Norwood et al v. Salvatore et al

Filing 115

MEMORANDUM-DECISION AND ORDER: The Court hereby ORDERS that Plaintiffs' motion for attorney's fees (Dkt. No. 92 ) is GRANTED in part; and the Court further ORDERS that Plaintiffs are awarded attorney's fees in the amount of $37,0 27.50, and the Court further ORDERS that Plaintiffs are awarded costs in the amount of $861.85, and the Court further ORDERS that Defendants' motion for judgment as a matter of law or, in the alternative, for a new trial (Dkt. No. 89 ) is GRANTED in part and DENIED in part; and the Court further ORDERS that Defendants' motion for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(b) is DENIED; and the Court further ORDERS that Defendants' motion for a new trial pursuant to Federal Rule of Civil Procedure 59 is GRANTED on the issue of Plaintiffs' compensatory damages unless Plaintiffs file and serve, within 10 days from the filing of this Order, a written acceptance of remittitur of the award of compensatory damages to $73,000.00; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision and Order on all parties in accordance with the Local Rules.Signed by U.S. District Judge Mae A. D'Agostino on 3/15/2016. (ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
DOUGLAS NORWOOD, III; LEEANN
NORWOOD; and D.N., Minor Son of Plaintiffs
NORWOOD,
Plaintiffs,
vs.

3:12-cv-1025
(MAD/DEP)

MICHAEL SALVATORE, in his capacity as
TOWN OF HANCOCK CODE ENFORCEMENT
OFFICER; and TOWN OF HANCOCK,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

OFFICE OF JOHN V. JANUSAS, ESQ.
184 North Main Street
Liberty, New York 12754
Attorney for Plaintiffs

JOHN V. JANUSAS, ESQ.

MACKENZIE HUGHES LLP
101 South Salina Street
PO Box 4967
Syracuse, New York 13221-4967
Attorneys for Defendants

WILLIAM B. HUNT, ESQ.

Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
On June 22, 2012, Plaintiffs commenced this action pursuant to 42 U.S.C. § 1983.
Plaintiffs allege that Defendant Town of Hancock, New York, and its code enforcement officer,
Defendant Michael Salvatore, violated Plaintiffs' rights under the Due Process and Equal
Protection Clauses in relation to Plaintiffs' efforts to secure a building permit for their property.
After the completion of a trial, the jury found in Plaintiffs' favor and awarded compensatory
damages in the amount of $107,000.00. See Dkt. No. 81. Currently pending before the Court are

Plaintiffs' motion for attorney's fees and Defendants' post-trial motion for judgment as a matter of
law. See Dkt. Nos. 89, 92.

II. BACKGROUND
A.

Procedural History
On June 22, 2012, Plaintiffs Douglas, LeeAnn, and Devon Norwood (the "Norwoods" or

"Plaintiffs") and Paul and Lena Orlowski (the "Orlowski Plaintiffs") filed their initial complaint,
which alleged violations of each Plaintiffs' substantive due process and equal protection rights,
requested declaratory relief as to the Norwood Plaintiffs, and asserted a malicious prosecution
claim as to the Orlowski Plaintiffs. See Dkt. No. 1. On April 10, 2013, this Court granted
Defendants' Rule 12(b)(5) motion to dismiss for insufficient service as to Defendant Salvatore in
his personal capacity and denied the motion as to Defendant Town of Hancock and Defendant
Salvatore in his official capacity. Dkt. No. 15 at 5-9. This Court also dismissed the Norwood
Plaintiffs' equal protection claim and request for declaratory relief and the Orlowski Plaintiffs'
substantive due process, equal protection, and malicious prosecution claims pursuant to Rule
12(b)(6). Id. at 9-27. The April 10 order further granted Plaintiffs leave to amend their complaint
as to their equal protection claims, denied Defendants' motion to dismiss on qualified immunity
grounds, and did not dismiss the Norwood Plaintiffs' substantive due process claim. Id. at 22-23,
27-29.
On May 6, 2013, Plaintiffs filed an amended complaint expanding the allegations
regarding their equal protection claims. See Dkt. Nos. 19, 19-1. On January 17, 2014, the Court
dismissed the Norwood Plaintiffs' equal protection claims and the Orlowski Plaintiffs' selective
enforcement equal protection claim. See Dkt. No. 29. The Court denied Defendants' motion to
dismiss as to the Orlowski Plaintiffs' "class of one" equal protection claim. Id. at 21-22. After
2

the Court's January 17, 2014 Order, the only causes of action remaining were the Norwood
Plaintiffs' substantive due process claim and the Orlowski Plaintiffs' "class of one" equal
protection claim. See id. at 22.
On January 31, 2014, Defendants filed their answer to Plaintiffs' amended complaint.
Dkt. No. 30. After discovery, Defendants moved for summary judgment on June 30, 2014. Dkt.
No. 42. On February 13, 2015, the Court granted Defendants' motion for summary judgment as
to the Orlowski Plaintiffs' equal protection claim. Dkt. No. 52. Following this order, the
Orlowski Plaintiffs were terminated from the action and the Norwood Plainitffs' substantive due
process claim was the only claim that remained for trial. Id. at 23 n.12.
This matter proceeded to trial on June 1, 2015. At the close of Plaintiffs' case, Defendants
moved for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50. See Dkt.
Nos. 94-96, Trial Transcripts ("T."), at 192. The motion asserted that Plaintiffs failed to show
both that Defendants acted in a manner that was outrageous and shocking to the conscience and
also that Defendant Salvatore acted pursuant to a town policy or custom. T. at 192. Finding that
Plaintiffs had presented certain evidence to establish these elements, the Court reserved its
decision on Defendants' motion. T. at 220. The jury returned a verdict in Plaintiffs' favor,
awarding $107,000.00 in compensatory damages. See Dkt. No. 79.

B.

Trial Testimony1
1. Douglas Norwood
Mr. Norwood testified that he generally enjoyed living in East Branch and the community

The record below frames the trial testimony in the light most favorable to Plaintiffs and
disregards "'all evidence favorable to [defendants] that the jury was not required to believe.'"
Toporoff Eng'rs, P.C. v. Fireman's Fund Ins. Co., 371 F.3d 105, 108 (2d Cir. 2004) (quoting
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 113, 151 (2000)).
1

3

around him. T. at 60-62. He lived in a home with his wife and four children, which burned down
in May of 2008. T. at 62. The house was covered for approximately $90,000 in insurance, which
the Norwoods received from the insurance company six to eight months after the fire. T. at 63,
64. Mr. Norwood first spoke to Mr. Salvatore at his office several months after cleaning up the
debris from their burned house. T. at 67. At this meeting, Mr. Norwood presented Mr. Salvatore
with a building permit application with plans to build a modular home on a concrete slab. T. at
69. Mr. Salvatore said that Plaintiffs could not build the modular house on the ground, but would
have to build it elevated to the Federal Emergency Management Agency ("FEMA") elevation
specs since the building site was located in a designated floodplain. T. at 69. Mr. Salvatore
indicated that the Norwoods would need professional plans from an engineer to meet the FEMA
requirements and did not accept the building permit application for the modular home. T. at 70.
At a town meeting discussing rebuilding the Norwoods' home, Mr. Salvatore indicated
that "he didn't know if he would issue a permit at all" even if the Norwoods could build to
floodplain specs. T. at 73-74. However, Mr. Norwood submitted a new application with the
required engineer certification and Mr. Salvatore accepted the application, saying that "everything
was in order and looked fine." T. at 78. The application states that the amount enclosed is
$261.00, which was not written in Mr. Norwood's handwriting. T. at 78-79; Dkt. No. 89-2. Mr.
Norwood testified that he paid this amount in cash to Mr. Salvatore. T. at 78. Mr. Salvatore
accepted this application and gave a second copy of the construction plans back to Mr. Norwood,
which he understood to mean that he would be issued a building permit. T. at 79. After accepting
the application, Mr. Salvatore told Mr. Norwood that he "could go ahead and start the footings."
T. at 79-80. The Norwoods began construction on their new home in mid-spring of 2009. T. at
81.
4

The first work that Mr. Norwood did on the house was to put the footings in. T. at 81.
After this, Mr. Salvatore came to the building site to conduct a first inspection. T. at 81. After
ten days, Mr. Salvatore came back for a second inspection to make sure the cement was poured
correctly and that the rebar was set in the correct place. T. at 82-83. Mr. Salvatore "said
everything looked fine" and did not tell Mr. Norwood to stop construction on his home. T. at 83.
After approximately another week, Mr. Salvatore conducted a third inspection of the concrete
Sonotubes and, once again, told Mr. Norwood that "everything was up to code and looked good."
T. at 84-85. Up to this point, Mr. Norwood had spent approximately $22,000 to $23,000 on
rebuilding the house. T. at 84.
After the third inspection, Mr. Norwood put in girders and floor joists, which cost
approximately $3,000 to $5,000. T. at 86. After this, Mr. Salvatore came back to the house and
told Mr. Norwood to stop working because he did not have his building permit attached to the
side of the house, and that he should come to Mr. Salvatore's office on Monday to resolve the
issue. T. at 87. Mr. Norwood classified this as a "verbal stop work order." T. at 87. Mr.
Norwood spent approximately $30,000 on the process of rebuilding his house before he was told
to stop the construction. T. at 93.
The following Monday at the meeting, Mr. Salvatore told Mr. Norwood that "he didn't
think that . . . the town was going to issue [Plaintiffs] a permit at that time." T. at 89. Mr.
Salvatore did not mention anything about the payment of the application fee at this meeting. T. at
90. Rather, Mr. Salvatore said "I don't think I'd like you to build there anyway because if
anything happened to you or your family and your home, I would feel responsible." T. at 89. Mr.
Norwood was upset after hearing this and left without any further conversation with Mr.
Salvatore. T. at 89. Mr. Norwood never received a written stop work order and never followed
5

up with the town to see if he could get his permit after this meeting. T. at 97, 98. Eventually,
Plaintiffs sold their property for $1,000. T. at 93. Mr. Norwood did not know what his property
would have been worth if he had completed the construction on his home. T. at 106.
Immediately after the fire destroyed their house, Mr. and Mrs. Norwood moved with their
two youngest children to Mrs. Norwood's mother's home, while the other two children moved in
with their uncle across the street. T. at 63. After realizing that they would not be able to
complete their home, the whole family moved in with Mrs. Norwood's father. T. at 91. The
family proceeded to move six times in the next seven years. T. at 91.
Mr. Norwood testified that, while the denial of the building permit did not immediately
affect his relationship with his wife, they are currently separated, with Mrs. Norwood and the two
youngest children living approximately 45 minutes away. T. at 92, 94. Mr. Norwood testified
that felt mad and upset when Mr. Salvatore first told him that he would not be able to continue
constructing his home, saying that "it sucks" to have spent so much time and money to no avail.
T. at 89, 93, 95. Mr. Norwood testified that he was depressed after his house burned down and
their family was separated. T. at 92. However, on cross examination he stated the following:
Q
A
Q
A

You personally are not claiming medical damages as part of
this case; is that right?
Yes.
And you personally are not claiming emotional distress
damages as part of this case; is that right? . . .
Yes, that's right.

T. at 102.

2. Mrs. LeeAnn Norwood
Mrs. Norwood testified that, after her husband had the last meeting with Mr. Salvatore, he
came home and told her that "Mr. Salvatore said we could not continue to build." T. at 131. Mrs.
6

Norwood considered this to be a final decision denying their building permit. T. at 133. She
testified that she and her husband were both "devastated" when Mr. Salvatore told him to stop
building. T. at 132.
Mrs. Norwood testified that her performance at work suffered after they were denied the
building permit, stating that she "became distant, withdrawn, [and] couldn't concentrate." T. at
136. She told the jury that "it was hard for [her] to get through the day without crying." T. at
136. She was prescribed Effexor by her primary care physician to treat her depression, and had to
be hospitalized overnight on one occasion because she overdosed on this medication. T. at 13637. Mrs. Norwood stated that her depression affected her marriage because she was distant,
causing Mr. Norwood to become distant. T. at 137. She stated that the burning of their home and
Mr. Norwood's disability contributed to her depression and recognized that not all of their
problems were caused by Mr. Salvatore's actions. T. at 142. However, the denial of the building
permit was "one of the main stressors" in her life. T. at 144.

3. Devon Norwood
Devon Norwood testified that his parents were "both very depressed" when their building
permit was denied. T. at 152. Specifically, his mother "would lay in bed and cry and sleep a lot
more." T. at 152. Devon "didn't like" moving after they could not build their home and felt sad
that he could not see his siblings as much. T. at 153, 154.

4. Michael Salvatore
Mr. Salvatore testified that his job as code enforcement officer is to enforce the Town of
Hancock local building codes, local floodplain laws, and the State of New York building codes.
T. at 222-23. He recognized that the town law states that he is authorized to collect permit fees.
7

T. at 157. Despite this, he testified that the "town's procedure has never been to have the code
enforcement officer collect the fees." T. at 157.
Mr. Salvatore rejected Mr. Norwood's first building permit application for a modular
home and gave the application back to Mr. Norwood. T. at 167. The second building permit
application contained updated plans and also a floodplain development permit application, which
contained a notation indicating a permit fee of $35. T. at 170. Mr. Salvatore accepted and filed
the building permit and floodplain development permit applications when Mr. Norwood
submitted them. T. at 172. All of the applications were properly filed. T. at 173. However, Mr.
Salvatore testified that he did not issue the Norwoods' building permit because they failed to pay
the required application fee. T. 235-36. Nonetheless, Mr. Salvatore permitted the Norwoods to
do substantial work on their house prior to receiving a building permit because he "assumed with
discussions with them that they were going to pay [him] for the permit once they received their
insurance money." T. at 237. Mr. Salvatore testified in a conflicting manner concerning how he
would handle permit applications that did not contain the required fee. First, he stated that he
would "hand back the applications and refuse to accept them" if they did not contain the fees. T.
at 238. Then, he stated that applications would often come in without fees and the Town would
only receive the fees after the permit had been approved. T. at 239.
After receiving the applications, Mr. Salvatore specifically allowed the Norwoods to begin
construction on their home. T. at 173. Mr. Salvatore inspected the building on three or more
occasions and never objected to the way the work was being done, noting that there was never
any work that the Norwoods did that failed to comply with the town law. T. at 173, 182. Mr.
Salvatore knew that the ongoing construction was costing the Norwoods thousands of dollars. T.
at 174. It was a common occurrence for Mr. Salvatore to allow applicants to begin construction
8

prior to being granted a building permit. T. at 237-38. When asked on cross examination about
this practice, the following exchange occurred:
Q

A
Q
A
Q
A
Q
A
Q
A
Q
A
Q
A

It's fair to say that because you stated it was a common practice to allow
people to perform work before the building permit was issued . . . if it was
common, it was part of the town's policy. Correct?
Certain circumstances, correct.
Right. That there was leeway?
Yeah.
Even though the town law says you can't do it, right?
Yeah.
And even though the town law doesn't say that and doesn't allow it, that
leeway or discretion lies with you. Correct?
Correct.
***
In fact, you report to the town board every month. You just
said it yourself. Right?
Yes, I do.
You go to those town meetings. Correct?
Correct.
And so the town board is aware of this policy. Correct?
Correct.

T. at 259-60.
Mr. Salvatore acknowledged that at a September 9, 2008 Town Board meeting, he said
that he would likely still have to deny Plaintiffs' permit even if it met the floodplain regulations.
T. at 243-44. However, this was because of more stringent New York building laws, and did not
suggest that "they would not be able to get a building permit if they complied with all the
applicable floodplain requirements." T. at 244. Mr. Salvatore later clarified that there was no
reason that he would deny a permit application if the applicant complied will all applicable laws
and paid the appropriate fees. T. at 246.

5. Relevant Town Law Provisions
The evidence submitted at trial included the Town of Hancock "Local Law Providing for
9

the Administration and Enforcement of the New York State Uniform Fire Prevention and
Building Code, Local Law #1 of 2007" (the "Town Law"). See Dkt. No. 89-3. Section 3 of that
law establishes the powers and responsibilities of the code enforcement officer. Id. at 3.
Specifically, section 3(a) states that "[t]he Code Enforcement Officer shall administer and enforce
all the provisions of the Uniform Code, the Energy Code and this local law." Id. The relevant
duties of the code enforcement officer are as follows:
The Code Enforcement Officer shall have the following powers and
duties:
(1) to receive, review, and approve or disapprove
applications for Building Permits, . . . ;
(2) upon approval of such applications, to issue Building
Permits, . . . and to include in Building Permits . . . such
terms and conditions as the Code Enforcement Officer may
determine to be appropriate;
***
(8) to collect fees as set by the Town Board of this Town.
Id. at 3-4.
Section 4 pertaining to Building Permits provides as follows:
(a) Building Permits Required. . . . a Building Permit shall be
required for any work which must conform to the Uniform Code
and/or the Energy Code . . . . No Person shall commence any work
for which a Building Permit is required without first having
obtained a Building Permit from the Code Enforcement Officer.
***
(e) Construction documents. . . . the return of a set of accepted
construction documents to the applicant shall not be construed as
authorization to commence work, nor as an indication that a
Building Permit will be issued. Work shall not be commenced until
and unless a Building Permit is issued.
(f) Issuance of Building Permits. . . . The Code Enforcement Officer
shall issue a Building Permit if the proposed work is in compliance
with the applicable requirements of the Uniform Code and Energy Code.
***
(k) Fee. The fee specified in or determined in accordance with the
10

provisions set forth in . . . this local law must be paid at the time of
submission of an application for a Building Permit . . . .

Id. at 5-8.
Section 6 pertaining to stop work orders provides as follows:
(a) Authority to issue. . . . The Code Enforcement Officer shall
issue a Stop Work Order to halt:
***
(3) any work for which a Building Permit is required which
is being performed without the required Building Permit . . .
(b) Content of Stop Work Orders. Stop Work Orders shall (1) be in
writing, (2) be dated and signed by the Code Enforcement Officer,
(3) state the reason or reasons for issuance, and (4) if applicable,
state the conditions which must be satisfied before work will be
permitted to resume.
Id. at 9.

III. DISCUSSION
A.

Attorney's Fees
Pursuant to § 1988, "[i]n any action or proceeding to enforce a provision of section[] . . .

1983 . . . of this title, . . . the court, in its discretion, may allow the prevailing party . . . a
reasonable attorney's fee as part of the costs." 42 U.S.C. § 1988(b). "Determining whether an
award of attorney's fees is appropriate requires a two-step inquiry. First, the party must be a
'prevailing party' in order to recover. If [it] is, then the requested fee must also be reasonable."
Pino v. Locascio, 101 F.3d 235, 237 (2d Cir. 1996) (internal citations omitted).
To award fees pursuant to § 1988, a party is considered a prevailing party if they
"succeed[ed] on any significant issue in litigation which achieves some of the benefit the parties
sought in bringing suit." Farrar v. Hobby, 506 U.S. 103, 109 (1992) (internal quotation marks
omitted) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). "To qualify for attorney's
11

fees, there must be a 'judicially sanctioned change in the legal relationship of the parties.'" Kirk v.
N.Y. State Dep't of Educ., 644 F.3d 134, 137 (2d Cir. 2011) (quoting Buckhannon Bd. & Care
Home, Inc. v. W.V. Dep't of Health & Human Res., 532 U.S. 598, 605 (2001)). "In short, a
plaintiff 'prevails' when actual relief on the merits of his claim materially alters the legal
relationship between the parties by modifying the defendant's behavior in a way that directly
benefits the plaintiff." Farrar, 506 U.S. at 111-12. Section 1988 "has been interpreted to create a
strong preference in favor of the prevailing party's right to fee shifting," and therefore, a
prevailing party "'should ordinarily recover an attorney's fee unless special circumstances would
render such an award unjust.'" Wilder v. Bernstein, 965 F.2d 1196, 1201-02 (2d Cir. 1992)
(quoting S. Rep. No. 94-1011, at 4 (1976), reprinted in 1976 U.S.C.C.A.N. 5908, 5912).
A party may recover fees under § 1988 even if it does not prevail on every claim pleaded
in the complaint. See Fox v. Vice, 563 U.S. 826, 131 S. Ct. 2205, 2214, 180 L. Ed. 2d 45 (2011).
Generally, these types of cases fall in one of two categories; where the parties presented wholly
unrelated claims, some prevailing and others not, and where the parties presented several
interrelated claims, only some of which prevailed. See Hensley, 461 U.S. at 436. The court
should not award compensation for time that can be clearly delineated as spent on unsuccessful
claims. See Fox, 131 S. Ct. at 2214. If, however, a party prevails on only one of several
interrelated claims, or an attorney represents several related parties and only a portion are
successful, then the court may reduce the award to reflect a reasonable amount of time spent on
the prevailing portions of the case. See Hensley, 461 U.S. at 436-37. When an attorney
represents multiple parties and not all prevail, the court need not categorically reduce the award
by the proportion of unsuccessful parties, but should exercise discretion to reduce the fee to
reflect a reasonable amount of time spent on the prevailing party's case. See Adorno v. Port Auth.
12

of N.Y. & N.J., 685 F. Supp. 2d 507, 518 (S.D.N.Y. 2010) (reducing an award by 60% when only
two of seven plaintiffs prevailed).
"[I]n awarding attorneys' fees, 'the most critical factor is the degree of success obtained.'"
Patterson v. Balsamico, 440 F.3d 104, 123 (2d Cir. 2006) (quoting Hensley, 461 U.S. at 436)
(other citation omitted). "If . . . a plaintiff has achieved only partial or limited success, the
product of hours reasonably expended on the litigation as a whole times a reasonable hourly rate
may be an excessive amount." Hensley, 461 U.S. at 436. In reducing the amount of attorney's fee
awards, "[t]here is no precise rule or formula for making these determinations. The district court
may attempt to identify specific hours that should be eliminated, or it may simply reduce the
award to account for the limited success." Id. at 436-37.
In this case, Defendants assert three main arguments for why Plaintiffs' fees should be
reduced to "less than fifty percent of the amount requested"; any time spent on the Orlowski
Plaintiffs' claims should not be compensated, the time spent on the Norwood Plaintiffs' claims
that were dismissed prior to trial should be substantially reduced, and the trial preparation time
should be reduced to reflect Plaintffs' unsuccessful arguments in response to Defendants' motions
in limine. See Dkt. No. 102-1 at ¶¶ 16-19.
This case was commenced by two sets of plaintiffs, the Norwoods and the Orlowskis,
asserting eight causes of action. See Dkt. Nos. 1, 19. As the Orlowski Plaintiffs did not prevail
on any of their claims, let alone get to trial, Defendants argue that Plaintiffs' counsel should not be
awarded any fees in connection to the work done for the unsuccessful Plaintiffs. See Dkt. No.
102-1 at ¶ 16. While the claims of each set of Plaintiffs were asserted against the same
Defendants, Plaintiffs' counsel admits that Defendant Salvatore "engaged in separate and distinct
courses of wrongful conduct" against each of the Plaintiffs. Dkt. No. 92-1 at ¶ 9. Thus, even
13

though the cases were brought together and the "allegations were all somewhat similar," the work
performed on the Orlowski Plaintiffs' case was not inextricably linked to the Norwood Plaintiffs'
case as to justify compensation for the full amount of time spent on their case. Id. at ¶ 6; see also
Adorno, 685 F. Supp. 2d at 517 (noting that in a multi-plaintiff case, despite "some minor
overlap," counsel should not be "compensated for the time spent prosecuting the unsuccessful
plaintiffs' claims"). However, the work done on the Orlowski Plaintiffs' claims was not entirely
irrelevant to the prevailing claims, as both sets of Plaintiffs disclosed the same non-party
witnesses who were required to be deposed in this case. See Dkt. No. 104-1 at 2 n.1.
Accordingly, a reduction, but not a complete elimination, from Plaintiffs' attorney's time is
necessary to account for the non-prevailing parties.
Defendants assert that any fee award "should be substantially reduced to reflect the extent
to which Plaintiffs' counsel's time in drafting complaints, conducting discovery, and opposing
dispositive motions" was spent on the dismissed claims asserted by the Norwood Plaintiffs. Dkt.
No. 102-1 at ¶ 17. The Norwood Plaintiffs' equal protection claims and request for declaratory
relief were dismissed by this Court's granting of Defendants' motions to dismiss. See Dkt. Nos.
15, 29. As some of the Norwood Plaintiffs' claims presented wholly different arguments from
those that succeeded at trial, such as attempting to prove the existence of a race-based zoning
scheme, the Court finds that a reduction in the time spent responding to Defendants' dispositive
motions is warranted. See Hensley, 461 U.S. at 440.
From January 1, 2011 through March 20, 2015, Plaintiffs' counsel spent a total of 79.4
hours on this case in the dispositive motion stage and prior to the Orlowski Plaintiffs' dismissal.
See Dkt. No. 92-2 at 1-7. While certain time entries during this period clearly state that work was
being performed for the Orlowski Plaintiffs or on one of the Norwood Plaintiffs' unsuccessful
14

claims, the mixed descriptions of the majority of the time entries does not allow for the Court to
categorically exclude all the hours spent on unsuccessful claims. See Patterson v. Balsamico, 440
F.3d 104, 123-24 (2d Cir. 2006) (noting that a court must provide an explanation for any specific
hours that it deems unreasonable). Thus, the Court finds that a 50% reduction to the time spent
on the preliminary portion of this case is reasonable in light of the unfavorable outcome for the
Orlowski Plaintiffs and the numerous other claims dismissed by Defendants' dispositive motions.
Plaintiffs' counsel spent approximately 4.4 hours drafting the opposition to Defendants'
motions in limine and approximately 20 minutes addressing the same issues with the Court in a
pretrial meeting. See Dkt. No. 92-2 at 8-9; Dkt. No. 72. Plaintiffs did not oppose every element
of Defendants' motion in limine, see Dkt. No. 70 at 3, and only presented arguments on issues that
counsel believed would support their remaining substantive due process claim, see id. at 4 (noting
that "Defendant Salvatore's reason for denying Plaintiffs' permit application is crucial to Plaintiffs'
claim"). During trial, Plaintiffs' counsel approached the Court seeking to have the Orlowski
Plaintiffs testify as to their interactions with Defendant Salvatore. T. at 145-49. While ultimately
unsuccessful in this request, counsel had a legitimate purpose behind his request, to show a
repeated course of Defendant Salvatore allowing work to be done on a property without first
granting a building permit, and the exchange lasted only eight minutes. See id.; Dkt. No. 72. The
Court concludes that Plaintiffs' arguments on these evidentiary issues were not so unfounded as to
constitute an unreasonable trial strategy and, thus, do not mandate a reduction to time spent at
trial and on trial preparation. See Crawford v. City of New London, 3:11-CV-1371, 2015 WL
1125491, *7-8 (D. Conn. Mar. 12, 2015) (noting that time spent on unsuccessful evidentiary
motions is compensable so long as it was part of "a reasonable litigation strategy" (citing
Gierlinger v. Gleason, 160 F.3d 858, 880 (2d Cir. 1998)).
15

The Court finds that the 115.4 hours spent from April 1, 2015 through July 7, 2015 in trial
and on trial preparation is reasonable in light of the issues raised in this case and the complexity
of § 1983 litigation. However, the Court notes that, despite receiving a total judgment of
$107,000.00, the Norwood Plaintiffs received only a fraction of the $750,000.00 sought by both
sets of Plaintiffs in their complaint. See Dkt. No. 19. Further, neither set of Plaintiffs were
awarded their building permits or certificates of occupancy as sought in their requests for
declaratory relief. See id. Accordingly, the Court reduces the award for the amount of time spent
during trial and in trial preparation by 10%. See Barfield v. N.Y.C. Health & Hosps. Corp., 537
F.3d 132, 152 (2d Cir. 2008) ("Both 'the quantity and quality of relief obtained,' as compared to
what the plaintiff sought to achieve as evidenced in her complaint, are key factors in determining
the degree of success achieved" (quoting Carrol v. Blinken, 105 F.3d 79, 81 (2d Cir. 1997)).
The rate of $250 per hour is reasonable for an attorney in the Northern District of New
York. See Scott v. Hand, No. 07-CV-0221, 2010 WL 1507016, *2 (N.D.N.Y. Apr. 15, 2010).
Further, travel time is compensated at half of the attorney's prevailing rate. See id. Accordingly,
the Court awards Plaintiffs the following attorney's fees, adjusted as discussed above. See Dkt.
No. 92-2.
Date Range

Time (hours)

Hourly Rate

Percent
Reduction

Amount
Awarded

1/1/2011 12/31/2011

18.6

$250

50%

$2,325.00

1/1/2012 12/31/2012

13.2

$250

50%

$1,650.00

1/1/2013 12/31/2013

10.9

$250

50%

$1,362.50

1/1/2014 6/30/2014

16.4

$250

50%

$2,050.00

16

7/1/2014 12/31/2014

15.3

$250

50%

$1,912.50

1/1/2015 3/31/2015

5

$250

50%

$625.00

4/1/2015 5/31/2015

72.1

$250

10%

$16,222.50

6/1/2015 7/7/2015

43.3

$250

10%

$9,742.50

Travel Time

9.1

$250

50%

$1,137.50

Total

$37,027.50
Plaintiffs' request for reimbursement of costs in the amount of $350 for filing fees, $80 for

process server fees, and $431.85 for lodging during trial are all compensable under § 1988. See
O'Grady v. Mohawk Finishing Prods., Inc., No. 96-CV-1945, 1999 WL 30988, *8 (N.D.N.Y. Jan.
15, 1999) (lodging); Spence v. Ellis, No. CV 07-5249, 2012 WL 7660124, *8 (E.D.N.Y. Dec. 19,
2012), adopted by 2013 WL 867533 (Mar. 7, 2013) (process server and filing fees). Accordingly,
the Court awards costs to Plaintiffs in the amount of $861.85.

B.

Judgment as a Matter of Law
1. Standard of Review
A Rule 50 motion for judgment as a matter of law may only be granted where the

evidence, viewed in the light most favorable to the nonmoving party, "'is such that, without
weighing the credibility of the witnesses or otherwise considering the weight of the evidence,
there can be but one conclusion as to the verdict that reasonable men could have reached.'" Sir
Speedy, Inc. v. L & P Graphics, Inc., 957 F.2d 1033, 1038-39 (2d Cir. 1992) (quoting Simblest v.
Maynard, 427 F.2d 1, 4 (2d Cir. 1970)) (other citation omitted). A judgment will only be set
aside if there was "such a complete absence of evidence supporting the verdict that the jury's
17

findings could only have been the result of sheer surmise and conjecture." Dailey v. Societe
Generale, 108 F.3d 451, 455 (2d Cir. 1997) (quotation omitted). A district court may only
consider issues in a renewed Rule 50 motion that were raised in a motion for directed verdict
prior to judgment being decided in the case. Cruz v. Local Union No. 3 of the Int'l Bhd. of Elec.
Workers, 34 F.3d 1148, 1155 (2d Cir. 1994).
During trial, Defendants moved for judgment as a matter of law at the close of Plaintiffs'
case on two separate grounds: "(1) Plaintiffs failed to prove an outrageously arbitrary or
'conscience-shocking' deprivation of a property right; and (2) Plaintiffs failed to prove that Mr.
Salvatore's actions were performed pursuant to a municipal policy or custom." Dkt. No. 89-1 at ¶
5; T. at 192. Defendants' instant motion renews the same arguments that were raised at trial. See
Dkt. No. 89-1 at ¶ 6.

a. Conscience-Shocking Deprivation of Property Right
In order to recover on a substantive due process claim, a plaintiff must demonstrate that
(1) he was deprived of "a valid 'property interest' in a benefit that was entitled to constitutional
protection at the time [he] was deprived of that benefit," and (2) that the defendants' actions in
depriving him of that interest were "'so outrageously arbitrary as to be a gross abuse of
governmental authority.'" Lisa's Party City, Inc. v. Town of Henrietta, 185 F.3d 12, 17 (2d Cir.
1999) (quoting Natale v. Town of Ridgefield, 170 F.3d 258, 263 (2d Cir. 1999)) (other citation
omitted); see also Ferran v. Town of Nassau, 471 F.3d 363, 369-70 (2d Cir. 2006) (holding that
the plaintiff must establish that the government misconduct was "'arbitrary,'
'conscience-shocking,' or 'oppressive in the constitutional sense,' not merely 'incorrect or
ill-advised'" (internal quotation marks and citation omitted)).
In the land use and zoning context, "federal courts should not become zoning boards of
18

appeal to review nonconstitutional land use determinations." Brady v. Town of Colchester, 863
F.2d 205, 215 (2d Cir. 1988) (quoting Sullivan v. Town of Salem, 805 F.2d 81, 81 (2d Cir. 1986)).
Rather, a substantive due process claim only arises when the government acts "arbitrar[ily] or
irrational[ly] . . . with no legitimate reason for its decision." Ahmed v. Town of Oyster Bay, 7 F.
Supp. 3d 245, 259 (E.D.N.Y. 2014) (quoting Southview Assocs., Ltd. v. Bongartz, 980 F.2d 84,
102 (2d Cir. 1992)) (other citations omitted); see also Sullivan, 805 F.2d at 81. There is no rigid
standard for what constitutes a violation of an individual's substantive due process rights, and
each case must be analyzed in its specific context to determine whether a government's action was
"conscience shocking." Cnty. of Sacramento v. Lewis, 523 U.S. 833, 850 (1998) ("[O]ur concern
with preserving the constitutional proportions of substantive due process demands an exact
analysis of circumstances before any abuse of power is condemned as conscience shocking").
In this case, there are two potential explanations that the jury could have considered for
why Plaintiffs were not issued a building permit. First, Mr. Salvatore testified that the only
reason Plaintiffs did not receive their building permit was because they did not pay the
application fees. T. at 235-36. Second, Mr. Norwood testified that, when he was informed that
the Town was not going to issue the building permit, Mr. Salvatore told him "I don't think I'd like
you to build there anyway because if anything happened to you or your family and your home, I
would feel responsible." T. at 89. Regardless of which reason the jury credited for the failure to
issue Plaintiffs' building permit, neither provided a legitimate legal basis for Mr. Salvatore's
actions.
Town Law § 4(f) states that "[t]he Code Enforcement Officer shall issue a Building Permit
if the proposed work is in compliance with the applicable requirements" of the building codes,
floodplain regulations, and permit application procedures. Dkt. No. 89-3 at 7. Defendant
19

Salvatore testified that Plaintiffs' application satisfied all building code and floodplain regulation
requirements. T. at 172-73, 184. Giving credit to Mr. Norwood's testimony that he paid the
application fee, as the Court must do on this motion, the Town Law did not grant Mr. Salvatore
with any reason not to issue the building permit. While the lack of a legitimate legal basis for the
failure to issue the permit is itself sufficient to constitute a "conscience shocking" governmental
action, the specific circumstances of this case make it all the more shocking. Specifically,
Defendant Salvatore personally inspected Plaintiffs' property and knew that they had invested
substantial amounts of money into the reconstruction of their home. T. at 173-74. Despite
knowledge of this substantial investment and receipt of Plaintiffs' completed permit application,
Defendant Salvatore failed to issue a building permit notwithstanding the Town Law's clear
mandate that he do so.
Defendants contend that Mr. Salvatore's actions could not have been a conscience
shocking abuse of governmental authority since he never issued a written stop order or a written
denial of Plaintiffs' building permit application. Dkt. No. 89-5 at 5-6. However, it is the failure
to issue the building permit after Plaintiffs submitted a properly documented and paid for
application, in spite of the Town Law's clear mandate requiring the issuance of such permit, that
is the conscience shocking action. That Defendant Salvatore never actually issued a written
denial of the building permit does not negate the fact that he consciously flouted the requirements
of the Town Law while allowing Plaintiffs to expend thousands of dollars in construction costs in
expectation of the Town Laws being enforced.
Accordingly, the Court finds that sufficient credible evidence supported the jury's finding
that Defendant Salvatore's actions amounted to an "outrageously arbitrary or 'conscienceshocking' deprivation of [Plaintiffs'] property right." Dkt. No. 89-1 at ¶ 5.
20

b. Municipal Policy or Custom
When a governmental official is sued in his official capacity, "a governmental entity is
liable under § 1983 only when the entity itself is a moving force behind the deprivation; thus, in
an official-capacity suit the entity's policy or custom must have played a part in the violation of
federal law." Kentucky v. Graham, 473 U.S. 159, 166 (1985) (internal citations and quotation
marks omitted). A municipal policy may be established by the single act giving rise to a
plaintiff's claims if it was "committed by a city official 'responsible for establishing final policy
with respect to the subject matter in question,' and . . . represent[ed] a deliberate and considered
choice among competing alternatives." Hall v. Town of Brighton, No. 13-CV-6155, 2014 WL
340106, *5 (W.D.N.Y. Jan. 30, 2014) (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 48384 (1986) (plurality opinion)). When a plaintiff attempts to prove municipal liability "by a city
employee's single tortious decision or course of action, the inquiry focuses on whether the actions
of the employee in question may be said to represent the conscious choices of the municipality
itself." Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 126 (2d Cir. 2004) (citing Pembaur,
475 U.S. at 481-82). Thus, the single unconstitutional act of an official with "final policymaking
authority" can subject a municipality to liability under § 1983. Pembaur, 475 U.S. at 483.
Whether a municipal employee has "'final policymaking authority' is a question of state
law" to be decided by the court.2 See Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989)
(quoting St. Louis v. Praprotnik, 485 U.S. 112, 108 S. Ct. 915, 99 L. Ed. 2d 107 (1998)). Such a

While neither party raised the issue during trial or in their post trial motions, the Court
notes that it should have made a finding as a matter of law as to whether Defendant Salvatore was
a policymaker for the Town before the case was submitted to the jury. The Court finds that this
error was harmless in light of the jury's findings and the Court's conclusion on this issue upon this
post-trial review.
2

21

determination is made by "[r]eviewing the relevant legal materials, including state and local
positive law, as well as '"custom or usage" having the force of law.'" Id. (quoting Praprotnik, 485
U.S. at 124 n.1). Importantly, "the official in question need not be a municipal policymaker for
all purposes. Rather, with respect to the conduct challenged, he must be 'responsible under state
law for making policy in that area of the [municipality's] business.'" Jeffes v. Barnes, 208 F.3d
49, 57 (2d Cir. 2000) (quoting Praprotnik, 485 U.S. at 123) (other citations omitted). Further, the
"official policy" standard "refers to formal rules or understandings – often but not always
committed to writing – that are intended to, and do, establish fixed plans of action to be followed
under similar circumstances consistently and over time." Pembauer, 475 U.S. at 480-81. Thus,
the actions of an officer who does not have explicit policymaking authority may, nonetheless,
constitute "official policy" if his decisions are accepted as the binding and ordinary course of
conduct by the authorized policymakers. See Praprotnik, 485 U.S. at 127 ("If the authorized
policymakers approve a subordinate's decision and the basis for it, their ratification would be
chargeable to the municipality because their decision is final").
New York Town Law § 261 grants town boards with the authority to create local laws that
establish the mechanisms to enforce local and state building codes and to create and enforce
zoning regulations. N.Y. TOWN LAW § 261. The Town of Hancock has established a Town Law
that defines the requirements and procedures to regulate New York's uniform fire prevention and
building codes. See Dkt. No. 89-3. This Town Law created Defendant Salvatore's position of the
code enforcement officer. See id. at 3. Specifically, "[t]he Code Enforcement Officer shall
administer and enforce all the provisions of the Uniform Code, the Energy Code and this local
law." Id. Defendant Salvatore also testified that his responsibilities consisted solely of enforcing
the local laws and New York state building laws. T. at 222-23. Thus, neither the State nor the
22

Town laws explicitly grant Defendant Salvatore the discretion or authority to design, implement,
or alter any of the provisions or policies contained in either the local or state building laws.
However, in this case, the inquiry into Defendant Salvatore's policymaking authority cannot end
with the strict reading of these laws.
While the code enforcement officer has not been explicitly granted the authority to
establish town policy, the evidence presented at trial evinces that the town board allowed
Defendant Salvatore to deliberately disregard the written Town Law and effectively ratified his
actions at town board meetings and by allowing his "unwritten rules" to be the standard of
conduct in issuing building permits in Hancock. First, Town Law § 3(a)(8) states that the code
enforcement officer shall "collect fees as set by the Town Board." Dkt. No. 89-3 at 4. However,
Defendant Salvatore repeatedly testified that he did not collect fees for building permit
applications and that the "Town's procedure has never been to have the code enforcement officer
collect the fees." T. at 155, 157, 233, 264.
Second, § 4(k) of the Town Law states that the fee for building permit applications "must
be paid at the time of submission of an application for a Building Permit." Dkt. No. 89-3 at 8.
Despite this, Defendant Salvatore testified that he would regularly receive and accept permit
applications that did not contain the required fees. T. at 239. In these instances, the applicants
would only pay the fees once the permit had been approved. Id.
Third, Town Law § 6(a)(3) states that a written stop work order shall be issued to halt
"any work for which a Building Permit is required which is being performed without the required
Building Permit." Dkt. No. 89-3. After allowing Plaintiffs to commence their construction
despite not having a building permit, and after inspecting their work on three separate occasions,
Defendant Salvatore decided that it was time to stop the construction due to the lack of a permit.
23

Even with this decision, Defendant Salvatore did not follow the Town Law requiring the issuance
of a written stop work order. Rather, he verbally told Mr. Norwood to stop doing the work, which
Mr. Norwood classified as a "verbal stop work order." T. at 87. Defendant Salvatore never
issued a written stop work order for the Norwoods' house. T. at 97, 239. Moreover,
notwithstanding the verbal nature of Defendant Salvatore's stop work order, he likewise violated
the Town Law requirement that such stop work orders shall "state the conditions which must be
satisfied before work will be permitted to resume." Dkt. No. 89-3. According to Defendant
Salvatore, the Norwoods were not issued a building permit because they had not paid the
application fees. T. at 235-36. Yet, during the meeting at the Norwoods' house and the
subsequent meeting in Mr. Salvatore's office, he never mentioned that Plaintiffs' failure to receive
a building permit was because they had not paid their application fees. T. at 90.
Lastly, and most importantly in this case, Town Law § 4(a) provides that "[n]o Person
shall commence any work for which a Building Permit is required without first having obtained a
Building Permit from the Code Enforcement Officer." Dkt. No. 89-3 at 5. Further, § 4(e) states
that "[w]ork shall not be commenced until and unless a Building Permit is issued." Id. at 7.
Despite this clear mandate, Defendant Salvatore testified that it was a common practice for him to
allow applicants to begin construction prior to being granted a building permit. T. at 237-38.
Further, the Town Board, which is empowered with statutory authority to create official town
policy, was aware of and complied with Defendant Salvatore's creation of his own means of
handling building permit applications. When questioned about his role in creating these policies,
Defendant Salvatore responded as follows:
Q

It's fair to say that because you stated it was a common
practice to allow people to perform work before the building
permit was issued . . . if it was common, it was part of the
town's policy. Correct?
24

A
Q
A
Q
A
Q
A
Q
A
Q
A
Q
A

Certain circumstances, correct.
Right. That there was leeway?
Yeah.
Even though the town law says you can't do it, right?
Yeah.
And even though the town law doesn't say that and doesn't allow it, that
leeway or discretion lies with you. Correct?
Correct.
***
In fact, you report to the town board every month. You just
said it yourself. Right?
Yes, I do.
You go to those town meetings. Correct?
Correct.
And so the town board is aware of this policy. Correct?
Correct.

T. at 259-60. In light of the numerous examples of Defendant Salvatore's actions that run
contrary to the explicit requirements of the Town Law, coupled with the Town Board's awareness
and acceptance of these actions, the Court finds that Defendant Salvatore is an official
policymaker for the purpose of interpreting and enforcing the local building code procedures. See
Jeffes v. Barnes, 208 F.3d 49, 57 (2d Cir. 2000) (noting that an official can be a policymaker in
one specific area).

Upon the Court's determination that Defendant Salvatore is, as a matter of

law, a policymaker for the Town of Hancock in regards to building code procedures, the next
inquiry is whether his actions were the cause of Plaintiffs' constitutional depravation. See id. It
was clearly established at trial that Defendant Salvatore was the individual who failed to issue
Plaintiffs' building permit despite the Town Law's requirement that such permits shall be issued
by the code enforcement officer for all properly submitted and paid for applications. T. at 78, 8990, 172-73, 180, 184-85; Dkt. No. 89-3 at 7. Accordingly, sufficient evidence was produced at
trial to support the jury's conclusion that Defendants' deprivation of Plaintiffs' constitutional rights
was pursuant to a town policy or custom. Thus, Defendants' Rule 50 renewed motion for
judgment as a matter of law is denied.
25

C.

Rule 59 Motion for New Trial
"The standard for granting a new trial under Rule 59 is less strict than that for judgment as

a matter of law under Rule 50(b), for 'a new trial motion may be granted even if there is
substantial evidence to support the verdict.'" Datskow v. Teledyne Cont'l Motors Aircraft Prods.,
826 F. Supp. 677, 689 (W.D.N.Y. 1993) (quoting Bevevino v. Saydjari, 574 F.2d 676, 683 (2d
Cir. 1978)). However, the district court must "abstain from interfering with the verdict unless it is
quite clear that the jury has reached a seriously erroneous result." Bevenino, 574 F.2d at 684. If a
district court finds that damages are excessive or unsubstantiated, it may offer the plaintiff a
choice of accepting a remittitur of the award or ordering a new trial solely on the issue of
damages. See Lore v. City of Syracuse, 670 F.3d 127, 176-77 (2d Cir. 2012) ("[T]he trial judge
enjoys 'discretion to grant a new trial . . . without qualification, or conditioned on the verdict
winner's refusal to agree to a reduction (remittitur)'") (quoting Gasperini v. Ctr. for Humanities,
Inc., 518 U.S. 415, 433 (1996)).

1. Emotional Distress
Defendants' assert two arguments for why Plaintiffs' emotional distress damages should be
vacated: (1) Plaintiffs' failed to present sufficient corroborating evidence to substantiate emotional
distress damages for each Plaintiff, and (2) that the emotional distress awards were "conscience
shocking" in light of the lack of proof adduced at trial as to each Plaintiff's damages, specifically
focusing on Mr. Norwood's statement that he was not seeking damages for emotional distress.
See Dkt. No. 89-5 at 13-14.

a. Corroborating Testimony
Courts may award emotional distress damages for section 1983 violations. See
26

Patrolmen's Benevolent Ass'n of N.Y. v. City of New York, 310 F.3d 43, 55 (2d Cir. 2002) (citing
Miner v. City of Glenns Falls, 999 F.2d 655, 662 (2d Cir. 1993)). "However, the mere fact that a
constitutional deprivation has occurred does not justify the award of such damages; the plaintiff
must establish that she suffered an actual injury caused by the deprivation." Id. (citing Carey v.
Piphus, 435 U.S. 247, 263-64, 98 S. Ct. 1042, 55 L. Ed. 2d 252 (1978)). To carry this burden, the
plaintiff must submit "competent evidence concerning the injury," Carey, 435 U.S. at 264 n.20,
which must consist of more than the plaintiff's own subjective testimony, see Annis v. Cty. of
Westchester, 136 F.3d 239, 249 (2d Cir. 1988). The additional evidence required to substantiate
emotional distress may include the testimony of other witnesses, see Miner, 999 F.2d at 663, the
objective circumstances of the violation itself, see Waltz v. Town of Smithtown, 46 F.3d 162, 170
(2d Cir. 1995), or the plaintiff's receipt of medical treatment for the emotional injury, see Carreo
v. N.Y.C. Hous. Auth., 890 F.2d 569, 581 (2d Cir. 1989).
Defendants rely on two Second Circuit cases for their assertion that Plaintiffs failed to
substantiate their claims of emotional distress. See Dkt. No. 89-5 at 13; see also Patrolmen's
Benevelont Ass'n, 310 F.3d at 55; Annis, 136 F.3d at 249. Each of these cases held that a
plaintiff's own subjective testimony, standing alone, was "insufficient to sustain an award of
emotional distress damages." Patrolmen's Benevolent Ass'n, 310 F.3d at 55. While Defendants
acknowledge that each Plaintiff corroborated the others' testimony of emotional distress, they
assert that the required corroborating testimony "should be from disinterested third parties, not
from one plaintiff testifying about another plaintiff's emotional distress." Dkt. No. 113 at 8. The
Court is not persuaded that either Patrolmen's Benevolent Ass'n or Annis stand for this
proposition. Rather, as the Southern District explained,
[d]istrict courts in this Circuit interpreting Annis have generally
understood the Second Circuit's holding as not requiring a specific
27

kind of support to justify emotional distress damages; but rather,
have read it narrowly in the context of the Second Circuit's other
precedents to hold that the holding in Annis is based on the
particularly minimal evidence provided by the plaintiff in that case.
Dejesus v. Vill. of Pelham Manor, 282 F. Supp. 2d 162, 177-78 (S.D.N.Y. 2003) (collecting
cases) (citations omitted).
The additional evidence required to substantiate a plaintiff's subjective assertion of their
own emotional distress may include "(1) 'other evidence that such an injury occurred, such as
testimony of witnesses to the plaintiff's distress,' and (2) 'objective circumstances of the violation
itself.'" Id. at 177 (citing Miner, 999 F.2d at 663) (internal citations and quotations omitted).
Further, the corroborating witness' testimony need not be from a disinterested witness. See, e.g.,
Fink v. City of New York, 129 F. Supp. 2d 511, 531-32 (E.D.N.Y. 2001). In Fink, the Eastern
District considered a similar question in a post trial motion seeking to vacate the jury's award of
emotional distress damages. There, the plaintiff testified that the defendants' unconstitutional
actions were the cause of his emotional distress. Id. Specifically, the plaintiff stated that the
defendants' actions "upset" him and caused marital problems with his wife; that he became
"bitter" with his employment; and that he "would be upset, have headaches, [and] get up in the
middle of the night." Id. The plaintiff's assertions were corroborated by his wife's testimony that
"[t]hese episodes of anger and sleeplessness would happen three to four times a week," and that
he "started to experience problems at work [and] became short-tempered." Id. at 532. The court
concluded that the plaintiff's claims of emotional distress were sufficiently corroborated by his
wife's testimony to warrant recovery, but ultimately reduced the award from $300,000 to
$175,000 after concluding that the relatively benign nature of the plaintiff's emotional distress did
not warrant such an excessive award. Id. at 537-38. Thus, emotional distress damages can be
corroborated by any witness, not solely in the form of medical evidence or from disinterested
28

third-parties. See, e.g., Petramale v. Local No. 17 of Laborers' Int'l Union, 847 F.2d 1009, 101112 (2d Cir. 1998) (corroborating testimony from the plaintiff's children); Tanzini v. Marine
Midland Bank, 978 F. Supp 70, 78 (N.D.N.Y. 1997) (corroborating testimony from the plaintiff's
wife); Broome v. Biondi, 17 F. Supp. 2d 211, 223 (S.D.N.Y. 1997) (corroborating testimony from
co-plaintiff spouse). Accordingly, the Court finds that the testimony of Douglas, LeeAnn, and
Devon Norwood, coupled with the objective circumstances surrounding Defendants' failure to
issue Plaintiffs' building permit, sufficiently corroborated each witness' testimony of their own
emotional distress such that Plaintiffs' awards for emotional distress do not fail as a matter of law.

b. Conscience Shocking Damages
Having concluded that emotional damages were properly awarded by the jury, the Court
"may only reduce the award if the amount 'shocks the conscience.'" Patrolmen's Benevelont
Ass'n, 310 F.3d at 56 (citations omitted). Emotional distress damages are "inherently
speculative," with "no objective way to assign any particular dollar value" to such distress.
Turley v. ISG Lackawanna, Inc., 774 F.3d 140, 162 (2d Cir. 2014). The district court's duty is to
ensure that awards for such damages "be fair, reasonable, predictable, and proportionate." Id.
(quoting Payne v. Jones, 711 F.3d 85, 93 (2d Cir. 2013)). For claims of emotional distress,
"'awards within the Second Circuit can generally be grouped into three categories of claims:
"garden-variety," "significant" and "egregious."'" Stevens v. Rite Aid Corp., No. 6:13-CV-783,
2015 WL 5602949, *21 (N.D.N.Y. Sept. 23, 2015) (quotation omitted). "Garden-variety" claims
for emotional distress "arise where the evidence of harm was presented primarily through the
testimony of the plaintiff, who describes his or her distress in vague or conclusory terms and fails
to describe the severity or consequences of the injury." Id. District courts in the Second Circuit
generally approve "garden-variety" damages ranging from $30,000 to $125,000. Id. at *22
29

(collecting cases).
Here, the jury awarded $15,000 in emotional distress damages to each Douglas and
LeeAnn Norwood, and $7,000 to Devon Norwood. See Dkt. No. 79. at 3-4. The Court concludes
that each of these awards is not so excessive as to shock the conscience and, thus, approves the
jury verdict for emotional damages. As an initial matter, the Court notes that Mr. Norwood is not
categorically excluded from receiving emotional distress damages simply because of his answer
to two questions posed on cross examination. Mr. Norwood was first asked if he was "claiming
medical damages" as part of the case, to which he responded that he was not. T. at 102. The next
question was worded very similarly, asking if he was "claiming emotional distress damages" as
part of the case. T. at 102. Mr. Norwood hesitantly responded that he was not. T. at 102. It is
reasonable that both the jury and Mr. Norwood – being lay people who are not well-versed in the
descriptive language used by attorneys to define different types of compensable damages –
interpreted this line of questioning as asking Mr. Norwood if he was seeking specific
reimbursement for any medical procedures, psychological therapy, or counseling treatment that
he underwent as a result of his emotional distress. Since Mr. Norwood testified that he had not
sought any medical treatment for his injuries, this interpretation of his answer is consistent with
the totality of the other testimony in this case. In contrast to Mr. Norwood's hesitant response that
he was not personally seeking emotional distress damages, his own testimony and the testimony
of the other witnesses presented sufficient evidence for the jury to find that he did, in fact, suffer
such emotional injury. See T. at 102. He testified that felt mad and upset when he was first told
by Mr. Salvatore that he would not be able to continue constructing his home. T. at 89. He was
upset about being denied the permit testified that "it sucks" to not be able to complete their home
after spending so much time and money on it. T. at 93, 95. While Mr. Norwood testified that the
30

denial of the building permit did not immediately affect his relationship with his wife, he and
Mrs. Norwood subsequently separated, with Mrs. Norwood and the two youngest children
currently living forty-five minutes away from him. T. at 92, 94.
Mrs. Norwood's testimony, in words and demeanor, set the basis for the emotional toll that
Defendant Salvatore's actions took upon this family. See Fink, 129 F. Supp. 2d at 532 (noting
that a witness' demeanor at trial is a relevant factor in determining emotional distress damages).
She testified that, while there were several stressors in the Norwoods' lives during the relevant
time period of this case, the denial of their building permit after spending essentially all of their
expendable resources on the construction of their new home was the main factor contributing to
their emotional problems. See Petramale v. Local No. 17 of Laborers' Int'l Union, 847 F.2d 1009,
1011-12 (2d Cir. 1998) (noting that a factor in reducing jury award from $200,000 to $100,000
was the uncertainty to which the emotional distress was caused by the unconstitutional
deprivation as opposed to other stressors in the plaintiff's life). Mrs. Norwood testified that the
marital problems with her husband began at about the time their permit was denied, and that he
became distant from her as a result of her own depression. See T. at 137. Thus, Mrs. Norwood's
testimony about the disintegration of their family unit, coupled with Mr. Norwood's testimony
that he was angered and upset by Defendant Salvatore's actions and their son, Devon's testimony
that his father was depressed, sufficiently supported the jury's award of emotional distress
damages for Mr. Norwood.
Mrs. Norwood clearly suffered emotional distress after Defendant Salvatore denied
Plaintiffs' building permit. She became depressed, was prescribed medication for this depression,
which she ultimately overdosed on, and experienced negative repercussions with her quality of
work. T. at 134-37. Her depression was triggered by Mr. Salvatore's actions and the realization
31

that the family would not be able to rebuild their home in the neighborhood where they lived and
raised their children, and that they would have no resources left to buy or build a new home in the
surrounding area. While the family's initial relocation to live with relatives was a result of losing
their home in a fire and not Defendant Salvatore's actions, the subsequent five moves would
undoubtedly not have occurred had the Norwoods been able to complete construction on their
own home. See T. at 63, 91. These emotional injuries were corroborated by Devon's testimony
that his mother became withdrawn, cried, and slept for extended periods of time, multiple times
per week after the building permit was denied. T. at 152. Mrs. Norwood's injuries were further
corroborated by Mr. Norwood, who testified that his wife became upset and started crying when
he told her that they could not complete their home. T. at 90. After this, he stated that Mrs.
Norwood "ended up depressed" and "was hospitalized for taking too many pills at one time." T.
at 91. Mr. Norwood observed that "she didn't want to get up and go to work" and "she would law
in bed [and] cry a lot," which happened three or four times per week. T. at 92.
Devon Norwood's award for emotional distress was established largely by his own
testimony and the objective circumstances of the situation. He was required to observe the
disintigration of his parent's marriage and live separated from his siblings. Further, he testified
that the separation from his siblings has taken a negative emotional toll on him. T. at 152, 154.
The Court recognizes that his distress was not as severe as his parents, with their economic and
marital hardships, and, thus, approves of the proportionately lower award on Devon's behalf.
Accordingly, the Court finds that each Plaintiffs' emotional distress damages were
properly supported by the testimony of numerous witnesses, the demeanor of the witnesses at
trial, and the objective circumstances of Plaintiffs' case. Further, the awards, being at the very
low end of acceptable "garden-variety" emotional distress damages, are not so excessive as to
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shock the conscience, such that no reduction is necessary.

B. Property Value
A plaintiff seeking to recover economic damages "must present evidence that provides the
finder of fact with a reasonable basis upon which to calculate the amount of damages . . . [and]
the jury is not allowed to base its award on speculation or guesswork." Sir Speedy, Inc. v. L & P
Graphics, Inc., 957 F.2d 1033, 1038 (2d Cir. 1992). However, a party need not submit expert
testimony to prove damages and a jury is entitled to rely on the parties' own statements about the
value of the work that they conduct. See Toporoff Eng'rs, P.C. v. Fireman's Fund Ins. Co., 371
F.3d 105, 109 (2d Cir. 2004) (citations omitted). Remittitur of damages is warranted where "the
jury awarded specific amounts of damages that were not supported by the record." Tse v. UBS
Fin. Servs., Inc., 568 F. Supp. 2d 274, 287 (S.D.N.Y. 2008) (citing Trademark Research Corp. v.
Maxwell Online, Inc., 995 F.2d 326, 337 (2d Cir. 1993)).
In this case, the jury awarded $70,000 in compensatory damages for Plaintiffs' loss of their
home and property values. See Dkt. No. 81. To reach this award, the jury was asked in a special
verdict form to identify three independent values: (1) "the fair market value of Plaintiffs' property,
if Plaintiffs had received a building permit from the Town and had constructed their intended
home on the Property"; (2) "the fair market value of the property as vacant land, without a house
on it"; and (3) "the actual amount of construction costs that Plaintiffs would have needed to spend
in order to construct their intended home." Dkt. No. 79 at 2-3. After determining these amounts,
the final award was calculated by subtracting the fair market value of vacant land and the amount
of construction costs from the fair market value of the property after completion of Plaintiffs'
intended home. See Dkt. No. 81.
First, the jury found that the fair market value of Plaintiffs' property had they been able to
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complete their intended home was $175,000. See Dkt. No. 79 at 2-3. There was no evidence
presented at trial to support the finding of this amount. The only testimony regarding the value of
Plaintiffs' completed home was Mr. Norwood's statement that his previous home was covered for
approximately $90,000 in insurance. T. at 63. Mr. Norwood was unable to provide an estimate
of what the value of the property would have been had he completed the construction on the
home. T. at 106. Thus, the Court finds that the jury's valuation of the property with the
completed home is completely unsubstantiated. The only reasonable value of the completed
home presented at trial was the $90,000 insurance value on Plaintiffs' previous home.
Second, the jury found that the fair market value of Plaintiffs' property as vacant land was
$35,000. Dkt. No. 79 at 3. This amount is also entirely unsubstantiated. The only evidence as to
the value of the vacant land was Mr. Norwood's testimony that the property sold for $1,000 after
he abandoned construction on the house. T. at 93. Thus, the only reasonably supported
conclusion that the jury could have reached as to the value of the vacant land was $1,000.
Third, the jury found that Plaintiffs would have needed to expend $70,000 to complete the
intended construction on their house. Dkt. No. 79 at 3. Once again, this amount is
unsubstantiated by the evidence adduced at trial. The only documentation of the estimated cost of
construction of Plaintiffs' home was on their building permit application, which states the cost of
construction at $53,000. Dkt. No. 89-2. Defendant Salvatore testified that he could not estimate
how much money it would have cost Plaintiffs to complete the construction on their home. T. at
241-42. Accordingly, the Court concludes that the only amount supported by the evidence that
the jury could have calculated for the cost of construction is $53,000.
Based upon the evidence discussed above, the Court finds that the jury's award of $70,000
for Plaintiffs' compensatory damages as to their home and property value was entirely
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unsupported. The only reasonable calculation of Plaintiffs' compensatory damages as to their
home and property value should have been $36,000, which is determined by subtracting the fair
market value of the vacant land, $1,000, and the amount of construction costs to complete
Plaintiffs' intended home, $53,000, from the fair market value of the completed home, $90,000.
See Trademark Research Corp., 995 F.2d at 337-38 (noting that specific damage amounts listed
on a special verdict form must be based on evidence presented at trial). Therefore, Defendants'
motion for a new trial on the issue of Plaintiffs' compensatory damages is granted unless
Plaintiffs' file and serve, within ten days from the filing of this Memorandum-Decision and
Order, a written acceptance of remittitur of the award of compensatory damages to $73,000,
which represents the full award for emotional distress damages and the reduced award for
Plaintiffs' home and property values.

IV. CONCLUSION
After carefully reviewing the entire record in this matter, the parties' submissions and the
applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Plaintiffs' motion for attorney's fees (Dkt. No. 92) is GRANTED in part;
and the Court further
ORDERS that Plaintiffs are awarded attorney's fees in the amount of $37,027.50, and the
Court further
ORDERS that Plaintiffs are awarded costs in the amount of $861.85, and the Court
further
ORDERS that Defendants' motion for judgment as a matter of law or, in the alternative,
for a new trial (Dkt. No. 89) is GRANTED in part and DENIED in part; and the Court further
ORDERS that Defendants' motion for judgment as a matter of law pursuant to Federal
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Rule of Civil Procedure 50(b) is DENIED; and the Court further
ORDERS that Defendants' motion for a new trial pursuant to Federal Rule of Civil
Procedure 59 is GRANTED on the issue of Plaintiffs' compensatory damages unless Plaintiffs
file and serve, within 10 days from the filing of this Order, a written acceptance of remittitur of
the award of compensatory damages to $73,000.00; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on all parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: March 15, 2016
Albany, New York

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