The Anderson Group, LLC et al v. City of Saratoga Springs et al

Filing 278

MEMORANDUM-DECISION and ORDER - That Saratoga's motion for a new trial is GRANTED on the Anderson Group's disparate impact and perpetuation of segregation claims. That, in the alternative, Saratoga's motion for a new trial on damages is DENIED on the condition that the Anderson Group accepts a REMITTITUR of the damages award to $81,000. That Saratoga's motion is otherwise DENIED. Signed by Judge Gary L. Sharpe on 6/21/2011. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_______________________________________
THE ANDERSON GROUP, LLC and GAIL
ANDERSON,
Plaintiffs,

1:05-cv-1369
(GLS\DRH)

v.
CITY OF SARATOGA SPRINGS; MICHAEL
LENZ; SARATOGA SPRINGS CITY COUNCIL;
THOMAS CURLEY; MATTHEW MCCABE;
THOMAS MCTYGUE; STEPHEN TOWNE;
SARATOGA SPRINGS PLANNING BOARD;
LEWIS BENTON; ROBERT BRISTOL;
ROBERT ISRAEL; WILLIAM MCTYGUE;
NANCY OHLIN; and LOU SCHNEIDER,
Defendants.
_______________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFFS:
Relman, Dane Law Firm
1225 19th Street, N.W.
Suite 600
Washington, DC 20036
Lynch, Farrell Law Firm
111 State Street
Albany, NY 12207
FOR THE DEFENDANTS:
Lemire, Johnson Law Firm
P.O. Box 2485
2534 Route 9
Malta, NY 12020

JOHN P. RELMAN, ESQ.
REED N. COLFAX, ESQ.
KATHERINE GILLESPIE, ESQ.
JAMIE L. CROOK, ESQ.
PETER A. LYNCH, ESQ.

GREGG T. JOHNSON, ESQ.
MARK J. LEMIRE, ESQ.

Gary L. Sharpe
District Court Judge

MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiffs Gail Anderson and the Anderson Group, LLC commenced
this action against defendant City of Saratoga Springs,1 alleging claims
under the Fair Housing Act (FHA)2 for disparate treatment, disparate
impact discrimination, and perpetuation of segregation.3 Following a nineday jury trial that began on June 21, 2010, the jury returned a verdict
finding that (1) both plaintiffs failed to prove that Saratoga engaged in
disparate treatment; (2) the Anderson Group proved that Saratoga
engaged in disparate impact discrimination, and Saratoga failed to prove its
conduct furthered a legitimate, bona fide governmental interest and that no
alternative action would have served that interest with a less discriminatory
impact; (3) Gail Anderson failed to prove that Saratoga engaged in
1

On June 29, 2010, pursuant to an agreement reached by the parties, the court ordered
the dismissal of all claims against the individual defendants. (See June 29, 2010 Minute Entry,
Dkt. No. 232; Trial Tr. at 1525-26.)
2

42 U.S.C. § 3601, et seq.

3

Plaintiffs’ claims under New York State Human Rights Law, N.Y. EXEC. LAW § 296,
were dismissed on October 18, 2007. (See Oct. 18, 2007 Minute Entry, Dkt. No. 110.)

2

disparate impact discrimination; (4) the Anderson Group proved that
Saratoga engaged in the perpetuation of segregation against African
Americans, but Saratoga proved that its conduct furthered a legitimate,
bona fide governmental interest and that no alternative action would have
served that interest with a less discriminatory impact; and (5) Gail
Anderson failed to prove that Saratoga engaged in the perpetuation of
segregation against African Americans. (See Verdict Form, Dkt. No. 237.)
And having found Saratoga liable only under the Anderson Group’s claims,
the jury awarded the Anderson Group $1,000,000 in compensatory
damages. (See id. at 7.) Pending is Saratoga’s motion pursuant to FED. R.
CIV. P. 50 and 59 for judgment notwithstanding the verdict, for a reduction
of the verdict, or for a new trial. (See Dkt. No. 262.) For the reasons that
follow, the court grants Saratoga’s motion for a new trial and, in the
alternative, grants a remittitur of the damages award, but otherwise denies
Saratoga’s motion.
II. Standard of Review
Under Rule 50, “[j]udgment as a matter of law is proper when ‘a party
has been fully heard on an issue and there is no legally sufficient
evidentiary basis for a reasonable jury to find for that party on that issue.’”
3

United States v. Space Hunters, Inc., 429 F.3d 416, 428 (2d Cir. 2005)
(citing FED. R. CIV. P. 50(a)(1)). Rule 59(a)(1), however, permits a new trial
when “in the opinion of the district court, the jury has reached a seriously
erroneous result or ... the verdict is a miscarriage of justice.” DLC Mgmt.
Corp. v. Town of Hyde Park, 163 F.3d 124, 133 (2d Cir. 1998) (quotation
marks and citation omitted). Rule 50 requires the court to “consider the
evidence in the light most favorable to the party against whom the motion
was made and ... give that party the benefit of all reasonable inferences
that the jury might have drawn in his favor from the evidence.” Space
Hunters, Inc., 429 F.3d at 429 (internal quotation marks and citation
omitted); see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 150 (2000). “The court cannot assess the weight of conflicting
evidence, pass on the credibility of the witnesses, or substitute its judgment
for that of the jury.” Space Hunters, Inc., 429 F.3d at 429 (internal
quotation marks and citation omitted). Thus, a Rule 50 motion may be
granted only if “the evidence, viewed in the light most favorable to the
opposing party, is insufficient to permit a reasonable juror to find in her
favor.” Galdieri-Ambrosini v. Nat’l Realty & Dev. Corp., 136 F.3d 276, 289
(2d Cir. 1998). Under Rule 59, the court is free to weigh the evidence and
4

grant a new trial if the jury’s verdict is against the weight of that evidence.
See DLC Mgmt. Corp., 163 F.3d at 133.
III. Discussion
A.

Standing4
Preliminarily, Saratoga reasserts its argument that the Anderson

Group lacks standing to have brought and recover for a disparate impact
claim. (See Def. Mem. of Law at 3-13, Dkt. No. 262:1.) While both parties
agree that the only basis for the Anderson Group’s injury could be
economic losses, (see id. at 4; Pl. Resp. Mem. of Law at 4-5, Dkt. No. 267),
Saratoga contends that the evidence adduced at trial demonstrates that the
Anderson Group—separate and apart from Gail Anderson—had an
insufficient interest in, i.e., no legally enforceable rights relating to, the
Spring Run Village land, (see Def. Mem. of Law at 7-13, Dkt. No. 262:1).
The FHA confers standing upon “any person who ... claims to have
been injured by a discriminatory housing practice.” 42 U.S.C. §§
3602(i)(1), 3613(a)(1)(A). FHA standing is construed as broadly as Article
III of the United States Constitution permits, see Havens Realty Corp. v.
4

In response to Saratoga’s reliance on its trial brief for its abstention argument, (see
Def. Mem. of Law at 35, Dkt. No. 262:1), the court similarly relies on its prior rulings in
continuing to reject Saratoga’s request to abstain, (see July 21, 2006 Summ. Order at 3, Dkt.
No. 47; see also Pl. Resp. Mem. of Law at 3 n.1, Dkt. No. 267).

5

Coleman, 455 U.S. 363, 375-76 (1982), and is therefore conferred as long
as three elements of the “irreducible constitutional minimum” are met:
First, the plaintiff must have suffered an ‘injury in fact’—an
invasion of a legally protected interest which is ... concrete and
particularized, and ... actual or imminent, not conjectural or
hypothetical. Second, there must be a causal connection
between the injury and the conduct complained of—the injury
has to be fairly traceable to the challenged action of the
defendant, and not the result of the independent action of some
third party not before the court. Third, it must be likely, as
opposed to merely speculative, that the injury will be redressed
by a favorable decision.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (internal
quotation marks and citations omitted); see also Vill. of Arlington Heights v.
Metro. Hous. Dev. Corp., 429 U.S. 252, 260-61 (1977) (“The essence of
the standing question ... is whether the plaintiff has alleged such a personal
stake in the outcome of the controversy as to warrant [its] invocation of
federal-court jurisdiction and to justify exercise of the court’s remedial
powers on [its] behalf.” (internal quotation marks and citation omitted)).
Under this lenient standard, courts have granted standing to, among
others, developers asserting challenges under the FHA against municipal
decisions that present a barrier to developments. See, e.g., Lynn v. Vill. of
Pomona, 373 F. Supp. 2d 418, 426-28 (S.D.N.Y. 2005) (finding that real

6

estate developer has standing where it “suffered economic losses and
other hardships as a result of defendant[ village’s] allegedly discriminatory
application of [a local zoning ordinance]”); cf., e.g., Reg’l Econ. Cmty.
Action Program v. City of Middletown, 294 F.3d 35, 46 n.2 (2d Cir. 2002)
(finding that not-for-profit corporation has standing where it “suffered an
injury through the denial of its special-use permit application”); Support
Ministries for Persons with AIDS, Inc. v. Vill. of Waterford, 799 F. Supp.
272, 278 (N.D.N.Y. 1992) (finding that state officials have standing to sue
for denial of building permits based on, among other things, the state’s
economic interest in people with AIDS being placed in residential care
facilities rather than medical facilities).
Here, notwithstanding the court’s shared concern about whether the
Anderson Group actually constitutes an intended beneficiary of the FHA’s
protections, the court—consistent with its prior rulings, (see Oct. 18, 2007
Hr’g Tr. at 12-14, Dkt. No. 128)—is satisfied that the evidence adduced at
trial does not undermine, but rather reinforces, the Anderson Group’s
standing. The testimonial and documentary evidence offered at trial
established that the Anderson Group expended time, money, and effort in
developing the plans for Spring Run Village, soliciting and receiving
7

professional services, and preparing and submitting its proposals and
applications to Saratoga. (See Trial Tr. at 175-79, 187, 213-16, 264, 317,
352-55, 368, 565-67, 1284; Pls. Trial Exs. 92, 95, 204, Dkt. Nos. 267:7-9;
see also Pls. Trial Exs. 14, 16, 18, 26, Special Use Permit Appls., Dkt. Nos.
267:3-6.) In addition, Willard Anderson offered testimony that the
Anderson Group suffered some loss of potential profits, income, or fees as
a result of Saratoga’s actions. (See Trial Tr. at 296-301, 442.) Although
the actual value of these losses is subject to considerable
infirmities—which the court will address further below—the quality, or
nature, of these losses is sufficient to give rise to an injury-in-fact under the
FHA. These economic injuries are fairly traceable to Saratoga’s zoning
policies and practices. And insofar as the Anderson Group was seeking
compensation for these economic injuries, such injuries were redressable
by a favorable decision.
To the extent Saratoga now asserts, or continues to assert, that the
Anderson Group was not authorized under the Saratoga Municipal Code to
apply for a special use permit and, therefore, could not have suffered a
legally cognizable injury, (see Def. Mem. of Law at 8-9 n.12, Dkt. No.
262:1), the court considers both halves of this assertion to be flawed. First,
8

one could arguably infer from Gail Anderson, Willard Anderson, Susan
Touhey, and Gregory Anderson’s testimony, (see Trial Tr. at 114-15, 14647, 165-66, 317-19, 1013, 1036-40), that Gail Anderson, a principal of the
Anderson Group, entered into an oral or implicit agreement with the
Anderson Group and its other principals regarding the ownership of,
dominion over, or development of the Spring Run Village land. Thus, Gail
Anderson and the Anderson Group’s shared interest in and control over the
Spring Run Village land may have qualified the Anderson Group to be an
eligible applicant under the Municipal Code. Regardless, the Anderson
Group correctly counters that its eligibility as an applicant “is not
determinative of standing” since it “could, and did, establish its personal
stake separate and apart from being the entity named on and submitting
the special use applications.” (Pls. Resp. Mem. of Law at 6-7 n.5, Dkt. No.
267.) Consequently, the court rejects Saratoga’s argument that the
Municipal Code operates to block the Anderson Group’s standing.
Saratoga’s attempt to make standing conditional on ownership or a written
agreement must be rejected as an overly narrow application of the Article
III standing doctrine in the context of the FHA. See Arlington Heights, 429
U.S. at 261-62; Huntington Branch, NAACP v. Town of Huntington, 689
9

F.2d 391, 394-95 (2d Cir. 1982).
For these reasons, the court denies the aspect of Saratoga’s motion
seeking judgment on the basis of the Anderson Group’s lack of standing.
B.

Consistency of the Verdict
Saratoga contests the consistency of the jury’s verdict on two bases:

(1) that, aside from damages, the proof did not distinguish between Gail
Anderson and the Anderson Group and so the jury’s finding in favor of the
Anderson Group is inconsistent with its finding against Gail Anderson; and
(2) that there is no way to reconcile the jury’s finding that Saratoga proved
its governmental interest defense on the Anderson Group’s perpetuation of
segregation claim with its finding that Saratoga failed to prove the same
defense on the Anderson Group’s disparate impact claim. (See Def. Mem.
of Law at 33-35, Dkt. No. 262:1.) In response, the Anderson Group asserts
that Saratoga waived its objection as a result of its failure to object to the
verdict when it was rendered and before the jury was discharged. (See Pl.
Resp. Mem. of Law at 41-43, Dkt. No. 267.) The Anderson Group further
maintains that even if there was no waiver, the jury’s findings are capable
of harmonization. (See id. at 43-45.)
In general, “a party waives its objection to any inconsistency in a jury
10

verdict if it fails to object to the verdict prior to the excusing of the jury.”
Kosmynka v. Polaris Indus., Inc., 462 F.3d 74, 83 (2d Cir. 2006) (citations
omitted). The purpose for requiring a timely objection is “‘to give the court
and the opposing party the opportunity to correct an error in the conduct of
the trial,’” which may include “resubmitting the questions to the jury after
some further instruction.”5 Id. at 83-84 (quoting Barry v. Manglass, 55
N.Y.2d 803, 805-06 (N.Y. 1981)). Still, an objection may be treated as
timely where “the inconsistency is not noticed until after the jury has been
dismissed.” Auwood v. Harry Brandt Booking Office, Inc., 850 F.2d 884,
891 (2d Cir. 1988); see also Denny v. Ford Motor Co., 42 F.3d 106, 110-11
(2d Cir. 1994) (holding that the principles of waiver should be applied on a
case-by-case basis and do not lend themselves to a bright-line rule); cf.
Lavoie v. Pac. Press & Shear Co., 975 F.2d 48, 55 (2d Cir. 1992)
(suggesting that an objection may be timely if it is raised “before the trial

5

In Cundiff v. Washburn, the Seventh Circuit outlined in detail the objectives served by
a robust waiver doctrine:
[T]he rule that objection on grounds of inconsistency is waived by failure to
move for resubmission promotes the fair and expeditious correction of error. It
requires that the error be corrected in the proceeding in which it is made, by the
jury which made it .... Any other decision would hamper the just and efficient
operation of the federal courts. It would encourage jury-shopping by litigants,
permitting them to decide whether to take their chances on resubmitting the
verdict and finding to the jury sitting or remain silent thereby allowing the entry
of judgment and moving for a new trial before a new jury.
393 F.2d 505, 507 (7th Cir. 1968).

11

court enter[s] judgment”); L.A. Nut House v. Holiday Hardware Corp., 825
F.2d 1351, 1354-55, 1355 n.3 (9th Cir. 1987) (collecting cases and noting
that waiver is more likely found where, prior to dismissing the jury, the
district court inquired of the parties about potential inconsistency and
counsel gave a misleading answer in order to get the jury dismissed and
avoid resubmitting the case); Schaafsma v. Morin Vt. Corp., 802 F.2d 629,
635 (2d Cir. 1986) (holding that even where no objection is made, the trial
court has a duty to resolve “double inconsistenc[ies],” i.e., “interrogatory
answers which are inconsistent with each other and also inconsistent with
the general verdict” (citations omitted)); Waggoner v. Mosti, 792 F.2d 595,
596-97 (6th Cir. 1986) (holding that “trial court has no authority to enter
judgment” where double inconsistencies are left unresolved (citation
omitted)). For instance, “where the cause of an inconsistent verdict is the
jury’s misapplication of instructions that are proper,” a party’s failure to
object to the verdict prior to the discharge of the jury may be excusable
since “such a verdict could not have been anticipated ex ante.” Kosmynka,
462 F.3d at 86 (italics omitted).
If an objection is deemed untimely, a party may nonetheless
challenge an inconsistent verdict “for ‘fundamental’ error,” meaning that the
12

“error is more egregious than the ‘plain’ error that can excuse a procedural
default ... and is so serious and flagrant that it goes to the very integrity of
the trial.” Jarvis v. Ford Motor Co., 283 F.3d 33, 62 (2d Cir. 2002) (internal
quotation marks and citations omitted); see, e.g., Perks v. Town of
Huntington, 234 F. App’x 8, 10 (2d Cir. 2007) (applying “fundamental error”
analysis to inconsistent verdict challenge). Along these lines, where a
verdict “reflect[s] a lack of understanding upon the part of the jury and
show[s] that the jury either returned an erroneous verdict or did not
understand [its] duty,” a finding of waiver may be unduly harsh—even in
the absence of an objection—and the court may treat the jury’s verdict as
“a nullity under the circumstances and [order] a re-trial of the case upon all
issues.” Cheney v. Moler, 285 F.2d 116, 118 (10th Cir. 1960); see also
Hopkins v. Coen, 431 F.2d 1055, 1059 (6th Cir. 1970) (“[W]here verdicts in
the same case are inconsistent on their faces, indicating that the jury was
either in a state of confusion or abused its power, a motion ... for new trial,
or for relief from the judgment, if timely made, is not discretionary.”
(citations omitted)); see, e.g., Finnegan v. Fountain, 915 F.2d 817, 820 (2d
Cir. 1990) (ordering a retrial where, “notwithstanding [the] failure of the
parties to object or to move before the district court,” the jury’s verdict that
13

officer used force in good faith was irreconcilable with punitive damages
award), abrogated on other grounds, Saucier v. Katz, 533 U.S. 194, 204
(2001); but see U.S. Football League v. Nat’l Football League, 842 F.2d
1335, 1367 (2d Cir. 1988) (finding waiver where the “jury return[ed] an
ambiguous verdict and counsel fail[ed] to seize the opportunity to raise an
appropriate objection”).
Upon review of a jury’s verdict for consistency, “it is the duty of the
district court to attempt to harmonize the jury’s answers, if it is at all
possible under a fair reading of the responses.” LeBlanc-Sternberg v.
Fletcher, 67 F.3d 412, 427 (2d Cir. 1995) (internal quotation marks and
citation omitted); see also Atl. & Gulf Stevedores, Inc. v. Ellerman Lines,
Ltd., 369 U.S. 355, 364 (1962) (“Where there is a view of the case that
makes the jury’s answers ... consistent, they must be resolved that way.”).
Thus, “if it is discoverable that the jury ‘might’ nevertheless have found
consistent grounds for its ultimate decision—if the findings, therefore, are
not necessarily in conflict—the general verdict must be sustained.” Julien
J. Studley, Inc. v. Gulf Oil Corp., 407 F.2d 521, 527 (2d Cir. 1969) (internal
quotation marks and citations omitted). But, “if there is no way in which the
jury’s answers may be harmonized, the court must order a new trial.”
14

LeBlanc-Sternberg, 67 F.3d at 428 (citation omitted); see also Schaafsma,
802 F.2d at 635 (“Only when jury verdicts are logically incompatible is it
error for the district court not to grant a new trial.” (citations omitted)). The
court, however, may not “simply ... enter a judgment that overrules some of
the jury’s findings ... [because] proper deference to the parties’ Seventh
Amendment rights to a jury trial precludes entry of a judgment that
disregards any material jury finding.” LeBlanc-Sternberg, 67 F.3d at 428
(citations omitted).
At the threshold, the court declines to find waiver in the present
circumstances. The complicated and unique nature of this case and the
questions presented made it entirely reasonable, and excusable, for
Saratoga not to immediately voice an objection to the verdict’s potential
inconsistency. Even the court, upon several reviews, strained to digest the
verdict. Accordingly, anticipating that Saratoga would raise a challenge to
the verdict in its Rules 50 and 59 motion papers, the court reserved on all
remaining issues, discharged the jury, and deferred the entry of judgment.
(See Trial Tr. at 2073-74.) Therefore, because Saratoga’s objection
presupposes the jury’s misapplication of proper instructions, see
Kosmynka, 462 F.3d at 86, and as there is no basis from which to infer that
15

Saratoga or defense counsel intended to avoid resubmitting the issue to
the jury or was otherwise engaging in unwelcome tactics, the court finds
that Saratoga’s objection to the verdict is timely and subject to review on
the merits.6
While the parties do not appear to challenge the substance of the jury
instructions or the verdict form, the court has nonetheless reviewed the
instructions and verdict form, and discerns no erroneous statements or
directions that had the potential to confuse or misguide.7
Therefore, the fundamental issue is whether it is at all possible to
harmonize the jury’s answers. The court concludes that based on the
record the jury’s findings regarding Saratoga’s governmental interest
defense cannot be reconciled.8 On the verdict form, the jury found that as
6

Even if Saratoga’s objection was deemed untimely, the court would nonetheless be
obligated to entertain the objection since it implicates a potentially fundamental error regarding
the jury’s understanding and application of the law which goes to the very integrity of the trial.
7

To the extent that the Anderson Group seeks to preclude Saratoga from challenging
the jury’s divergent findings regarding the governmental interest defense based on Saratoga’s
failure to request that the jury be instructed to make only one finding as to whether it proved its
defense, (see Pl. Resp. Mem. of Law at 42, Dkt. No. 267), the court perceives this not as an
exception to the instructions and verdict form, but rather as an attempt to frustrate Saratoga’s
objection. However, for the same reasons that countenance against a finding of
waiver—including the novelty of the case, the complexity of the legal issues, and the
unforeseeable jury findings—the court declines to find such preclusion.
8

The court rejects the first basis for inconsistency advocated by Saratoga—that the
evidence could not have allowed for finding in the Anderson Group’s favor but not in Gail
Anderson’s favor—because, as Saratoga itself acknowledges, the Anderson Group’s interest
or stake in the Spring Run Village project, and consequently its harm or damages, was of a

16

to the Anderson Group’s disparate impact claim, Saratoga failed to prove
its conduct furthered a legitimate, bona fide governmental interest and that
no alternative action would have served that interest with a less
discriminatory impact. Yet, as to the Anderson Group’s perpetuation of
segregation claim, the jury found that Saratoga proved that its conduct
furthered a legitimate, bona fide governmental interest and that no
alternative action would have served that interest with a less discriminatory
impact. There is no view of the facts and law that would make these
findings consistent. See, e.g., Fibermark, Inc. v. Brownville Specialty
Paper Prods., Inc., 419 F. Supp. 2d 225, 234 (N.D.N.Y. 2005) (finding that
the jury’s verdict could not be harmonized where it “essentially was asked
the same question twice, but came up with opposite answers”). While
disparate impact and perpetuation of segregation were submitted to the
jury as separate causes of action, they constitute two types of
discriminatory effect. See Huntington Branch, NAACP v. Town of
Huntington (Huntington II), 844 F.2d 926, 937 (2d Cir. 1988). And as

different quality than Gail Anderson’s. (See Def. Mem. of Law at 34, Dkt. No. 262:1 (“[T]he
evidence presented at trial, aside from damages, did not in any way distinguish between the
two [p]laintiffs.” (emphasis added)); see also Pl. Resp. Mem. of Law at 43-44, Dkt. No. 267
(“One ‘fair reading’ of the jury’s findings related to [the Anderson Group] and Gail Anderson is
that the jury concluded that [the Anderson Group], and not Ms. Anderson, was harmed by
[Saratoga’s] discrimination.”).)

17

Saratoga stresses, “the elements of the [governmental interest] defense
are exactly the same under either theory.” (Def. Mem. of Law at 35, Dkt.
No. 262:1 (emphasis omitted).) In fact, even the Anderson Group, in its
trial brief, admitted to the universality of the governmental interest defense:
Once a plaintiff has shown a discriminatory effect either through
an ‘adverse impact’ or a ‘perpetuation of segregation’ analysis,
or both, the defendant must show that ‘its actions furthered, in
theory and in practice, a legitimate, bona fide governmental
interest and that no alternative would serve that interest with
less discriminatory effect.’
(Pl. Trial Br. at 5, Dkt. No. 174 (quoting Huntington II, 844 F.2d at 936)
(emphasis added).) Accordingly, the court instructed the jury that “the
affirmative defense ... applies in exactly the same way” to both claims, and
that if the jury “were satisfied that [Saratoga proved the defense], then [it]
would not be liable, so that affirmative defense applies to the second and
third claims but not the first.” (Trial Tr. at 2050-51, 2052-53.) Thus, as
neither the law9 nor the instructions contemplate the jury’s disjointed
9

In a final effort to save the verdict, the Anderson Group relies on Huntington II for the
proposition that “[i]f the fact-finder concludes that the defendant has [proven the governmental
interest defense], the fact-finder must then weigh the plaintiff’s showing of adverse impact or
perpetuation of segregation against the defendant’s showing of a legitimate justification and
determine the ‘ultimate balance.’” (Pl. Resp. Mem. of Law at 44, Dkt. No. 267 (quoting
Huntington II, 844 F.2d at 936).) This effort must fail, for it does not explain how the balancing
act envisioned by the Huntington II court would have led the jury to reach different conclusions
on the governmental interest defense. Under Huntington II, the additional factors to be
considered in evaluating a municipality’s governmental interest are (1) “whether there is any
evidence of discriminatory intent”; and (2) “whether the plaintiff is suing to compel a

18

application of the governmental interest defense, and because the jury’s
disjointed findings are equally unsupported by the evidence, the court has
no choice but to order a retrial.
C.

Damages
In the alternative, even if the jury’s verdict was salvageable, the court

would nonetheless deem the damages award excessive and unsupported
by the evidence. Specifically, while the jury awarded $1,000,000 in
compensatory damages, the credible evidence on record only supports a
damages amount of $81,000, based on the following: (1) $36,000 paid by
the Anderson Group to the LA Group, as evidenced by a June 15, 2004
invoice sent to Willard Anderson from Michael Ingersoll outlining projected
fees, (see Pls. Trial Ex. 92, Dkt. No. 267:7), Willard Anderson’s testimony,
(see Trial Tr. at 213), and Michael Ingersoll’s testimony, (see id. at 566); (2)
$14,000 paid by the Anderson Group to Architecture+, as evidenced by
Willard Anderson’s testimony, (see Trial Tr. at 214), and a July 1, 2004
services agreement signed by Willard Anderson and Joseph Lomonaco,

governmental defendant to build housing or only to require a governmental defendant to
eliminate some obstacle to housing that the plaintiff itself will build.” 844 F.2d at 936. Here,
the first factor was not in play in light of both the absence of evidence showing discriminatory
intent and the jury’s finding of no liability on the disparate treatment causes of action. And as
to the second factor, the court is at a loss as to how the weight of that factor would have been
different in the contexts of the disparate impact and perpetuation of segregation claims.

19

(see Pls. Trial Ex. 95, Dkt. No. 267:8); (3) $23,500 paid by the Anderson
Group to the Chazen Companies and Whiteman, Osterman & Hanna,
which Willard Anderson testified to, (see Trial Tr. at 215); (4) $5,500 paid
by the Anderson Group to Creighton Manning, which Willard Anderson
testified to, (see id. at 216); and (5) $2,000 in application fees, as
evidenced by the special use permit applications, (see Pls. Trial Exs. 14,
16, 18, 26, Dkt. Nos. 267:3-6), and Willard Anderson’s testimony, (see Trial
Tr. at 264). The only other actual dollar amount put into proof was Willard
Anderson’s identification of $900,000 as an anticipated developer fee that
the Anderson Group expected to realize from the Spring Run Valley
project. (See id. at 442.) However, unlike the losses that make up the
$81,000 amount, the $900,000 was based on pure speculation—as Willard
Anderson’s testimony itself demonstrates—and was wholly unsubstantiated
by any other testimonial or documentary evidence. Moreover, the evidence
overwhelmingly established that the Anderson Group made no attempt to
adapt its project or otherwise mitigate its potential losses. And insofar as
the Anderson Group posits harm to its reputation as an additional basis for
the jury’s damages award, the record contains nothing more than passing
references to and conjecture about the Anderson Group’s reputation. (See
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id. at 137 (“Well, I guess our reputation [was affected].”), 302 (“We were ...
called schoolyard bullies[,] ... told that we didn’t have any brains[, and] ...
villified in the press throughout [the] entire process.”), 1278 (“There were
numerous allegations about our intent and specifically in building the
affordable portion of the project saying it was just a carrot or a smoke
screen ....”), 1279 (“[I]n one case we had received a letter ... letting us
know that people are calling into question our good name.”); see also Pls.
Trial Ex. 28, Bristol-Lynch Emails, Dkt. No. 267:10.)
Faced with the fact that the jury’s award was clearly excessive and
against the weight of the evidence, the court has three options: “it may
order a new trial, a new trial limited to damages, or, ... condition a denial of
[Saratoga’s] motion for a new trial on the [Anderson Group’s] accept[ance
of] damages in a reduced amount.” Tingley Sys., Inc. v. Norse Sys., Inc.,
49 F.3d 93, 96 (2d Cir. 1995) (citation omitted). Under the third option,
which is called “remittitur,” the court may “compel[ the Anderson Group] to
choose between reduction of [the] excessive verdict and a new trial.” Earl
v. Bouchard Transp. Co., Inc., 917 F.2d 1320, 1328 (2d Cir. 1990) (internal
quotation marks and citation omitted); see also Tingley, 49 F.3d at 96 (“It is
not among the powers of the trial court, where the jury has awarded
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excessive damages, simply to reduce the damages without offering the
prevailing party the option of a new trial.” (citation omitted)). Importantly, in
calculating the remittitur, the court must use the “least intrusive”—and
“most faithful to the jury’s verdict”—method of “reduc[ing] the verdict only to
the maximum that would be upheld by the trial court as not excessive.”
Earl, 917 F.2d at 1328-30.
A new trial on damages is implicit in the court’s primary ruling that the
Anderson Group’s disparate impact and perpetuation of segregation claims
must be submitted to a new trial. However, if this ruling ultimately fails to
withstand scrutiny, the court proposes a remittitur, pursuant to which
Saratoga’s motion for a new trial would be denied on the condition that the
Anderson Group accept a reduced damages amount of $81,000.
IV. Conclusion
In closing, having found that a new trial is warranted and necessary
due to the inconsistency of the verdict, and in light of the court’s additional
observations regarding damages, the court declines to address any other
aspects of Saratoga’s motion.
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Saratoga’s motion for a new trial is GRANTED on the
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Anderson Group’s disparate impact and perpetuation of segregation
claims; and it is further
ORDERED that, in the alternative, Saratoga’s motion for a new trial
on damages is DENIED on the condition that the Anderson Group accepts
a REMITTITUR of the damages award to $81,000; and it is further
ORDERED that Saratoga’s motion is otherwise DENIED; and it is
further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
June 21, 2011
Albany, New York

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