liability on the abuse of process
claim and, separately, the imposition of
punitive damages.
(1)
As a threshold matter, the Court agrees
that defendants have waived this argument.
Defendants did not raise this issue before the
case was submitted to the jury for its
determination; they did not propose any jury
instructions in connection with it; and they
did not object to the relevant jury
instructions in the course of the lengthy
discussion in court of the instructions before
they were given to the jury. In this situation,
defendants have waived this argument
absent manifest injustice. See ING Global v.
United Parcel Serv. Oasis Supply Corp., 757
F.3d 92, 98 (2d Cir. 2014) (“At no point
prior to its post-judgment motion had UPS
raised its concerns about the jury
instructions on bad faith, or articulated to the
district court its two theories of bad faith
under Georgia law. . . . UPS failed to
preserve its contention that reasonable
grounds existed as a matter of law because it
did not move under Rule 50(a), nor did it
object under Rule 51 to the court’s charge
on ‘reasonable grounds.’”); see also e.g.,
Chen v. County of Suffolk, 927 F. Supp. 2d
58, 65-66 (E.D.N.Y. 2013). Indeed, the
parties extensively discussed the wording of
the abuse of process claim, and, after the
Court agreed to plaintiffs’ suggestion as to
setting forth the second and third elements
of the claim, defendants’ counsel stated he
In response, plaintiffs argue that
defendants waived this argument
to liability. In fact, even where a jury declines to
award any damages, that decision does not form a
basis upon which to question the validity of its
preceding finding of liability. See, e.g., Carey v.
Piphus, 435 U.S. 247, 266 (1978) (“By making the
deprivation of [constitutional] rights actionable
[under Section 1983] for nominal damages without
proof of actual injury, the law recognizes the
importance to organized society that those rights be
scrupulously observed.”); King v. Macri, 800 F.
Supp. 1157, 1162 (S.D.N.Y. 1992) (“[T]he failure to
award compensatory damages is not dispositive of
the question whether a plaintiff has suffered a
deprivation of his constitutional rights.”); see also
Uryevick v. Rozzi, 751 F. Supp. 1064, 1071
(E.D.N.Y. 1990) (“Punitive damages may be
awarded even in the absence of compensatory
damages.”). Here, there was evidence that (1)
Commissioners Bonura, DiVello, and Brown
approved having Commissioner Stein report the
information to the police that led to Dolan Jr.’s arrest
and prosecution, (2) Commissioners Brown and
Bonura, along with Commissioner Stein, met with the
Assistant District Attorney, and (3) Commissioner
DiVello knew that, if they were convicted of a
felony, plaintiffs would be automatically expelled
from the fire department. The Court concludes that
there was sufficient evidence against all defendants to
find maliciousness and to award the amount of
punitive damages that was imposed against each
individual defendant.
8
abused for purposes of an abuse of process
claim, because plaintiffs could not show any
collateral objective of those proceedings. In
particular, the Court rejected plaintiffs’
suggestion that the objective of firing
plaintiffs could be considered a collateral
objective of the departmental charges
because discipline (such as termination) is
the very objective of departmental charges.
However, the Court did not rule that the
departmental
charges,
which
uncontrovertibly occurred “after” plaintiffs’
arrest, 8 could not constitute a collateral
objective of plaintiffs’ arrest and thus satisfy
this element of the abuse of process claim.
In fact, wrongfully seeking to affect a
person’s employment is a collateral
objective that can form the basis of an abuse
of process claim. See, e.g., Levy v. City of
New York, 935 F. Supp. 2d 575, 592
(E.D.N.Y. 2013) (dismissing abuse of
process claim on malice prong, but
accepting “causing [plaintiff] to lose his job
as a teacher” as a satisfactory collateral
objective); OfficeMax Inc. v. Sousa, Civ.
No. 09-631 (P)(W), 2010 WL 2719074, at
*2 (D. Me. July 7, 2010) (denying motion to
dismiss claim where collateral objective
alleged was causing plaintiffs’ employer to
fire them); see also Hernandez v. Wells, 01
Civ. 4376 (MBM), 2003 WL 22771982, at
*9 (S.D.N.Y. Nov. 18, 2003) (finding
collateral objective met where defendant
fabricated assault charges to save his job
because
“safeguarding
one’s
own
employment lies outside the legitimate goal
of criminal process”). Moreover, assuming
arguendo that the law required evidence of
improper use of process after the arrest, the
departmental charges would have clearly
had no objection. (Tr. 849:6-864:20.) As
the Court discusses in greater detail below,
considering the evidence in the light most
favorable to plaintiffs, and giving plaintiffs
the benefit of all reasonable inferences that
the jury might have drawn in its favor, the
Court concludes that a jury, though not
compelled to do so, could have found the
collateral objective requirement was met
based upon the departmental charges
instituted against plaintiffs, and there was no
legal error in the jury instructions. Under
these circumstances, there is no injustice and
certainly no manifest injustice. ING Global,
757 F.3d at 98-99 (“If UPS preferred a more
nuanced or specific definition, it was
obligated to request one.”).
Even assuming defendants did not waive
this argument, there was no error in the
Court’s instructions. Defendants ignore a
key theory as to the collateral objective
element of the abuse of process claim that
was advanced by plaintiffs at trial, which
was based upon defendants’ ultimate
expulsion of plaintiffs from the fire
department in light of their pending felony
charge. In particular, at trial, plaintiffs
argued to the jury “that the collateral
objective [of initiating criminal charges
against plaintiffs] that [defendants] were
trying to achieve was to get [plaintiffs]
kicked out of the department.” (Tr. 969:1820.) Therefore, to the extent defendants
argue there was no evidence of improper use
of process after plaintiffs’ arrests, the Court
disagrees.
Contrary to defendants’ assertion (Defs.’
Br. 5), the Court did not rule that
defendants’ decision to initiate and pursue
departmental charges against plaintiffs
seeking their expulsion could not form part
of plaintiffs’ abuse of process claim.
Instead, the Court ruled that the initiation
and pursuit of departmental charges against
plaintiffs could not be the process that was
8
In light of this analysis, the Court need not decide
whether defendants are correct as a matter of law that
there must be some action taken by defendants after
process is initiated to sustain an abuse of process
claim, which plaintiffs contest.
9
satisfied that element. 9
2. Malicious Prosecution
In addition, the Court rejects defendants’
contention that “[t]he jury . . . returned a
contradictory verdict in favor of the
Defendants respecting Plaintiffs’ first two
counts by finding that after their arrests the
Defendants did not retaliate against the
Plaintiffs by expelling them from the fire
department.” (Defs.’ Br. 5.) The jury’s
verdict only referenced retaliation in the
context of the First Amendment, namely,
(1) Dolan Sr.’s First Amendment retaliation
claim based upon his free speech (or
perceived free speech) and his intimate
association with his spouse, and (2) Dolan
Jr.’s First Amendment retaliation claim
based upon his intimate association with his
father and/or mother. (See ECF No. 88,
Court Ex. E, at 88-91.) Thus, although the
jury found defendants were not liable for
alleged retaliation in the First Amendment
context, such a finding is not inconsistent
with a finding that defendants filed the
criminal complaint in order to obtain the
collateral
objective
of
initiating
departmental charges against plaintiffs.
Defendants argue that the jury’s verdict
as to the malicious prosecution claims
should be overturned because the Court
erroneously instructed the jury that the
probable cause element of the malicious
prosecution claims would be met if
defendants lacked probable cause to initiate
criminal proceedings for the charge of
Grand Larceny in the Third Degree—the
crime with which plaintiffs were charged—
as opposed to probable cause that any theft
occurred. (Defs.’ Br. 8.) 11
Defendants argue that the Second
Circuit’s decision in Rothstein v. Carriere,
373 F.3d 275 (2d Cir. 2004) supports their
position. However, Rothstein does not stand
Board’s authority, and that the other Board members
knew of this action and did not provide relevant
information to the police that may have resulted in
the police deciding not to arrest plaintiffs. Based
upon this evidence, the jury could have found the
requisite intent to establish liability for abuse of
process and malicious prosecution.
11
As defendants note, this instruction was based, in
part, on the Court’s review of Merkle v. Upper
Dublin Sch. Dist., 211 F.3d 782 (3d Cir. 2000). In
Merkle, the Third Circuit rejected the notion that,
because a police officer may have probable cause to
arrest based upon false information knowingly
supplied by a third party, and thus that officer would
be immune from a malicious prosecution suit, the
third party in turn would be immune from suit.
Defendants take issue with the Court’s application of
the Merkle case because it did not provide guidance
as to appropriate jury instructions. (Defs.’ Br. 9.)
However, the Court cited Merkle for the proposition
that private actors can be responsible for charging
decisions that are based upon false information that is
maliciously provided by the private actor to initiate
the prosecution. Although not discussed in Merkle,
to the extent that defendants argue that a different
probable cause standard should be applied to private
actors for malicious prosecution claims—namely,
whether there is probable cause for the any crime,
rather than the crime charged based upon the false
information provided by the private actor—the Court
rejects the argument for the reasons discussed herein.
In sum, defendants waived their
argument as to the abuse of process claim,
and, in any case, it fails on the merits. 10
9
Plaintiffs also point to the evidence that
Commissioners Stein, Bonura, and Brown
subsequently met with the prosecutor after the arrests
to talk about proceeding on the charges.
Commissioner Bonura testified that the value of the
detectors was discussed at the meeting, but that they
did not know the detectors’ value. (Tr. 367:18370:21.)
10
The Court also rejects defendants’ argument, which
is not supported by any legal authority, that the intent
element of abuse of process and malicious
prosecution claims was not met as to either claim
because Dolan Sr. “was given the chance to avoid
criminal proceedings, but refused it.” (Defs.’ Br. 15.)
Here, there was evidence that Commissioner Stein
provided false information to the police with the
10
Further, the Court finds no basis to
deviate from this precedent in the case of
private individuals under the particular
circumstances of this case. Defendants
invite the Court to do so because the
Restatement of Torts states, in relevant part,
that a person who does not initiate criminal
proceedings may generally procure their
initiation and ultimately be liable for
malicious prosecution; however, no such
procurement exists where the person who
initiates the prosecution has the uncontrolled
discretion to so initiate it. (See Defs.’ Br. 910 (citing Rest. Torts § 653, cmt. b).) In
support of this argument, defendants note
that Commissioner Stein did not specifically
report plaintiffs as the culprits; he, along
with the other commissioners, were willing
to forego arrest and prosecution; and Dolan
Sr. did not contradict Commissioner Stein’s
testimony that the police asked for plaintiffs’
cooperation. (Defs.’ Br. 10.) In light of
this, defendants argue that the police “acted
as they saw ‘fit’ and they could and perhaps
did engage in further investigation”
following Commissioner Stein’s complaint.
(Id.) This argument fails. Plaintiffs point to
another provision that vitiates defendants’
reliance on this provision of the
Restatement. (See Pls.’ Br. 11.) That
provision applies where, as here, a private
person gives a public official information of
another’s supposed criminal misconduct.
The provision states:
“[Where] the
information is known by the giver to be
false, an intelligent exercise of the officer’s
discretion becomes impossible and a
prosecution based thereon is procured by the
person giving the false information.” Rest.
Torts § 653 cmt. g.
for the proposition that the probable cause
element of a malicious prosecution claim is
not satisfied where there is probable cause
that a plaintiff committed any crime,
regardless of what crimes were ultimately
charged or the connection between those
charges and defendant’s false statements. In
fact, the opinion states on multiple occasions
that the probable cause requirement applies
to the charged crime. See, e.g., id. at 283
(“[T]he plaintiff must prove that there was
no probable cause for the criminal charge.”
(emphasis added)); id. (“A central issue in
this case was whether the prosecution in
question was initiated in the absence of
probable cause to believe the crimes
charged were committed by [plaintiff].”
(emphasis added)). 12 Indeed, in another
Second Circuit case, the Court explicitly
held that “a finding of probable cause to
arrest as to one charge does not necessarily
defeat a claim of malicious prosecution as to
other criminal charges . . . .” D’Angelo v.
Kirschner, 288 F. App’x 724, 726 (2d Cir.
2008); see also Torres v. Jones, 26 N.Y.3d
742 (2016) (“[T]he plaintiff in a malicious
prosecution action must also establish at trial
the absence of probable cause to believe that
he or she committed the charged crimes.”)
(emphasis added) (cited with approval, Keith
v. City of New York, 641 F. App’x 63, 67 (2d
Cir. 2016)).
12
Further, the Second Circuit in Rothstein took issue
with the jury instructions as to probable cause only
on the ground that they improperly focused on
whether probable cause existed based upon only the
false statements defendant made (and not whether it
existed when all information possessed by the police
was taken into account), and whether probable cause
existed at the time the statements were made (and not
when the prosecution was initiated). 373 F.3d at at
292-93. Here, the Court clearly instructed the jury
that it must take into consideration both the facts
known to the defendants, as well as any additional
facts independently possessed by the police, and that
its determination must focus on whether probable
cause existed “when the prosecution was initiated.”
(Jury Charge, ECF No. 72 at 26.)
This provision and the Court’s
instruction are aligned, and the evidence
adduced at trial shows that the jury’s verdict
was consistent with both. At trial, evidence
indicated that Commissioner Stein, with the
approval of the Board, provided information
11
information [regarding an alleged crime] is
received from a putative victim or an
eyewitness, probable cause exists . . . unless
the circumstances raise doubt as to the
person’s veracity.” Curley v. Village of
Suffern, 268 F.3d 65, 70 (2d Cir. 2001)
(citing Martinez v. Simonetti, 202 F.3d 625,
634 (2d Cir. 2000) and Singer v. Fulton Cty.
Sheriff, 63 F.3d 110, 119 (2d Cir. 1995)).
This Court’s holding does not expand, in
any way, that long-established rule of law.
In short, there was evidence as to each
element of malicious prosecution, and the
jury was well within its right to find liability
against all defendants on this claim.
he knew to be false, rendering intelligent
exercise of the police’s discretion
“impossible,” and the resulting prosecution
“procured by” defendants. See id. Further,
uncontroverted evidence showed that, but
for this information, plaintiffs would not
have been arrested or prosecuted. Thus,
defendants’ own cited source reveals that
their request is meritless.
In addition, the Court disagrees with
defendants’ policy-based arguments. These
include the assertion that denying their
motion to overturn the verdict will
discourage the reporting of crime, police
officers independently investigating a
reported crime, and/or prudent persons from
performing volunteer work, as well as their
assertion that public safety and order would
be jeopardized because, in essence, the
Court’s decision places the responsibility of
determining whether probable cause exists
on lay persons. (See Defs.’ Br. 12.) The
fact that the Court’s decision (and the legal
authority upon which it is based) only
applies where a private individual
knowingly provides false information to the
police reveals the hollowness of defendants’
arguments. It is not plausible that potential
liability for providing false statements to the
police would discourage volunteerism or the
reporting of crime.
Further, although
Rothstein highlighted the importance of
avoiding deterring persons from providing
truthful information through expansive rules
created to punish the provision of false
information, the Second Circuit also stressed
that the additional requirements of malicious
prosecution claims—such as lack of
probable cause and initiation by the
defendant—protected defendants whose
only wrongdoing was telling lies to the
police. 373 F.3d at 295. Finally, there is no
merit to defendants’ contention that the
Court’s position will discourage police from
independently investigating a reported
crime. It is already well-settled that “[w]hen
Finally, the Court notes that it did not
prevent counsel for defendants from arguing
to the jury that the defendants’ inability to
control the charging decision by the police
was evidence that they did not maliciously
want plaintiffs to be arrested for a felony. In
fact, counsel for defendants emphasized this
point in his summation in arguing that there
was insufficient evidence of malice as to the
initiation of that particular charge:
[T]his
idea
that
they’re
Machiavellian manipulators that
intentionally pumped up the value of
the detectors in some type of
conspiracy just doesn’t make sense.
None of the defendants, including
Stein and the ones – are the once
[sic] who actually charged the
plaintiffs with grand larceny in the
third-degree. Let me repeat that.
None of the defendants are the ones
who charged the plaintiffs with
grand larceny in the third degree.
There’s no document signed by any
of these defendants making that
charge. The only thing that is signed
by one of the defendants, Defendant
Stein, is the supporting deposition
that’s Plaintiffs’ exhibit 20, and it
doesn’t reference what charge, if
12
they were valued at $20-30 each
(Tr. 227:12-14; 662:15-663:14; 666:3-9;
711:24-712:3); and (2) that Commissioner
Stein provided that false information
concerning the value of the detectors
intentionally and maliciously in order to
reach the threshold of $3,000 required to
charge plaintiffs with a felony—which is
exactly what the police did—so that
plaintiffs could be removed from the fire
department under the disciplinary rules. 14
any, will be made if ever. Plaintiffs
provided no documents to the
contrary. There’s nothing in the
evidence to the contrary. The fact is
the defendants don’t decide what
charge to put out. That’s district
attorney or the police. They don’t
have anything to do with this. And
they can’t show anywhere else.
They can’t show otherwise. They
can’t meet this element of malice.
That element is gone, that is wrong.
It shouldn’t have been in this case.
That claim should have never been
made. Cross it out. Thank you.
For these reasons, the Court concludes
that there was no error in its instruction to
the jury that, in order to find liability on the
malicious prosecution claims, the jury must
find that defendants lacked probable cause
for the crime of Grand Larceny in the Third
Degree. As such, defendants’ motion to
overturn the verdict as to both the liability
and punitive damages on the malicious
prosecution claims on this ground is denied.
(Tr. 1018:15-1019:14.) Thus, this issue
regarding the inability of the defendants to
control the charging decision was clearly
placed before the jury on the question of
malice. Moreover, there was more than
sufficient evidence from which the jury
could rationally reject that argument and
find that the defendants specifically wanted
plaintiffs to be charged by the police with a
felony, and Commissioner Stein provided
false information to the police to effectuate
that malicious intention. 13 Here, a rational
jury could have concluded: (1) that
Commissioner Stein told the police that
plaintiffs had removed 65 smoke detectors
from the firehouse worth $50 (for a total
value of $3,250), even though Chief Murray
valued them at $10 each, and Commissioner
Stein later admitted at his deposition that
3. Punitive Damages
Defendants request that the Court
overturn the punitive damages award arising
from plaintiffs’ malicious prosecution
claims because (1) plaintiffs did not prove
defendants
acted
with
malice
or
recklessness, and (2) Commissioner Stein
has passed away. 15
14
Plaintiffs correctly note that the jury could have
rationally found that Commissioner Stein lied about
other material facts, including the number of
detectors. (Pls.’ Br. 15 n.7.) Commissioner DiVello
also admitted that he wanted plaintiffs removed from
the Fire Department, and he knew that they would be
automatically expelled from the Fire Department for
a felony conviction. (Tr. 420:17-20.) Based on that
testimony and all the other evidence in the record, the
jury could have rationally concluded that
Commissioners Brown and Bonura shared that
knowledge of the policy and had a similar motive.
13
Although Commissioner Stein was the one who
provided the information to the police, the jury could
reasonable infer from the totality of the evidence that
Commissioners Divello, Bonura, and Brown also
knew that there was a lack of probable cause for the
charge and shared in the malicious intent to have
plaintiffs charged with a felony to have them
removed from the fire department. The Board
authorized Commissioner Stein to press charges, as
noted supra, and Commissioners Brown, Stein, and
Bonura also met with the prosecutor after the arrest to
advise the prosecutor.
15
Defendants also argue the punitive damages award
as to the malicious prosecution claims should be
overturned because (1) there was error in the Court’s
instruction as to the probable cause requirement,
13
“‘[p]erhaps the most important indicium of
the reasonableness of a punitive damages
award.’”); Rounseville v. Zahl, 13 F.3d 625,
631 (2d Cir. 1994) (“In light of the
circumstantial evidence present here—the
history of friction between the defendants
and the [plaintiffs] prior to the initiation of
the criminal proceedings—it would not be
unreasonable for a fact-finder to infer that
the defendants acted with a wrong or
improper motive.”); Cameron v. City of New
York, 598 F.3d 50, 69 (2d Cir. 2010)
(holding that, where there was evidence that
defendant police officers knew they lacked
probable cause and provided false
information, the jury could reasonably infer
malice); see also, e.g., Manganiello v.
Agostini, No. 07-Civ.-3644 (HB), 2008 WL
5159776, at *14 (S.D.N.Y. Dec. 9, 2008)
(“A deliberate act punctuated with
awareness of conscious falsity is evidence of
malice, and if Officer Nieves had
deliberately testified falsely, this would go
to that element.” (citation omitted)); Abdell
v. City of New York, No. 05-CV-8453 (RJS),
2014 WL 3858319, at *2 (S.D.N.Y. Aug. 5,
2014) (“[T]he jury could infer malice
sufficient to award punitive damages based
solely on the Court’s finding that there was
no probable cause to arrest Plaintiffs.”). In
sum, there was evidence of malice on the
part of all defendants such that the jury
could find punitive damages were
warranted.
The Court disagrees with defendants’
argument that plaintiffs did not prove
defendants
acted
with
malice
or
recklessness. Consistent with the jury’s
finding that probable cause did not exist
with respect to the Grand Larceny in the
Third Degree charge in deciding plaintiffs’
malicious prosecution claims, the jury could
have inferred from that lack of probable
cause that defendants acted with malice.
See, e.g., Pinsky v. Duncan, 79 F.3d 306,
313 (2d Cir. 1996) (“Malice may be inferred
from lack of probable cause.”). Further, the
jury could have found malice (1) as to
Commissioner Stein because he provided
false information to police, and as to all
defendants because there was evidence that
they were aware and approved of
Commissioner Stein’s provision of this
information; (2) based upon evidence that
defendants reported the crime with an
improper purpose, namely, to ultimately
expel plaintiffs from the fire department;
and/or (3) based upon the history of friction
between the parties. 16 See Stampf v. Long
Island R.R. Co., 761 F.3d 192, 209-10 (2d
Cir. 2014) (quoting BMW, Inc. v. Gore, 517
U.S. 559, 575 (1996)) (acknowledging in
context of punitive damages that “[c]onduct
that involves deceit or malice is more
reprehensible than conduct involving mere
negligence,” and that reprehensibility is
which the Court rejected above, and (2) the Court
incorrectly declined to strike or provide a curative
instruction as to plaintiffs’ counsel’s rebuttal, which
the Court rejects below.
Second, the Court disagrees with
defendants’ contention that Commissioner
Stein’s death warrants Rule 50 relief as to
the punitive damages award imposed on all
defendants. (Defs.’ Br. 7.) As defendants
point out, the purposes of punitive damages
are two-fold: to “punish the defendant for
his willful or malicious conduct” and to
“deter others from similar behavior.”
Memphis Cmty. Sch. Dist. v. Stachura, 477
U.S. 299, 306 n.9 (1986). Defendants did
not offer any explanation as to why the
16
Defendants’ references to the fact that Dolan Sr.
took the smoke detectors twice do not alter the
Court’s ruling. To the extent that this evidence
tended to show defendants did not possess malice, as
defendants argue, the jury was entitled to consider
that evidence alongside evidence that tended to show
that defendants did possess the requisite malice, and
the Court will “not itself weigh the credibility of
witnesses or consider the weight of the evidence,”
Meloff v. N.Y. Life Ins. Co., 240 F.3d 138, 145 (2d
Cir. 2001), to undermine its ultimate finding.
14
detectors, where Dolan Sr. himself had
testified to that effect. Defendants made a
motion to strike this portion of the rebuttal,
which the Court denied. (Tr. 1042:121049:6.) In defendants’ words, this decision
was wrong because (1) the Court wrongly
found a flaw in defendants’ failure to raise
the objection during plaintiffs’ rebuttal,
where it is clear that objections to
summations may occur after summations
have concluded; and (2) the Court wrongly
concluded that the requested relief would
disproportionately highlight the issue to the
jury, where the testimony underlying the
request (namely, Dolan Sr.’s testimony) was
provided as part of plaintiffs’ case, and not
by a defense witness. (Defs.’ Br. 12-13.)
imposition of punitive damages, which
occurred before Commissioner Stein’s
death, did not serve the purpose of punishing
him, nor why Commissioner Stein’s death
would have any impact on the effectiveness
of the punitive damages in “deter[ring]
others from similar behavior.”
Id.
Moreover, defendants failed to make any
argument as to why Commissioner Stein’s
passing would impact the effectiveness of
punitive damages as to the other individual
defendants. In sum, the Court concludes
that Commissioner Stein’s death after the
trial does not impact the award of punitive
award damages in this case. 17
4. Plaintiffs’ Counsel’s Representation
in Rebuttal
As a threshold matter, the Court
provided additional support for its
discretionary decision that defendants do not
reference, including:
(1) the fact that
counsel had not ordered a transcript of the
testimony and there was a dispute as to what
was said, rendering the Court unable to
confirm the accuracy of counsel’s position
or to provide an instruction with the
necessary context; (2) the objection was not
only not made contemporaneously to the
statement, or even when the jury had left for
the day and the parties and the Court
discussed the jury instructions after
summations, but rather was made four days
(including a weekend) following the
summations and immediately before the
Court was to provide the jury instructions;
(3) in light of the length of time between the
summations and the request, and the fact
that the statement would have been stricken
immediately prior to the jury instructions,
the request would be highly prejudicial to
plaintiffs (and might have wrongly
suggested to the jury—by its strange
timing—that the Court was eschewing its
neutrality by attempting to highlight errors
by plaintiffs’ counsel); and (4) the Court
specifically instructed the jury before
Defendants also argue for Rule 50 relief
on the ground that plaintiffs’ counsel
misrepresented key facts in his rebuttal
argument and the Court failed to strike the
statement. 18
The
misrepresentation
defendants take issue with is the statement
that Commissioner Stein was the only
source of information as to whether he had
asked Dolan Sr. to return the smoke
17
Although defendants did not make this request, the
Court has also considered whether Commissioner
Stein’s death warrants Rule 50 relief as to the
punitive damages award imposed on Commissioner
Stein alone. For the same reasons, the Court
concludes it does not.
18
At the time defendants raised this issue, they
pointed out that they were not requesting a curative
instruction, but that the statement be stricken from
the record. (Tr. 1049:10-12.) In their motion,
defendants argue a curative instruction was
warranted, and also imply that a read-back of Dolan
Sr.’s testimony was an appropriate solution. (See
Defs.’ Br. 13-14; id. at 14 (“[T]he concern that the
curative instruction would inappropriately highlight
one piece of evidence over other evidence was
misplaced considering the piece of evidence was
Plaintiff Dolan Senior’s actual testimony . . . .”).)
The nature of the requested relief does not alter the
Court’s decision on the instant motion.
15
for a new trial where “the Court [had]
decided that specifically highlighting the
[prosecution’s] handwriting remarks for the
jurors would be more prejudicial than
curative,” and the Court gave the curative
instruction “that the summations are
argument; not evidence,” finding that this
instruction was “a sufficient curative
measure”); U.S. E. Telecomm’ns, Inc. v. U.S.
W. Info. Sys., Inc., No. 87 Civ. 2924 (KTD)
(THK), 1993 WL 385810, at *30 (S.D.N.Y.
Sept. 30, 1993) (misstatements of evidence
did not warrant a new trial in light of, inter
alia, the fact that “the jury was instructed
that counsel’s views and opinions had no
evidentiary value and that it was the jury
alone that was required to decide the facts,
based upon its independent recollection of
the evidence”); see also United States v.
Batista, 684 F.3d 333, 342 (2d Cir. 2012)
(“[W]e presume that a jury follows the
instructions of the court.”). Moreover, the
Court adheres to its prior finding that, given
the significant passage of time between the
statement and defendants’ request for relief,
any further relief would have been unduly
prejudicial to plaintiffs. In sum, having
presided over the entire trial (and observed
the evidence and the jury), the Court
concludes
that
plaintiffs’
counsel’s
statement, especially when viewed together
with the Court’s repeated instructions that
the statement was not evidence, did not
unfairly influence the jury, and Rule 50
relief is not warranted on this issue.
summations that, to the extent there were
conflicts between a lawyer’s description of
the evidence of testimony and the juror’s
recollection, the juror’s recollection
controls, and, in any case, they were aware
that they could ask for a read-back, thereby
minimizing any prejudice defendants
contended they would sustain from the
alleged misrepresentation. In fact, the Court
advised the jury that counsel’s statements in
summation were not evidence at least four
times.
(See Tr. 23:14-17; 919:13-21;
1054:3-11; 1082:22-1083:1.)
With this information and defendants’
arguments in mind, the Court rejects
defendants’ request and finds that Rule 50
relief is not warranted on this basis.19 First,
the Court’s multiple instructions to the jury
that statements made in summations are not
evidence and that a juror’s recollection of
the facts controls if that recollection
conflicts with anything said by counsel were
sufficiently
curative
of
any
misrepresentation by plaintiffs’ counsel.
The Second Circuit has approved such a
measure in a similar case, Gonzalez v.
Sullivan, 934 F.2d 419, 424 (2d Cir. 1991)
(finding the trial court’s instruction that
summations were not evidence and that the
jury was the sole judge of the facts was
curative where prosecution made improper
statements in summations), and district
courts in this circuit have done the same,
see, e.g., United States v. Diaz, No. 04-CR1353 (KMW), 2008 WL 4667989, at *6
(S.D.N.Y. Oct. 15, 2008) (denying motion
B. Rule 59
In defendants’ request for relief under
Rule 59, 20 they argue that the awards were
19
As a threshold matter, the Court notes that this
factual issue was not a dispositive issue in the trial.
In other words, even if Commissioner Stein
encouraged plaintiffs at some point to return the
detectors to avoid prosecution, the jury still could
rationally find, based on all the evidence in the case,
that Commissioner Stein was involved in the
malicious prosecution of plaintiffs, and committed
abuse of process in initiating the charges with the
collateral objective of having them removed from the
fire department.
20
Defendants also request a new trial as to liability
pursuant to Rule 59 for the same reasons they
requested Rule 50 relief. For the same reasons the
Court rejects the request under Rule 50, the Court
rejects the request under Rule 59 because the Court is
not convinced that “the jury has reached a seriously
erroneous result or the verdict is a miscarriage of
16
contention as well. 21 This finding resolves
another argument advanced by defendants;
namely, that Dolan Jr.’s award was
unreasonable because it dealt only with
“garden variety” emotional distress, (Defs.’
Br. 19)—the award was for not only
emotional distress, but also the loss of
liberty and reputational harm, Kerman v.
City of New York, 374 F.3d 93, 125 (2d Cir.
2004) (“The damages recoverable for loss of
liberty for the period spent in a wrongful
confinement are separable from damages
recoverable for such injuries as physical
harm,
embarrassment,
or
emotional
suffering.”). In addition, to the extent that
defendants attempt to analyze the selected
jury award in a dollars per day or, by
extrapolation, a dollars per year formula,
defendants fail to cite any authority that
such formulae should be used in reviewing
the reasonableness of jury awards, and
similar requests have been rejected in this
district before. See, e.g., Crews v. County of
Nassau, 149 F. Supp. 3d 287, 291-92
(E.D.N.Y. 2015); Graham v. City of New
York, No. 08-CV-3518 MKB, 2015 WL
5258741, at *25 (E.D.N.Y. Sept. 10,
2015). 22
excessive and outside the bounds of
reasonableness, and that plaintiffs’ counsel
incorrectly argued to the jury that plaintiffs
were entitled to damages associated with
arrest and confinement prior to their
arraignment. The Court addresses each
argument in turn.
The Second Circuit has stated that a
jury’s damages award should be set aside as
excessive only when “the award is so high
as to shock the judicial conscience and
constitute a denial of justice.” Kirsch v.
Fleet St., Ltd., 148 F.3d 149, 165 (2d Cir.
1998). The Court also notes that where, as
here, the jury award encompasses
compensation to plaintiffs for a variety of
injuries, including subjective noneconomic
harms, “it is difficult to precisely quantify
damages for emotional distress, mental
anguish, and mental pain and suffering,
because such concepts are abstract and illsuited to exacting calculation.” Ruhlmann v.
Smith, 323 F. Supp. 2d 356, 367 (N.D.N.Y.
2004).
Defendants argue that the jury’s award
of $400,000 in compensatory damages to
Dolan Jr. is entirely unreasonable and
shocks the judicial conscience. (Defs.’ Br.
17.)
Defendants also take issue with
plaintiffs’ recovery in connection with their
arrest and confinement prior to their
arraignment
because,
according
to
defendants, the abuse of process claim fails
on the merits. However, as the Court has
rejected defendants’ arguments as to the
abuse of process claim, the Court rejects this
Here, as defendants concede, plaintiffs
testified extensively as to the length and
details of their arrests and confinement,
including that they were handcuffed,
confined in a jail cell with their wrists
shackled to a wall, handcuffed to other
21
Because the abuse of process claim was part of the
basis of the jury’s award when considering
confinement-related injuries, the Court need not and
does not address the parties’ dispute over whether
damages for pre-arraignment injuries are permissible
in malicious prosecution claims. (See Defs.’ Br. 19;
Pls.’ Br. 20.)
justice.” Munafo v. Metro. Transp. Auth., 381 F.3d
99, 105 (2d Cir. 2004). In addition, defendants object
to plaintiffs’ counsel’s statement in the damages
summation that the upper range of compensatory
damages was $1,000,000, arguing that this statement
caused an erroneous and unconscionable jury award
respecting compensatory damages. (Id.) However,
the Court disagrees in light of its discussion below
and rejects this argument.
22
The Court notes that defendants incorrectly
attribute the decision in Stevens v. Rite Aid Corp.,
No. 13-CV-783 (TJM), 2015 WL 5602949
(N.D.N.Y. Sept. 23, 2015) to this Court. (See Defs.’
Br. 21.)
17
Power Lab., 381 F.3d 56, 77 (2d Cir.
2004), vacated on other grounds sub
nom. KAPL, Inc. v. Meacham, 544 U.S. 957
(2005) (applying less deferential New York
standard of review); see also Lore v. City of
Syracuse, 670 F.3d 127, 179 (2d Cir. 2012)
(affirming $250,000 jury award for
reputational injury and emotional distress).
In fact, courts in this district have approved
awards of $175,000 and $200,000 for
emotional distress where, as here, there was
no medical evidence and the damages were
supported solely by the plaintiff’s testimony.
See, e.g., Tretola v. County of Nassau, 14 F.
Supp. 3d 58, 80-85 (E.D.N.Y. 2014)
(remitting emotional distress award to
$175,000 where plaintiff testified that he
was humiliated and ostracized by friends in
law enforcement, and had trouble sleeping
and stomach pains); Wallace v. Suffolk Cty.
Police Dep’t, No. 04–CV–2599 (RRM)
(WDW), 2010 WL 3835882, at *8-9
(E.D.N.Y. Sept. 24, 2010) (declining to
remit $200,000 award where plaintiff
testified that he suffered from sleepless
nights, became tense, agitated, worried, and
more quick-tempered, and the condition
continued through the time of trial); see also
Jowers v. DME Interactive Holdings, Inc.,
No. 00 Civ. 4753 LTS KNF, 2006 WL
1408671, at *3 (S.D.N.Y. May 22, 2006)
(“When determining damages for mental
anguish, a plaintiff’s recovery is not
preconditioned on whether she underwent
treatment, psychiatric or otherwise.”).
prisoners, and not able to freely use the
restroom. Concerning post-release harms,
Dolan Jr. testified that he gained weight,
became less social, and ceased exercising.
In addition, Dolan Jr. testified as to the
harms his reputation suffered because of the
publicity associated with his arrest. 23 Under
these circumstances, it is clear that the jury’s
award of $400,000 to Dolan Jr. was not
unreasonable or excessive.
“In determining whether a jury’s award
is excessive, courts take into account awards
rendered in similar cases, ‘bearing in mind
that any given judgment depends on a
unique set of facts and circumstances.’”
Olsen v. County of Nassau, 615 F. Supp. 2d
35, 45 (E.D.N.Y. 2009) (quoting Scala v.
Moore McCormack Lines, 985 F.2d 680,
684 (2d Cir. 1993)). “A jury’s award of
damages ‘may not be overturned unless it is
so excessive that it shocks the conscience of
the court.’” Id. (quoting McGrory v. City of
New York, No. 99 Civ. 4062, 2004 WL
2290898, at *13 (S.D.N.Y. Oct. 8, 2004)).
The $400,000 award here does not shock
the Court’s conscience, nor is it even
unreasonable given the evidence in the case.
The Second Circuit has affirmed an award
of up to $125,000 in “mental anguish
damages” where there was no evidence of
“physical
sequelae
or
professional
treatment.” Meacham v. Knolls Atomic
23
Defendants point to evidence during the trial that:
(1) Dolan Jr. had a prior arrest; (2) Dolan Jr. did not
seek mental health treatment for these harms; (3)
Dolan Jr. acknowledged that his emotional distress
was greatly reduced when the charges were dropped;
and (4) none of the news reports of his arrest asserted
that he was found guilty of any crime. Defendants
argue that these and other facts undermining Dolan
Jr.’s damages claim render the jury’s verdict
unreasonable or excessive. The Court disagrees. The
jury was entitled to weigh this evidence alongside the
other testimony and evidence, and its ultimate award
was neither unreasonable nor excessive in light of all
the evidence.
Here, there was not only extensive
testimony by Dolan Jr. about the substantial
emotional
distress
caused
by the
prosecution, but there also was substantial
testimony about his loss of liberty and
reputational harm.
When all of these
categories are considered together, there is
no question that the $400,000 is well within
the range of awards rendered in similar
cases. See, e.g., Ismail v. Cohen, 899 F.2d
183, 185-87 (2d Cir. 1990) ($650,000 in
18
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