Robinson v. Ballard et al

Filing 169

DECISION AND ORDER: ORDERED that Plaintiff's motion for a new trial or to alter or amend the judgment pursuant to Rule 59 of the Federal Rules of Civil Procedure (Dkt. Nos. 140 , 147 ) is DENIED. Signed by Magistrate Judge Therese Wiley Dancks on 9/26/19. {order served via regular mail on plaintiff}(nas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________
RENDELL ROBINSON,
Plaintiff,
9:13-CV-01213
(TWD)

v.
LORENZO A. BALLARD, et al.,
Defendants.
_____________________________________________

APPEARANCES:

OF COUNSEL:

RENDELL ROBINSON
Plaintiff pro se
3001900384
Eric M. Taylor Center (EMTC)
10-10 Hazen Street
East Elmhurst, NY 11370
LETITIA JAMES
Attorney General for the State of New York
Attorneys for Defendants
The Capitol
Albany, NY 12224

AIMEE M. PAQUETTE, ESQ
Assistant Attorney General

THÉRÈSE WILEY DANCKS, United States Magistrate Judge
DECISION and ORDER
I.

INTRODUCTION
Pro se Plaintiff Rendell Robinson commenced this civil rights action under 42 U.S.C. §

1983, asserting several claims arising out of his confinement while he was an inmate-patient in
the Marcy Residential Mental Health Unit at the Marcy Correctional Facility on July 14, 2010.
(Dkt. No. 1.) After initial review, discovery, and dispositive motions, claims remaining for trial

were (1) an Eighth Amendment excessive force claim against Defendants Ballard, Onyan,
Wojtanowski, Holmes, and Cacciotti; (2) an Eighth Amendment failure to intervene claim
regarding the alleged excessive force against Defendant Strassburger; and (3) claims of
supervisory liability against Defendants Hilton, Bellnier, and Harper. (Dkt. Nos. 7, 41, 66.) A
jury trial of these remaining issues began on September 24, 2018, and resulted in a jury verdict in
favor of all Defendants which was returned on September 28, 2018. (Dkt. No. 137.) Following
the trial, the Court filed a judgment in favor of Defendants. (Dkt. No. 138.)
II.

RELEVANT PROCEDURAL HISTORY
Plaintiff initially requested an extension of time to file any post-trial motions and

requested a copy of the trial transcript. (Dkt. No. 139.) Before the Court had a chance to rule on
the request, he filed a preliminary motion for a new trial and asked permission to supplement that
motion. (Dkt. No. 140.) The Court granted Plaintiff’s requests and directed that any
supplemental motion should be filed by December 17, 2018. (Dkt. No. 141.) By letter to
Plaintiff dated November 7, 2018, the court reporter advised Plaintiff of the estimated cost of the
trial transcript with further instructions on how to obtain the transcript. (Dkt. No. 142.)
Thereafter, Plaintiff did not file any request to waive the transcript fee, but he did file a
request to further extend his time to supplement his post-trial motion which was granted. (Dkt.
Nos. 143, 144.) He was directed to file any further supplemental motion by January 17, 2019.
(Dkt. No. 144.) Without any additional requests to extend the time to supplement his motion or
address the issue of the trial transcript, Plaintiff filed a supplemental motion for a new trial with
an oversized supplemental brief. (Dkt. Nos. 147, 147-4.) The supplemental motion and brief
were filed three weeks after the second extended deadline set by the Court had expired. (See
2

Dkt. Nos. 144, 147.) Plaintiff did not provide any reason for the late filing, nor did he request
permission to file an oversized brief. Defendants sought to have the late supplemental motion
and brief stricken (Dkt. No. 145), but the Court denied that request and accepted Plaintiff’s
supplemental motion and brief. (Dkt. No. 148.) The Court then extended Defendants’ time to
respond to Plaintiff’s supplemental motion, and Plaintiff’s time to file a reply. Id. Defendants
timely filed a response in opposition to Plaintiff’s motion (Dkt. No. 149), but Plaintiff did not file
any reply.
Therefore, currently before the Court is Plaintiff’s motion and supplemental motion
(collectively “motion” or “Plaintiff’s motion”) for a new trial pursuant to Federal Rule of Civil
Procedure 59(a) and to alter or amend the judgment pursuant to Rule 59(e), and Defendants’
response in opposition. (Dkt. Nos. 140, 147, 149.) The Court has thoroughly considered all of
the parties’ filings on this motion. For the reasons set forth below, Plaintiff’s motion is denied in
its entirety.
III.

GOVERNING LEGAL STANDARDS
A.

Legal Standard Governing a Motion for a New Trial

Rule 59(a) of the Federal Rules of Civil Procedure provides, in pertinent part, that “[t]he
court may, on motion, grant a new trial on all or some of the issues-and to any party- . . . after a
jury trial, for any reason for which a new trial has heretofore been granted in an action at law in
federal court . . . .” Fed. R. Civ. P. 59(a)(1)(A). The Second Circuit has interpreted this standard
to permit the granting of new trials 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) (internal quotation marks omitted); Lightfoot v.
3

Union Carbide Corp., 110 F.3d 898, 911 (2d Cir. 1997). Examples of such a serious error or a
miscarriage of justice include when “the verdict is against the weight of the evidence,” or when
“for the reasons stated the trial was not fair to the moving party.” Mallis v. Bankers Trust Co.,
717 F.2d 683, 691 (2d Cir. 1983). However, “the court should only grant a motion for a new trial
when the jury’s verdict is ‘egregious.’” DLC Mgmt. Corp., 163 F.3d at 134 (internal quotation
marks omitted); Dunlap-McCuller v. Riese Org., 980 F.2d 153, 158 (2d Cir. 1992), cert. denied,
510 U.S. 908 (1993). “[I]n addressing a Rule 59 motion, the court may ‘independently weigh the
evidence presented at trial to determine whether the jury’s verdict is ‘seriously erroneous’ or
resulted in a ‘miscarriage of justice.’” Edwards v. Schrader-Bridgeport Int’l., Inc., 205 F. Supp.
2d 3, 8 (N.D.N.Y. 2002). “In doing so, the court ‘is afforded considerable discretion.’”
Edwards, 205 F. Supp. 2d at 8.
Additionally, “[i]t is well-settled that Rule 59 is not a vehicle for relitigating old issues,
presenting the case under new theories, securing a rehearing on the merits, or otherwise taking a
second bite at the apple.” Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998) (citations
omitted). “The standard for granting a new trial under Rule 59 is less stringent [as compared to
the standard for judgment as a matter of law under Rule 50], but still relatively high.” Starr
Indem. & Liab. Co. v. Am Claims Mgmt., 131 F. Supp. 3d 185, 188 (S.D.N.Y. 2015), aff’d, 665
Fed. App’x 27 (2d Cir. 2016) (summary order).
B.

Legal Standard Governing a Motion to Alter or Amend a Judgment

Rule 59(e) of the Federal Rules of Civil Procedure does not prescribe any specific
grounds for granting a motion to alter or amend a final judgment. However, in agreeing with
other circuits, the Second Circuit stated “[t]hat district courts may alter or amend judgment to
4

correct a clear error of law or prevent manifest injustice.” Munafo v. Metro. Transp. Auth., 381
F.3d 99, 105 (2d Cir. 2004) (internal quotation marks and citations omitted). A Rule 50(e)
motion “may not be used to relitigate old matters, or to raise arguments or present evidence that
could have been raised prior to the entry of judgment.” Exxon Shipping Co. v. Baker, 554 U.S.
471, 485 n.5 (2008). “When a Rule 59(e) motion addresses a matter already considered by the
court, it is governed by an even more exacting standard. In such an instance, reconsideration is
generally granted only in the event of an intervening change of controlling law, the availability of
new evidence, or the need to correct clear error or prevent manifest injustice. Mere disagreement
with the court’s prior ruling does not constitute a basis for reconsideration of a judgment
entered.” Cargill, Inc. v. Sears Petroleum & Transport Corp., 388 F. Supp. 2d 37, 80-81
(N.D.N.Y. 2005) (citations and internal quotations omitted).
IV.

ANALYSIS
Generally, liberally construed, Plaintiff’s motion for a new trial asserts the following

arguments: (1) the verdict was contrary to the weight of the evidence; (2) the Court erred in
permitting testimony regarding an incident in which Plaintiff threw hot water on a correction
officer and was convicted of a crime as a result; (3) Plaintiff was not allowed to present all
evidence regarding his claims; (4) prejudicial evidence was admitted regarding Plaintiff’s alleged
gang affiliation, a prior incident of Plaintiff taking a correction officer’s baton, and testimony that
the Office of Special Investigations found Plaintiff’s excessive force complaint unsubstantiated;
(5) an incomplete document was admitted into evidence; (6) Defendants’ counsel made improper
closing arguments; and (7) jury instructions were improper. (See generally Dkt. No. 147.)
Defendants oppose each of Plaintiff’s arguments, and further argue that Plaintiff’s
5

supplemental brief exceeds the allowable twenty-five page limit and should be disregarded since
Plaintiff did not obtain prior permission from the Court to exceed the permissible page limit.
(See generally Dkt. No. 149.)
In view of Plaintiff’s pro se status on the motion, and as set forth above, the Court
granted Plaintiff liberal extensions to submit his post-trial motion, and the Court has likewise
accepted and thoroughly considered his oversized brief.
A.

Motion for a New Trial

After carefully considering the matter, the Court denies Plaintiff’s motion based upon
Federal Rule of Civil Procedure 59(a) for a new trial. Initially, the Court notes that for the bulk
of Plaintiff’s arguments, he fails to cite to any transcript or record from the trial to support them.
These “unsupported contentions . . . are insufficient to justify the grant of a new trial.” AMW
Materials Testing, Inc. v. Town of Babylon, No. 01 CV 4245 (ADS) (ETB), 2008 WL 11449231,
at *18 (E.D.N.Y. Mar. 13, 2008). Nevertheless, the Court has considered each of Plaintiff’s
arguments and will address them in the same order as presented by Plaintiff.
1.

Weight of the Evidence

Plaintiff argues there was no evidentiary basis for the jury to find for the Defendants and
that the verdict was against the weight of the evidence. (Dkt. No. 147-4 at 10-201.) Plaintiff
recites his testimony at trial and the testimony of Defendants’ witnesses regarding the details of
the events giving rise to his claims of excessive force. The Court has thoroughly reviewed
Plaintiff’s voluminous arguments and exhibits in this regard and finds that Plaintiff has not come

1

Page references to documents identified by docket number refer to the page
numbers inserted by the Court’s electronic filing system maintained by the Clerk’s office.
6

forward with any evidence to show that the jury reached a seriously erroneous result or that the
verdict was a miscarriage of justice. Manley v. AmBase Corp., 337 F.3d 237, 244 (2d Cir. 2003).
For the most part, Plaintiff argues that his testimony was more credible than the testimony of the
Defendants. (Dkt. No. 147-4 at 11-16.) However, in considering a Rule 59 motion for a new
trial, “the court should only grant such a motion when the jury’s verdict is egregious . . . [and] a
court should rarely disturb a jury’s evaluation of a witness’s credibility.” DLC Mgmt. Corp., 163
F.3d at 134 (citations and internal punctuation omitted). As such, the Court declines to disturb
the jury’s findings on this basis.
2.

Testimony Regarding Hot Water Incident

Plaintiff claims plain error of the Court because there was testimony presented during
trial by Defendant Harper regarding an incident where Plaintiff threw hot water on a correction
officer and was subsequently convicted of a crime as a result. (Dkt. No. 147-4 at 20.) While
Plaintiff is correct that the Court ruled in a motion in limine that only the number of felony
convictions and the fact that Plaintiff was sentenced to more than one year were admissible (Dkt.
No. 131), the testimony at issue was actually elicited by Plaintiff on cross-examination of
Defendant Harper. (Dkt. No. 149-4 at 11.) Plaintiff does not provide any evidence that he
objected to this testimony or moved to strike it during trial. Koch v. Greenberg, 14 F. Supp. 3d
247, 267 (S.D.N.Y. 2014), aff’d, 626 F. App’x 335 (2d Cir. 2015) (claimed improper character
evidence admitted at trial not error where opposing counsel elicited the testimony on crossexamination and then did not move to strike it). Further, Plaintiff has not shown that the
testimony swayed the jury in such a way as to affect the outcome of the case. The Court,
therefore, finds a new trial is not warranted on this basis.
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3.

Presentation of All Evidence

Plaintiff next argues that a new trial should be ordered because his deposition transcript,
his affidavit submitted to the Court in opposition to Defendants’ summary judgment motion, and
his treatment records from the Office of Mental Health should have been entered into evidence at
trial. (Dkt. No. 147-4 at 22-28.) He claims this testimony, affidavit, and records should have
been admitted “as trial evidence to support [his] case” and “as proof to the quality of evidence”
(id. at 26), and to “support [his] trial testimony.” (Id. at 27.) However, this evidence was never
offered at trial. Additionally, Plaintiff testified in person at trial regarding his claims and the
events leading up to them, and his attorneys cross-examined all of Defendants’ witnesses.
Plaintiff essentially seeks to relitigate his claims, but as noted above, “[i]t is well-settled that
Rule 59 is not a vehicle for relitigating old issues, presenting the case under new theories,
securing a rehearing on the merits, or otherwise taking a second bite at the apple.” Sequa Corp.,
156 F.3d at 144 (citations omitted). Accordingly, this argument fails.
4.

Prejudicial Evidence

Plaintiff claims a new trial should be conducted because prejudicial evidence was
admitted pertaining to (1) his alleged gang affiliation; (2) another incident where Plaintiff took an
officer’s baton; and (3) information that the Office of Special Investigations found Plaintiff’s
excessive force claim unsubstantiated. (Dkt. No. 147-4 at 28-30.) Plaintiff does not argue that
this evidence was objected to at trial, or that he requested any limiting or curative instructions.
See id. For these reasons alone, Plaintiff’s argument fails.
Additionally, Rule 61 provides “unless justice requires otherwise, no error in admitting or
excluding evidence . . . is ground for granting a new trial.” Fed. R. Civ. P. 61. Courts “must
8

disregard all errors and defects that do not affect any party’s substantial rights.” Id. Whether an
evidentiary error implicates a substantial right depends on “the likelihood that the error affected
the outcome of the case.” Malek v. Fed. Ins. Co., 994 F.2d 49, 55 (2d Cir. 1993). Here, Plaintiff
has not shown that the jury’s decision was influenced by the evidence at issue. Further, there was
significant testimony, video evidence, and documentary evidence to support the jury’s verdict.
Therefore, a new trial is not warranted on these grounds.
5.

Incomplete Document

Next, Plaintiff claims that defense counsel destroyed or significantly altered evidence and
a spoliation instruction was therefore warranted. (Dkt. No. 147-4 at 30-32.) Specifically,
Plaintiff asserts a document admitted into evidence was missing a page. (Id. at 31; Dkt. No. 14712 at 2-7.) However, the complete document was admitted into evidence as Trial Joint Exhibit
14. (Dkt. No. 149-2 at 1-12.) As such, no new trial is warranted under these circumstances since
the entire document was before the jury.
6.

Improper Closing Statements of Defendants’ Counsel

Plaintiff claims defense counsel’s closing statement “was undignified and intemperate,
containing improper instructions and assertions calculated to mislead the jury . . . .” (Dkt. No.
147-4 at 32.) Plaintiff does not assert that he objected during the summation. Under these
circumstances, a new trial is warranted only where counsel’s conduct prejudices the opposing
party or unfairly influences a jury’s determination. Tesser v. Bd. of Educ. of Sch. Dist., 370 F.3d
314, 321 (2d Cir. 2004). “The relevant inquiry in assessing undue prejudice is whether there is a
reasonable probability that the jury’s verdict was influenced by the improper conduct of counsel.”
Claudio v. Mattituck-Cutchogue Union Free Sch. Dist., 955 F. Supp. 2d 118, 156 (E.D.N.Y.
9

2013) (citations and quotation marks omitted). “Moreover, when the complaining party fails to
object at trial to statements made during summation, the court will only grant a new trial when
the error is so serious and flagrant that it goes to the very integrity of the trial.” Id. (citations and
quotation marks omitted).
Plaintiff argues that defense counsel mislead the jury regarding his alleged lack of
injuries. (Dkt. No. 147-4 at 33.) Since Plaintiff’s relevant medical records generated after the
claimed excessive force at issue were admitted into evidence as Joint Exhibit 12, the Court finds
any error in this regard is not serious or flagrant. (See Dkt. No. 135 at 2.)
Plaintiff also argues defense counsel improperly referred to Plaintiff “yelling to his ‘gang
brothers.’” (Dkt. No. 147-4 at 33.) Video evidence of a gang related comment made by Plaintiff,
as interpreted by a Defendant, was introduced at trial without any objection by Plaintiff (Dkt. No.
149-4 at 21; see also Dkt. No. 135 at 1 (referencing video as Joint Exhibit 1)), and no objection
was made during the summation. Under these circumstances as noted above, the Court is
required to find “flagrant abuse” before granting a new trial. Claudio, 955 F. Supp. 2d at 156.
Given that evidence regarding a gang related comment was introduced during the trial, without
objection, the Court concludes there are no grounds for a new trial based upon such statements of
defense counsel in Defendants’ summation.
7.

Jury Instructions

Plaintiff argues the Court’s jury instructions in response to two requests from the jury
during their deliberations were misleading. (Dkt. No. 147-4 at 34.) The jury requested
“clarification of excessive force guidelines” and “what happens if we can’t be agreeable on
verdict?” (Dkt. No. 134.) In advance of calling the jury back into the Courtroom, the Court
10

conferred with counsel for the parties. The jurors had a written copy of the jury instructions,
therefore the Court referred the jurors to that part of the jury instructions that defined excessive
force, and gave an Allen charge in response to the second request. (Dkt. No. 149-3 at 13-15;
Text Minute Entry 9/28/2019.) Neither Plaintiff nor Defendants objected at that time, or at the
time of the original jury charge conference, or before or after the instructions were delivered to
the jury on the record in advance of any deliberations.
To the extent any such motion for a new trial is premised on an objection to a jury
instruction, Federal Rule of Civil Procedure 51 requires the movant to have raised that objection
before the jury retires, in order to preserve the objection. See Brenner v. World Boxing Council,
675 F.2d 445, 456 (2d Cir. 1982), cert. denied, 459 U.S. 835 (1982). Rule 51 provides, in
pertinent part, that “[a] court may consider a plain error in the instructions that has not been
preserved as required by Rule 51(d)(1) if the error affects substantial rights.” Fed. R. Civ. P.
51(c) and (d). As such, “to establish plain error, [the movant] must show there was (1) error (2)
that is plain and (3) that affects substantial rights.” U.S. v. Cossey, 632 F.3d 82, 86-87 (2d Cir.
2011) (citations omitted). The error should be corrected only if it “seriously affects the fairness,
integrity, or public reputation of the judicial proceedings.” Id. at 87 (citations and punctuation
omitted). “The plain error doctrine should only be invoked with extreme caution in the civil
context.” Feeley v. City of New York, 362 F. Supp. 3d 153, 160 (S.D.N.Y. 2019) (citation and
quotation marks omitted). “To constitute plain error, a court’s action must contravene an
established rule of law and the substantial right affected must go to the very essence of the case.”
Id. (citations and internal punctuation omitted).
Here, there is no such error. Plaintiff argues the Court only gave the jurors “law in favor
11

of the defendant[]s and [did] not give the law to the jurors on plaintiff’s behalf as to what
excessive force is.” (Dkt. No. 147-4 at 35.) Plaintiff does not provide any argument on what
part of the instruction on excessive force specifically favored Defendants or what was lacking as
to Plaintiff. Id. A fair reading of the instructions on excessive force (Dkt. No. 149-3 at 13-15)
and in a reading of the instructions in their entirety, fails to establish that any alleged error was
prejudicial. A jury instruction is erroneous, and a new trial warranted, only if it misleads a jury
as to the correct legal standard or does not adequately inform the jury on the law. Anderson v.
Branen, 17 F.3d 552, 556 (2d Cir. 1994). Plaintiff speculates that the jury “[d]idn’t understand
the readable jury instructions and really didn’t know what to do and didn’t know that prison
officials violate inmate constitutional rights.” (Dkt. No. 147-4 at 35.) However, the Plaintiff has
not shown the jury instructions were legally incorrect, led to any jury confusion, or caused any
prejudice. Therefore, Plaintiff has failed to show the instructions resulted in a seriously
erroneous result or a miscarriage of justice requiring a new trial. Nimely v. City of New York,
414 F.3d 381, 392 (2d Cir. 2005) (citations omitted).
After conferring with counsel, the Court read the Allen charge in response to the jury’s
question “what happens if we can’t be agreeable on verdict?” (See Dkt. No. 134.) “The term
‘Allen charge’ is a generic term used for a type of supplemental instruction that is given to a
deadlocked jury, first approved by the Supreme Court in Allen v. United States . . . [which]
reminds the jurors of the importance of obtaining a verdict and encourages jurors to listen ‘to
each other’s arguments’ while also emphasizing that ‘the verdict must be the verdict of each
individual juror, and not a mere acquiescence in the conclusion of his fellows.’” Smalls v.
Batista, 191 F.3d 272, 275 n.1 (2d Cir. 1999). Plaintiff does not specifically provide what part of
12

the charge he finds objectionable other than to assert the Court “rushed the jury to make an
improper verdict.” (Dkt. No. 147-4 at 36.). “[T]here is nothing improper with instructions that
encourage a deadlocked jury to reach a verdict, as long as jurors are not encouraged to abandon,
without any principled reason, doubts that any juror conscientiously holds . . . .” Baker v.
Kirkpatrick, 768 F. Supp. 2d 493, 507 (W.D.N.Y. 2011) (citations and punctuation omitted).
Plaintiff has not submitted any evidence that the Court rushed the jurors or made any other
comments to infer they should acquiesce to other jurors to reach a verdict. Accordingly, the
Court finds no error here warranting a new trial.
B.

Motion to Alter or Amend the Judgment

Plaintiff has not made any argument that the jury verdict was clear error of law or that it
is necessary to alter or amend it to prevent manifest injustice. (See generally Dkt. No. 147-4.)
Additionally, Plaintiff does not assert that new evidence is available or that there has been an
intervening change in controlling law. Id. Plaintiff clearly disagrees with the jury’s verdict, and
apparently wants to relitigate the issues that have been decided by the jury. Under these
circumstances, there is no basis to reconsider the judgment entered in accordance with the jury’s
verdict.
The Court has considered all of Plaintiff’s arguments and finds no legally sufficient
reason to disturb the jury’s verdict.
WHEREFORE, it is hereby
ORDERED that Plaintiff’s motion for a new trial or to alter or amend the judgment
pursuant to Rule 59 of the Federal Rules of Civil Procedure (Dkt. Nos. 140, 147) is DENIED;
and it is further
13

ORDERED that the Clerk provide Plaintiff with a copy of this Decision and Order, along
with copy of the unpublished decision cited herein in accordance with the Second Circuit
decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).

Dated: September 26, 2019
Syracuse, New York

14

AMW Materials Testing, Inc. v. Town of Babylon, Slip Copy (2008)
2008 WL 11449231

2008 WL 11449231
Only the Westlaw citation
is currently available.
United States District
Court, E.D. New York.
AMW MATERIALS TESTING, INC.
and Anthony Antoniou, Plaintiffs,
v.
TOWN OF BABYLON, and
the North Amityville Fire
Company, Inc., Defendants.
01 CV 4245 (ADS) (ETB)
|
Signed 03/13/2008
Attorneys and Law Firms
LUSTBERG & FERRETTI, 5 Garrison Road,
Glens Falls, NY 12801, By: Robert M.
Lustberg, Esq., Joan M. Ferretti, Esq., Of
Counsel, Attorneys for the Plaintiffs.
TADDEO & SHAHAN, LLP, 472 S. Salina
Street, Suite 700, Syracuse, NY 13202, By:
Steven C. Shahan, Esq, Of Counsel, Attorneys
for the Defendants.
LOWENSTEIN, SANDLER, KOHL, FISHER
& BOYLAN, 65 Livingston Avenue, Roseland,
NJ 07068-1791, By: Richard Ricci, Esq., Of
Counsel, Attorneys for the Defendants.

MEMORANDUM OF
DECISION AND ORDER
Arthur D. Spatt, United States District Judge

*1 This case arises out of a fire at an
industrial facility on October 9, 2000, that
resulted in the release or threatened release
of hazardous substances into the environment.
The North Amityville Fire Company, Inc.
(“Fire Company” or “NAFC”) and the
Town of Babylon (“Town”) (collectively, the
“Defendants”), responded to the fire. The
owner, Anthony Antoniou and the business
located at the facility, AMW Materials Testing,
Inc. (“AMW”) (collectively, the “Plaintiffs”),
claim that the Defendants are liable under: (1)
the Comprehensive Environmental Response,
Compensation and Liability Act (CERCLA),
42 U.S.C. § 9607 (2004); (2) the New York
Navigation Law; and (3) for common law
negligence.
Following a trial in September and October
2006, the jury was unable to reach a verdict.
The case was re-tried in February and March
2007 and the jury rendered a verdict in favor
of the Defendants. Presently before the Court
are the Plaintiffs' motions for: (1) judgment as a
matter of law pursuant to Rule 50 of the Federal
Rules of Civil Procedure (“Fed. R. Civ. P.”); (2)
judgment under CERCLA pursuant to Fed. R.
Civ. P. 52; and (3) a new trial pursuant to Fed.
R. Civ. P. 59.

I. BACKGROUND
A. Factual Background
Although the Court will not relate the entire
factual background of this case in the present
Order, the relevant facts are set forth in this
Court’s Memoranda of Decision and Order
dated December 20, 2004, AMW v. Town of
Babylon, 348 F.Supp.2d 4 (E.D.N.Y. 2004)

© 2019 Thomson Reuters. No claim to original U.S. Government Works.

1

AMW Materials Testing, Inc. v. Town of Babylon, Slip Copy (2008)
2008 WL 11449231

and December 26, 2006, AMW v. Town of
Babylon, No. 01-cv-4245, and the Second
Circuit’s Order dated March 28, 2006, AMW
v. Town of Babylon, 187 Fed.Appx. 24 (2d Cir.
2006). Familiarity with those decisions, as well
as the trial transcript, is assumed.

CERCLA. Id. at 27-28. The Second Circuit
further determined that whether and to what
extent the Plaintiffs incurred response costs
voluntarily, was also a factual issue. Id. at
25-28. The Second Circuit held that the
CERCLA issues should be “appropriately
addressed by the trier of fact.” Id. at 27.

B. Procedural Background
On June 22, 2001, the Plaintiffs commenced
this action seeking to hold the Defendants
liable for damages that resulted from a fire
at the Plaintiffs' facility. Some of the losses
include the cost of environmental remediation
that the Plaintiffs undertook by reason of
the apparent escape of hazardous and toxic
materials from the AMW facility during the
fire. The Plaintiffs also seek damages for
lost profits and punitive damages. In their
complaint, the Plaintiffs assert causes of action
under Sections 107 and 113 of CERCLA,
strict liability for ultrahazardous activity, joint
and several liability under the New York
Navigation Law and common law negligence.

*2 The Second Circuit further determined that
factual issues exist regarding the Plaintiff’s
negligence claims that, additionally, should be
addressed at trial. Id. at 27-28. Finally, the
Second Circuit determined that the Plaintiff’s
Navigation Law claims were improperly
dismissed on summary judgment because the
issue of the Defendants' lack of culpability
should not have been decided as a matter of
law. Id. at 28. The Second Circuit specifically
noted that it remanded the case for trial on the
Navigation Law cause of action and “whether
or not the Plaintiffs can state a CERCLA
claim.” Id. at 28.

On December 20, 2004, this Court granted
the Defendants' motion for summary judgment
and dismissed the complaint in its entirety.
On March 28, 2006, the Second Circuit
affirmed this Court’s dismissal of the Plaintiffs'
CERCLA Section 113(f)(1) claim. However,
the Second Circuit vacated the dismissal of
the Plaintiffs' remaining claims. AMW, 187
Fed.Appx. 24.
Specifically, the Second Circuit found that
resolution of the Plaintiffs' CERCLA Section
107(a) claim would necessarily involve the
determination of disputed issues of fact,
including, whether the Defendants were
“operators” of the facility pursuant to

From September 12, 2006 through October 11,
2006, this Court held a jury trial of the issues
in this case. On October 10, 2006, the jury
informed the Court that it was unable to reach a
unanimous verdict on the Plaintiffs' CERCLA
claims, but had reached a unanimous verdict on
the remaining Navigation Law and negligence
claims. In Court, on this partial verdict, the jury
returned a verdict in favor of the Defendants
on the Navigation Law and negligence claims.
However, when the jury was polled, one juror
did not agree to the verdict. As a result, the
Court instructed the jury to return to the jury
deliberation room and begin deliberations from
the beginning.

© 2019 Thomson Reuters. No claim to original U.S. Government Works.

2

AMW Materials Testing, Inc. v. Town of Babylon, Slip Copy (2008)
2008 WL 11449231

On October 11, 2006, the jury informed the
Court that it was unable to reach a unanimous
verdict on any of the three causes of action.
The Court then accepted the disagreement and
excused the jurors.

question 4 of the verdict sheet, namely, whether
NAFC was an operator. The Plaintiffs assert
that the Court must now find that NAFC was
an operator and therefore strictly liable under
CERCLA.

The Defendants moved for judgment as a
matter of law pursuant to Fed. R. Civ. P. 50(b).
The Plaintiffs opposed the Defendants' motion,
and additionally, cross-moved for judgment as
a matter of law. On December 26, 2006, the
Court denied the motions for judgment as a
matter of law and ordered the parties to appear
for jury selection for re-trial of the case.

The Plaintiffs further contend that the record,
and specifically, the testimony of Chiefs Tutt,
Gooch, and Clayton, Fire Marshall Arcuri,
and Stephen Bopp, demonstrates that NAFC
exercised complete control over AMW. As
a result, they contend that NAFC is an
operator and strictly liable. The Court notes that
although the Plaintiffs generally name various
witnesses, they fail to cite any portions of the
trial transcript or any specific trial testimony in
support of their contentions.

On February 26, 2007, the jury was selected
and on February 28, 2007, the trial commenced.
On March 28, 2007, the jury reached a
unanimous verdict in favor of both Defendants
on all causes of action.
C. The Plaintiffs' Contentions
On May 3, 2007, the Plaintiffs moved for: (1)
judgment as a matter of law pursuant to Fed.
R. Civ. P. 50; (2) judgment under the CERCLA
statute in favor of the Plaintiffs pursuant to Fed.
R. Civ. P. 52; and (3) a new trial pursuant to
Fed. R. Civ. P. 59. The Plaintiffs contend that,
as to the Plaintiffs' CERCLA claims, the Court
determined that it would treat the jury verdict
as an advisory verdict. The Plaintiffs contend
that the jury found that the NAFC failed to
prove that it was responding to an emergency
caused by the release or threatened release of
hazardous materials, as evidenced by the jury’s
response to question 1 on the verdict sheet. The
Plaintiffs contend that, as a result, NAFC is
strictly liable under 42 U.S.C. § 9607(a) upon
a finding that it was an operator. However, the
Plaintiffs contend that the jury never reached

*3 The Plaintiffs also contend that judgment
should be entered against the Town pursuant
to Rules 50 or 52. Without citing to any
pages of the trial transcript, the Plaintiffs claim
that Fire Marshall Arcuri testified that he was
not responding to an emergency caused by
the release or threatened release of hazardous
materials. They further contend that he testified
that he did not know of the presence of
hazardous materials at the facility.
In addition, the Plaintiffs contend that they
are entitled to a new trial because during
his summation, Steven C. Shahan, counsel
for the Defendants, utilized three documents
which were not in evidence regarding whether
petroleum had been released. Although the
Plaintiffs admit that the Court gave the jury
a curative charge in regard to this issue,
they contend that the curative charge actually
exacerbated the prejudice to the Plaintiffs by
emphasizing that the Defendants' error was

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inadvertent and blaming the Plaintiffs for the
mistake.
Finally, with regard to the negligence causes
of action, the Plaintiffs contend that they had
a special relationship with the Defendants and
the special relationship existed as a matter of
law. The Plaintiffs further contend that the
Court erroneously instructed the jury regarding
the Cuffy test, despite the fact that the test
was not mentioned by the Second Circuit in its
Decision in this case. In addition, the Plaintiffs
contend that the jury in the prior trial of this
case, would have found the Defendants grossly
negligent.
On the final page of the Plaintiffs' submission,
they contend that they are entitled to a
new trial as a result of misleading questions
by the Defendants during trial regarding
a determination made by the New York
Department of Environmental Conservation
(“DEC”), as well as a misleading opening
statement by the Defendants' counsel, Mr.
Shahan, regarding the DEC’s determination.
The Plaintiffs again fail to cite any portion
of the trial transcript or provide the Court
with information sufficient to locate the alleged
improper statements. In fact, the Plaintiffs fail
to even provide the Court with the alleged
improper questions or the alleged improper
opening statements.
D. The Defendants' Contentions
The Defendants agree that, with regard to the
CERCLA causes of action, because the jury
verdict is advisory, the Court must make its own
independent findings of fact and conclusions
of law. They contend that the Defendants were
responding to an emergency created by the

release of hazardous chemicals and did not
act grossly negligent. They contend that the
Plaintiffs failed to establish that the Defendants
were operators of the AMW facility. In support
of their contentions, the Defendants cite to
numerous pages from the trial transcript.
The Defendants assert that the firefighters were
only inside the AMW facility for a short
time and at no time were they able to direct
or manage what was happening to hazardous
materials inside the building. The Defendants
further claim that hazardous substances were
being released prior to the payloader moving
debris. The Defendants also assert that they
were responding to an emergency created by
the release or threatened release of hazardous
substances. They contend that they are not
liable as operators of the facility. As such, they
contend that they are immune from liability
because they did not act grossly negligent.
The Defendants note that if they are found
liable, they are entitled to contribution from the
Plaintiffs.
*4 The Defendants further argue that the
Plaintiffs are not entitled to a new trial on
the New York Navigation Law claims. The
Defendants note that the Plaintiffs contend that
defense counsel, during summation, referred
to hazardous waste manifests showing the
recovery of three 55 gallon drums of waste
oil, believing that they were a part of
Plaintiffs' exhibit 45. However, they were
not admitted in evidence. The Defendants
note that Plaintiffs did not object during the
Defendants' summation and the Court gave the
jury a curative instruction to disregard those
documents and the arguments based on them.
The Defendants contend that now, for the first

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time, the Plaintiffs contend that the curative
instruction was insufficient.

Morrison, 412 F.3d 39, 48 (2d Cir. 2005); This
Is Me, 157 F.3d at 142.

Finally, the Defendants contend that the Court
properly instructed the jury regarding the New
York negligence causes of action and there was
sufficient evidence for the jury to have found
that no special relationship existed between the
parties.

Stated somewhat differently, we are “required
to ‘consider the evidence in the light most
favorable to the party against whom the motion
was made and to give that party the benefit
of all reasonable inferences that the jury might
have drawn in his favor from the evidence.’ ”
Tolbert v. Queens Coll., 242 F.3d 58, 70 (2d
Cir. 2001) (quoting Smith v. Lightning Bolt
Prods., Inc., 861 F.2d 363, 367 (2d Cir. 1988)
). A court evaluating such a motion “cannot
assess the weight of conflicting evidence, pass
on the credibility of the witnesses, or substitute
its judgment for that of the jury.” Id. at 70
(quoting Smith, 861 F.2d at 367); Black v.
Finantra Capital, Inc., 418 F.3d 203, 209 (2d
Cir. 2005).

II. DISCUSSION
A. The Standards of Review
1. As To A Rule 50 Motion for Judgment
As A Matter of Law
“[T]he same standard that applies to a pretrial motion for summary judgment pursuant
to Fed. R. Civ. P. 56 also applies to motions
for judgment as a matter of law during or after
trial pursuant to Rule 50.” This Is Me v. Taylor,
157 F.3d 139, 142 (2d Cir. 1998) (citing Piesco
v. Koch, 12 F.3d 332, 341 (2d Cir. 1993) ).
A district court may not grant judgment as a
matter of law unless “the evidence is such,
that without weighing the credibility of the
witnesses or otherwise considering the weight
of the evidence, there can be but one conclusion
as to the verdict that reasonable [persons] could
have reached.” Cruz v. Local Union No. 3 of the
IBEW, 34 F.3d 1148, 1154-55 (2d Cir. 1994)
(quoting Simblest v. Maynard, 427 F.2d 1, 4
(2d Cir. 1970) ). Weakness of the evidence
does not justify judgment as a matter of law;
as in the case of a grant of summary judgment,
the evidence must be such that a reasonable
juror would have been compelled to accept the
view of the moving party. See Fairbrother v.

Finally, the Court is mindful that motions
pursuant to Rule 50 “should be cautiously
and sparingly granted.” 9 CHARLES ALAN
WRIGHT AND ARTHUR R. MILLER,
FEDERAL PRACTICE AND PROCEDURE
§ 2524 (2d ed. 1994). “[W]e may reverse the
district court only if there is such a complete
absence of evidence supporting the verdict that
the jury’s findings could only have been the
result of sheer surmise and conjecture, or [there
is] such an overwhelming amount of evidence
in favor of the movant that reasonable and fair
minded [jurors] could not arrive at a verdict
against [him].” Nimely v. City of New York,
414 F.3d 381, 390 (2d Cir. 2005).
2. As To A Rule 59 Motion For A New
Trial
As an alternative to their request for judgment
as a matter of law, the Plaintiffs also request a

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new trial. “A motion for a new trial ordinarily
should not be granted unless the trial Court
is convinced that the jury has reached a
seriously erroneous result or that the verdict is
a miscarriage of justice.” Tesser v. Board of
Education, 370 F.3d 314, 320 (2d Cir. 2004);
see also Armstrong v. Brookdale University
Hospital, 425 F.3d 126, 133 (2d Cir. 2005).
*5 In contrast to a motion for judgment
as a matter of law, a motion for a new
trial pursuant to Rule 59 may be granted
by the District Court, even though there is
evidence to support the jury’s verdict, so long
as the District Court determines that, in its
independent judgment, “the jury has reached a
seriously or erroneous result or (its) verdict is a
miscarriage of justice”. Munafo v. Metropolitan
Transportation Authority, 381 F.3d 99, 105 (2d
Cir. 2004); see also Nimely v. City of New
York, 414 F.3d at 392; Manley v. Ambase
Corp., 337 F.3d 237, 244-45 (2d Cir. 2003).
Also, the trial judge is free to weigh the
evidence herself and need not view it in the
light most favorable to the winner. Manley, 337
F.3d at 244-45.
3. As To Rule 52
“Rule 52(a) provides, in pertinent part, that
‘in all actions tried upon the facts without a
jury or with an advisory jury, the court shall
find the facts specially and state separately
its conclusions of law thereon.’ ” Mazzeo v.
Lenhart (In re Mazzeo), 167 F.3d 139, 142
(2d Cir. 1999) (citing Fed. R. Civ. P. 52(a) ).
See also Felker v. Pepsi-Cola Co., 899 F.Supp.
882, 888 (D. Conn. 1995) (“Fed. R. Civ. P.
52 requires the Court, although sitting with
an advisory jury, to make its own findings of
fact and conclusions of law”). “A principal

purpose of the requirement for specific factual
findings is to inform the appellate court of the
basis of the decision and to permit effective
appellate review.” In re Mazzeo, 167 F.3d at
142. “The findings of fact and conclusions of
law ... need not include punctilious detail [ ]or
slavish tracing of the claims issue by issue
and witness by witness.” Id. (internal citations
omitted). “Indeed it has been held in this Circuit
that Rule 52(a) requires the Court to make its
findings independent from the jury’s ... On the
other hand, it would be purposeless to have
an advisory jury unless some deference was
shown to its opinions. Moreover, decisions in
this Circuit have indicated a preference for a
jury’s verdict over the findings of a District
Judge.” Felker, 899 F.Supp. at 888-89.
In this case, the Court allowed the CERCLA
issues to be decided in the first instance by
the jury as an advisory verdict. See Fed. R.
Civ. P. 39(c) (“In all actions not triable of right
by a jury the court upon motion or of its own
initiative may try any issue with an advisory
jury”). See, e.g. Harris v. Niagara Mohawk
Power Corp., 252 F.3d 592, 595-96 (2d Cir.
2001) (“Although the parties had agreed that
the determination of damages would be made
by the trial judge following a jury trial on
liability, the jury was asked to give an advisory
verdict with respect to damages”). Although an
advisory verdict is not binding on the trial court,
its purpose is “to enlighten the conscience of
the Court.” Skolberg v. Villani, 601 F.Supp.
981, 982 (S.D.N.Y. 1985). However, it is
wholly within the discretion of the trial court
whether to accept or reject in whole or
in part the verdict of the advisory jury. 9
CHARLES ALAN WRIGHT AND ARTHUR

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R. MILLER, FEDERAL PRACTICE AND
PROCEDURE § 2335 (2d ed. 1995).
With these standards in mind, the Court will
review the claims in the present case.
B. As To CERCLA
The Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA),
also known as the Superfund Law, regulates
the release of hazardous substances and the
cleanup of sites where hazardous substances
have come to be located. 42 U.S.C. §§ 9601–75
(2004). CERCLA permits private parties to
“pursue contribution or indemnification from
potentially responsible parties for expenses
incurred responding to environmental threats.”
Commander Oil Corp. v. Barlo Equip. Corp.,
215 F.3d 321, 326 (2d Cir. 2000) (citation
omitted); 42 U.S.C. § 9607(a)(4)(B). An
“innocent” party may seek indemnification for
full recovery of costs under § 9607(a)(4)(B).
Bedford Affiliates v. Sills, 156 F.3d 416, 424
(2d Cir. 1998).
*6 A party is potentially responsible under
CERCLA for costs associated with a toxic spill
at a site, if: (1) the site is a “facility;” (2) a
release or threatened release of a “hazardous
substance” from the site has occurred; (3) the
release or threatened release has caused the
plaintiff to incur response costs; and (4) the
defendant falls within at least one of the four
classes of responsible persons described in §
9607(a) of CERCLA. 42 U.S.C. § 9607(a); U.S.
v. Alcan Aluminum Corp., 315 F.3d 179, 18
(2d Cir. 2003). The four classes of responsible
parties are (1) the current owner and operator
of the facility; (2) the owner or operator of
the facility at the time hazardous substances

were disposed; (3) any person who generated
or arranged for the treatment or disposal of
a hazardous substance at the facility; and
(4) any person who transported hazardous
substances to the facility. 42 U.S.C. § 9607(a)
(1)–(4); see also Commander, 215 F.3d at 326;
B.F. Goodrich Co. v. Murtha, 958 F.2d 1192,
1198 (2d Cir. 1992). Potentially responsible
persons are held strictly liable for cleanup costs
incurred by any other person. B.F. Goodrich v.
Betkoski, 99 F.3d 505, 514 (2d Cir. 1996); New
York v. Shore Realty Corp., 759 F.2d 1032,
1042 (2d Cir. 1985).
It is well-settled that both current operators of a
facility and operators at the time of release are
responsible parties regardless of who caused
the release of hazardous substances. New
York v. Nat'l Servs. Indus. Inc., 352 F.3d
682, 684 (2d Cir. 2003); Shore Realty, 759
F.2d at 1044. The term “operator” in the
case of a facility means: “any person who ...
operated, or otherwise controlled activities
at such facility immediately beforehand.” 42
U.S.C. § 9601(20)(A). Under CERCLA, “any
person who operates a polluting facility is
directly liable for the costs of cleaning up
the pollution.” U.S. v. Bestfoods, 524 U.S.
51, 65, 118 S.Ct. 1876, 1886, 141 L.Ed.2d
43 (1998). “This is so regardless of whether
that person is the facility’s owner, the owner’s
parent corporation or business partner, or even
a saboteur who sneaks into the facility at night
to discharge its poisons out of malice.” Id.
(citation omitted).
For purposes of CERCLA, the Supreme Court
has held that “an operator must manage, direct,
or conduct operations specifically related to
pollution, that is, operations having to do

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with the leakage or disposal of hazardous
waste, or decisions about compliance with
environmental regulations.” Id. In its decision
in the present case, the Second Circuit
specifically noted that, “[a]ccording to this
case law, an ‘operator is simply someone who
directs the workings of, manages, or conducts
the affairs of a facility.’ BestFoods, 524 U.S. at
66, 118 S.Ct. 1876. This has been interpreted
broadly. As stated above, a person may be an
‘operator’ ‘regardless of whether that person
is ... even a saboteur who sneaks into the
facility at night to discharge its poisons out of
malice.’ Id. at 65, 118 S.Ct. 1876.” AMW, 187
Fed.Appx. 24.
The actions of a Government entity at a site
may give rise to operator liability. “CERCLA
expressly includes municipalities, states, and
other political subdivisions within its definition
of persons who can incur such liability under
§ 9607.” Murtha, 958 F.2d at 1198. State
and local governments are held to the strict
liability standard in the same manner as any
other potentially responsible party. However,
relevant to this case, if the Government has
acquired ownership or control of the facility
involuntarily, as a result of its sovereign
function, or the entity was responding to
an emergency caused by the release of
hazardous substances from a facility owned by
another party, the State or local government
is only liable for gross negligence or willful
misconduct. 42 U.S.C. § 9607(d)(2); see
Murtha, 958 F.2d at 1198.
1. As To the Advisory Verdict
On March 28, 2007, the jury reached a
unanimous verdict in favor of the Defendants
on all causes of action, including the Plaintiffs'

CERCLA claims. As the parties note, the Court
is not bound by the findings of an advisory jury
and must make its own findings of fact and
conclusions of law. As to the CERCLA causes
of action, the jury verdict was advisory.
*7 The Court did advise counsel that the
CERCLA verdict would be advisory:
Also, as I told you previously, and I think
I put in my written opinion, the CERCLA
cause of action is going to be an advisory to
the jury, unless you want to consent to have a
jury verdict. You can consent to do anything,
mostly.
If you want to consent to have a jury
trial finality, fine. Otherwise, it will be an
advisory verdict.
There was no such consent and therefore, the
jury verdict as to CERCLA was advisory.
However, as previously stated, “it would be
purposeless to have an advisory jury unless
some deference was shown to its opinions.”
Felker, 899 F.Supp. at 888-89. As such, the
Court gives some deference to the jury’s
verdict, but makes its own independent findings
of fact and conclusions of law.
Initially, the Court notes that the jury’s verdict
on the First Federal CERCLA cause of
action regarding NAFC is contrary to the
overwhelming weight of the evidence and, also
is inconsistent, as will be discussed later in this
opinion.
As to the first CERCLA cause of action, the
first question and answer in the verdict sheet is
as follows:

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1.

Did the defendants prove that
the defendant North Amityville Fire
Company was taking action “in response
to an emergency created by the release
or threatened release of a hazardous
substance”?
YES _________ No X

If your answer to question 1 is “YES,” please
answer question 2.
If your answer to question 1 is “NO,” you
have found a verdict in favor of the defendant
North Amityville Fire District in the first
Federal CERCLA cause of action. Please
proceed to question 3.
Notwithstanding the overwhelming evidence
that NAFC did act “in response to an
emergency created by the release or threatened
release of a hazardous substance,” as will be
set forth later in this opinion, the jury answered
“NO” to this question. Having answered “NO”
to this first question, in accordance with the
instructions, the jury did not answer question
2 and, instead, proceeded to question 3. In the
Court’s view, the answer to question 1 should
have been “Yes” and then, according to the
clear instructions, question 2 should have been
answered.
Question 2 of the verdict sheet as to the First
Federal CERCLA cause of action with the
accompanying instructions reads as follows:
2. Did the plaintiffs prove that in its actions at
the scene of the fire, the defendant North
Amityville Fire Company acted with gross
negligence or intentional misconduct?

YES _________ No X
If your answer to question 2 is “YES,”
you have found a verdict in favor of
the plaintiffs AMW Materials Testing and
Anthony Antoniou against the defendant
North Amityville Fire Company in the First
Federal CERCLA cause of action. In that
event, please proceed to question 5.
If your answer to question 2 is “NO,” you
have found a verdict in favor of the defendant
North Amityville Fire District in the first
CERCLA cause of action. Please proceed to
question 3.
In response to question 2, not answered by
the jury, the Court finds that the Plaintiffs
failed to prove that the NAFC acted with
gross negligence or intentional misconduct. As
will be discussed later in this opinion, the
evidence at trial revealed that NAFC acted in
accordance with accepted practice in fighting
this dangerous fire which involved the release
of hazardous substances. Therefore, the Court
finds that the Plaintiffs cannot prevail on
the First Federal CERCLA cause of action,
notwithstanding the jury’s clearly erroneous
advisory answer as to question 1 in the verdict
sheet.
*8 The inconsistency of the verdict as to
question 1 became apparent in the jury’s
answer to question 3, as to the Second Federal
CERCLA cause of action. Question 3 and its
accompanying instructions reads as follows:
3. Did the plaintiffs prove that some time
during its presence at the scene of the
fire, the defendant North Amityville Fire

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Company was not taking action “in
response to an emergency created by
the release or threatened release of a
hazardous substance”?
YES _________ No X
If your answer to question 3 is “YES,” please
answer question 4.
If your answer to question 3 is “NO,”
you have found a verdict in favor of the
defendant North Amityville Fire Company
in the Second CERCLA cause of action.
Please proceed to question 5.
This question inquired as to whether the
Plaintiffs proved that at “some time during its
presence at the scene of the fire, the defendant
North Amityville Fire Company was not taking
action ‘in response to an emergency created by
the release or threatened release of a hazardous
substance.’ ” The jury answered “NO,” to this
question. As such, on the one hand, in its
answer to question 1, the jury found that the
NAFC was not taking action in response to
the release of a hazardous substance, and in
question 3 the jury found that at all times they
were taking such action; a clear inconsistency.
In any event, the Court finds, by a
preponderance of the evidence, that at all times
during its presence at the fire, NAFC was taking
action “in response to an emergency created by
the release or threatened release of a hazardous
substance.” Therefore, the Court finds a verdict
in favor of the Defendant NAFC on the Second
Federal CERCLA cause of action.
As a result of their correct “NO” answer to
question 3, the jury did not answer question 4 in

the second CERCLA cause of action. Question
4 and the instructions for the question reads as
follows:
4. Did the plaintiffs prove that the defendant
North Amityville Fire Company was an
“operator” of the AMW Materials Testing
Facility, as the Court defined that term for
you?
YES _________ No X
If your answer to question 4 is “YES,”
you have found a verdict in favor of the
plaintiffs and against the defendant North
Amityville Fire Company in the Second
Federal CERCLA cause of action. Please
proceed to question 5.
If your answer to question 4 is “NO,”
you have found a verdict in favor of the
defendant North Amityville Fire Company
in the Second Federal CERCLA cause of
action. Please proceed to question 5.
However, as a result of the Court’s prior
findings, namely, that at all times, the
Defendant NAFC was taking action “in
response to an emergency created by the release
or threatened release of a hazardous substance,”
the Court need not reach the issue of whether
NAFC was an operator.
Notably, the parties, and especially, the
Plaintiffs, failed to object to the verdict’s
inconsistency. “It is well established that a party
waives its objection to any inconsistency in a
jury verdict if it fails to object to the verdict
prior to the excusing of the jury.” Kosmynka v.
Polaris Indus., 462 F.3d 74, 83 (2d Cir. 2006).
Specifically, “[a] litigant preserves the issue for

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appeal by exposing the inconsistency before the
jury is dismissed so that the court has available
to it the option of re-submitting the question to
the jury after some further instruction.” Id. In
the present case, the parties did not object or in
any way preserve the issue.
*9 However, if anyone had objected, the Court
had the option of resubmitting the CERCLA
questions to the jury with an explanation of
the inconsistency. If anyone had raised this
inconsistency, the Court would have done so.
The inconsistency was raised for the first time,
in post-trial motions, long after discharge of
the jury. The Plaintiffs “waived this argument
by failing to raise it before the jury was
dismissed.” Litras v. Long Island Railroad, 226
Fed.Appx. 31, 33 (2d Cir. 2007).
As a result, the Plaintiffs waived any objections
to these apparent inconsistencies by failing to
object at the time that the verdict was rendered
so that the issues could be resubmitted to the
jury. However, because the jury verdict was
advisory on the CERCLA issues, the Court is
now making its own findings.
As discussed above, if NAFC was in
fact responding to an emergency created
by the release or threatened release of a
hazardous substance, then the jury should
have determined whether NAFC acted with
gross negligence or intentional misconduct.
Although the jury failed to properly make this
finding with regard to NAFC, with regard to
the Town, the jury properly and consistently
found that the Town was responding to such an
emergency and did not act grossly negligent or
with intentional misconduct. The Court concurs
with the jury’s determination regarding the

Town and similarly, finds that NAFC was also
acting in response to such an emergency. The
Court further determines that neither NAFC
nor the Town acted grossly negligent or with
intentional misconduct. The Court will now
review the evidence as to these issues.
C. As To This Court’s Specific Findings of
Fact Regarding CERCLA
1. Both Defendants were Responding to
an Emergency Created by the Release or
Threatened Release of Hazardous Materials
The Court finds that NAFC and the Town
were responding to an emergency created by
the release or threatened release of hazardous
materials. According to the testimony at trial,
in the paint room there were three steel cabinets
with 40, 50 and 94, gallons of paint in each
cabinet. A tank on the premises had a 1,200
gallon capacity with 20% chromic acid and
there were six additional tanks containing
chromic acid, sulfuric acid and alodine. There
were 27 tanks on the premises, each with a
capacity of 270 gallons. These tanks were filled
with chemicals that were on the property at
time of the fire. Moreover, the fire started in
the paint room. Anthony Antoniou told the fire
marshal that the fire started in the paint room
with the chemical MEK. In addition, the facility
contained chemicals labeled “Inflammable”
and “Acids”. (Trial Transcript (“Tr.”) at 70-71,
113-14, 118, 162, 172, 149).
In a letter to AMW from the New York State
DEC, dated October 18, 2000, it was stated:
Dear Mr. Antoniou,

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On October 9, 2000 representatives of this
office, Suffolk County Department of Health
Services, Suffolk County Department of
Public Works and the Town of Babylon
Fire Marshal responded to a structure fire at
the above referenced site. Upon inspection
of the site, it was determined that the fire
control water had been contaminated with
various chemicals used in your building
including, but not limited to, Chromic Acid,
Nitric Acid, Methyl Ethyl Keton (MEK), and
Perchlorethene.
As a result, numerous storm drains on
Albany Avenue and New Highway were
impacted by this release as well as a
Suffolk County Recharge Basin located at
the southwest corner of New Highway and
Albany Avenue.
*10 Your contractor Allied All City has
commenced a clean-up of the area by the
removal of contaminated water from the
impacted storm drains, power washing of
the roadway parking lots and sediment
sampling.
Demolition and removal of building debris
must commence as soon as possible to
allow the collection, characterization and the
proper disposal of any remaining chemicals
at the site. As agreed, all porous materials
will be classified as hazardous waste and will
be handled appropriately. All other materials
(i.e. structural steel, concrete, etc.) will be
inspected and if necessary washed prior to
disposal.
(Tr. at 180). In addition, on October 24, 2000,
Antoniou wrote a letter to the New York State

DEC, enclosing a list of all chemicals stored at
the time of the fire which occurred on October
9, 2000 (Pl. Ex. 9). (Tr. at 182). The list of
chemicals was comprised of three pages and
listed the following chemicals on the AMW
premises at the time of the fire:
Page One (Pls. Ex. 9)
Working Anodizing Tanks
Chromic Acid Tank
1000 gallons
Total 12 oz/gal Chromium most in
trivalent state - high anode to cathode ratio
Sulfuric Acid Anodize 1000 gallons
20% W/W Sulfuric Acid
Alodine Anodize 1200S
1000 gallons <2% Chromium
250 gallon non-etch cleaner 6 oz/gal
Sodium Silicate Oakite 164
250 gallon aluminum etch 4 oz/gal
Sodium Hydroxide Oakite 160
250 gal Desmut 5% Nitric Acid Lnc Deox
250 gal black dye 5% Nickel Acetate
250 gal sealer 2 ox/gal Sodium Chromate
Remaining tank-rinse & Counte Rinses
through Ion Exchange
Ion Exchange
10 cu/ft Cation Resin

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AMW Materials Testing, Inc. v. Town of Babylon, Slip Copy (2008)
2008 WL 11449231

20 cu/ft Anion Weak & Strong Base Resin
Page Two
MEK 140 gallons
Water primer 50 gal
10-11 Primer 60 gal
High Solids Primer 30 gal

PH 4 Buffer
PH 7 Buffer
PH 10 Buffer
AA STDS Metals 30 ML 1000PPM
Waste Oil 3 55 gal drums
Zyglo-Bentinite Waste 35 gal

Topcoats 75 gal
Paint Thinners 15 gal
Waste Paint 85 gal
For Future Use - Not Constructed
Cadmium Anodes 1100 lbs in boxes, 2
skid
Laboratory
Normal Reagents of low normality for
analytical purposes

Page Three
Chemical Inventory
Sodium Chromate - 50 lbs
Ammonium Fluoride - 25 lbs
Chromic Acid - 50 lbs
Sodium Benzoate - 50 lbs
Boric Acid - 100 lbs
Aluminum Sulfate - 200 lbs

1.N NaOH

Oakite 164 100 lbs

1.N HCI

Oakite 160 - 100 lbs

10% ICG

LNC < 50 gal

.5 N NaThiosulfate

Sulfuric Acid Conc 30 gal

0.5 N Iodine

Nitric Acid Reagent - 20 gal
Testing Dept
Penetrant (Mag) ZL67

30 GAL

Sherwin RC 77

10 gal

ER 83

5 gal

ER 85

10 gal

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AMW Materials Testing, Inc. v. Town of Babylon, Slip Copy (2008)
2008 WL 11449231

Dry Developer

Steel Mag Test
MX Carrier (Kerosene) 100 gal petroleum product
Perc - 40 gal in degreaser no inventory
Mil-Spec Aircraft Stripper - 15 gallons
150 gallons Alkaline Etch Sodium
Hydroxide 4 oz/gal
150 gallons Desmut LNC
There is no doubt that some of the chemicals
used at the AMW facility were hazardous. (See
Pls. Ex. 10C - Methyl Ethyl Ketone (MEK)
“is hazardous as defined in 29 CFR 1910.1200.
OSHA hazard - flammable”). Moreover, the
Town of Babylon issued a Fire Prevention
Division Permit to AMW on June 15, 1995 (Pls.
Ex. 18) in which it is stated:

30 lbs

common fire hazards are ... Improper storage
of flammable and/or combustible liquids.” A
waste removal reporting form from the Suffolk
County Department of Public Works dated
March 12, 2001 listed substantial amounts
of “hazardous waste” and “hazardous soil”
that were removed from the AMW facility.
(Pls. Ex. 25). In addition, on December 6,
2001 the Suffolk County, Office of Pollution
Control listed the AMW facility as “all tanks
removed” including industrial waste, chromic
acid, sulfuric acid and alodine. (Pls. Ex. 26).
*11 One of the processes used in the
AMW facility was called a “degreaser” which
involved a chemical called Perchloroethylene,
a very dangerous solvent. According to the trial
testimony:
Q Now, that degreaser, that was a
process that – a chemical called
Perchloroethylene?
****

authority is hereby given
and
this
permit
is
granted for Flammable and/
or Combustible Liquids;
hazardous chemicals; ovens;
spraying operations.

On May 15, 1995, the Town of Babylon
wrote to AMW as to renewal of its permit
“for flammable and/or combustible liquids,
hazardous chemicals, spraying operations,
ovens.” (Pls. Ex. 24(b)-(1) ). The letter
went on to state that “some of the most

BY MR. SHAHAN:
Q Perchloroethylene was a very dangerous
solvent. Is that correct?
A That’s correct.
Q In fact, that was probably the most
poisonous thing you had on the premises?
A Yes.
Q And the MSDS sheet for that indicates that
it can cause death. Correct?

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AMW Materials Testing, Inc. v. Town of Babylon, Slip Copy (2008)
2008 WL 11449231

A I'd have to look at it.

Alodine Anodize 1200S

Q Do you have that MSDS there?

1000 gallons < 2% Chromium

A Yes, I do.

250 gallon non-etch cleaner 6 oz/gal Sodium
Silicate Oakite 164

Q And does that MSDS sheet, in fact, say that
Perchloroethylene can cause death?
A It says cause unconsciousness and death,
yes.
There is no doubt that fighting the fire at the
AMW facility on October 9, 2000 subjected the
firefighters to more peril and even risk of death
than a fire without these hazardous materials.
Moreover, after the fire, a letter to the New York
DEC, dated October 24, 2000, from AMW,
enclosed “a list of all chemicals stored at
the above address at the time of the fire on
10/9/00.” (Pls. Ex. 9). The list, as stated below,
included hazardous substances:
Working Anodizing Tanks

250 gallon aluminum etch 4 oz/gal Sodium
Hydroxide Oakite 160
250 gal Desmut 5% Nitric Acid LNC Deox
250 gal Black Dye 5% Nickel Acetate
250 gal Sealer 2 ox/gal Sodium Chromate
Remaining tan-rinse & Counte Rinses
through ION exchange
ION Exchange
10 cu/ft Cation Resin
20 cu/ft Anion weak & strong Base Resin
Military Paint

Chromic Acid Tank

MEK 140 GALLONS

1000 gallons

Water Primer 50 gal

Total 12pz/gal Chromium most in trivalent
state

10-11 Primer 60 gal

- High Anode to Cathode ratio
Sulfuric Acid/Boric Acid 1000 gallons
8% Sulfuric Acid - 40 G/L Boric Acid
Sulfuric Acid Anodize 1000 gallons
20% W/W Sulfuric Acid

High Solids Primer 30 gal
Topcoats 75 gal
Paint thinners 15 gal
Waste Paint 85 gal
For Future Use - Not Constructed
Cadmium Anodes 1100 lbs in boxes, 1 skid
Laboratory

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AMW Materials Testing, Inc. v. Town of Babylon, Slip Copy (2008)
2008 WL 11449231

Normal Reagents of Low Normality for
Analytical Purposes

Chemical Inventory
Sodium Chromate - 50 lbs

1.N NaOH

Ammonium Fluoride - 25 lbs

1.N HCI

Chromic Acid - 50 lbs

10% ICF

Sodium Benzgate - 50 lbs

.5N NaThiosulfate

Boric Acid - 100 lbs

0.5N Iodine

Aluminum Sulfate - 200 lbs

PH 4 Buffer

Oakite 164 - 100 lbs

PH 7 Buffer

Oakite 160 - 100 lbs

PH 10 Buffer

LNC < 50 gal

AA Stds Metals 30 ML 1000PPM

Sulfuric Acid Conc 30 gal

Waste Oil 3 55 gal drums

Nitric Acid Reagent - 20 gal

Zyglo-Bentinite Waste 35 gal

Testing Dept
Penetrant (Mag)

ZL67 30 gal

Sherwin

RC 77 10 gal
ER 83 5 gal
ER 85 10 gal
Dry Developer 30 lbs

150 gallons Desmut LNC

Steel Mag Test
MX Carrier (Kerosene) 100 gal
PERC - 40 gal in degreaser no inventory
Mil-Spec Aircraft Stripper - 15 gallons
150 gallons Alkaline
Hydroxide 4 oz/gal

Etch

Sodium

In fact, the Plaintiff Anthony Antoniou
conceded that AMW worked with flammable
substances, even though he didn't always
acknowledge this in his permit applications.
Q And number 17, flammable finishes,
were you applying flammable finishes to
product?

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AMW Materials Testing, Inc. v. Town of Babylon, Slip Copy (2008)
2008 WL 11449231

A I'm not sure what that means.
Q You were applying paint to products,
correct?
*12 A Yes.
Q And some of those patients were
flammable?
A Yes.
(Tr. at 260).
Q The MEK is a substance that is extremely
prone to ignition by static electricity; is it
not?
A I believe so.
Q And, in fact, you believe that’s how this
fire started, correct?
A I believe so.
(Tr. at 291).
Q Now, we talked a little bit about the MEK,
and that’s a highly flammable substance.
Correct?
A Yes.
(Tr. at 304). In addition, Town of Babylon
Fire Marshal Anthony Calabro testified that
the AMW Fire Prevention Permit application,
dated January 15, 2000 contains a list
of hazardous chemicals, flammables and
combustibles. (Tr. at 709).
The Court notes that the Alarm Detail Dispatch
for the fire (Pls. Ex. 27) contains the words,

“Please Note Hazardous Materials,” and the
“highest level of hazard with respect to
flammables were in that building.” In addition,
the firefighters treated the fire as a “hazardous
material incident.” A Chief of the NAFC
testified that “the intensity of this fire was the
hottest fire I ever been in my life.” (Tr. at 754,
893,1234).
Patrick Enochs, the owner of Chemical
Pollution Resources, the company that was
retained by the repair company hired by AMW,
reported to the scene of the fire on the night of
the fire. His job was to clean the contaminated
water emanating from the fire. He testified as to
the chemicals appearing in the lab results (Pls.
Ex. 41), which clearly contained hazardous
substances including MEK, acetone, stylene
(paint remover) and other chemicals, including
a release of petroleum. Enochs also described
in detail his efforts to remediate the area
with regard to the chemicals, including the
hazardous substances. In addition, he testified
that the water run-off from the fire contained
“contamination.” (Tr. at 1731-32). Also in
evidence was a Suffolk County Department of
Public Works document (Pls. Ex. 25) which
listed 25 hazardous debris and hazardous waste
water removed from the scene of the fire at
AMW.
Nick Acampora of the New York State
Department of Environmental Conservation
also was present at the scene of the
fire. He routinely responds to hazardous
waste spills. His role at the fire was to
address the contamination. Walter Parrish was
another DEC official who testified. He stated
that the DEC “reasonably documented the
remediation actions at the AMW facility.”

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AMW Materials Testing, Inc. v. Town of Babylon, Slip Copy (2008)
2008 WL 11449231

Significantly, Parrish testified that DEC made
a determination that hazardous material had
been released into the environment at the AMW
facility.
Q Did the DEC make a determination that
hazardous materials had been released
into the environment at the AMW facility?
A Yes.
Q And what was that determination?
A Well, based upon the inventory that we
were given, either at the time of the fire
or right after it, there were a number of
hazardous materials that were stored onsite and used on-site. The fire destroyed
the building and the material was released.
(Tr. at 1878-79).
The Plaintiffs' firefighting expert, John Turley,
testified that in the fire of October 9, 2000,
at the AMW facility, there was a release
of hazardous materials and chemicals into
the environment. (Tr. at 2341). So did,
the Defendants' expert, Andrew Barber, an
environmental consultant, who also testified
that there was a hazardous material release at
the fire at AMW:
*13 Q Thank you. By the way, there is no
– you don't have any doubt that there was
a hazardous material release at this site,
correct?
A No.
Q And that the source of that release was, in
fact, fire water, at least in part?

A At least in part.
(Tr. at 2769).
John Norman III is a retired Deputy Assistant
Chief in the New York City Fire Department.
He was called as an expert witness by
the Defendants. He is also an instructor
in hazardous materials. Norman was of the
opinion that there was a release of hazardous
materials in the fire and it could not be
prevented by the firefighters. In his opinion, the
destruction of the building by the fire caused
the release of the hazardous materials. And that
the use of the pay loader by the firefighters
occurred “well after hazardous materials were
released.” “The release was going to occur,
regardless of what happened here.” This fire
became a “hazardous materials incident.” (Tr.
at 2922, 2928-29, 2936, 2947).
Also, it was the opinion of Norman that the
actions of AMW were a substantial cause of the
release of hazardous materials.
Q Do you have an opinion to within
a reasonable degree of certainty as to
whether those actions by AMW were
a substantial cause of the release of
hazardous materials?
A I do.
MR. LUSTBERG: Objection.
THE COURT: Overruled.
A I do, sir. Yes.
Q What is that opinion?

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AMW Materials Testing, Inc. v. Town of Babylon, Slip Copy (2008)
2008 WL 11449231

A The fire and the resulting destruction of the
building played a large role in releasing
hazardous materials. If the fire doesn't
start, the Hazmats stay in their containers.
If the building isn't destroyed in the fire,
the Hazmats stay in their containers.
(Tr. at 2959).
Clearly the evidence revealed that the Plaintiffs
failed to prove that there was any time, at the
scene of the fire, that the North Amityville Fire
Company or the Town were not taking action
“in response to an emergency created by the
release or threatened release of a hazardous
substance.” The AMW facility was loaded
with inflammable substances and hazardous
materials. From the very inception of the
fire, caused by the inflammable substances,
the threatened release and release of these
substances was a hazard, even before the North
Amityville Fire Company arrived at the scene.
As such, the Court finds that NAFC and the
Town were acting in response to “an emergency
caused by the release or threatened release of
a hazardous substance.” (See Verdict Sheet,
Question 1). As a result, the Court must decide
whether the NAFC or the Town acted with
gross negligence or intentional misconduct.
(See Verdict Sheet, Question 2).
2. As to the Liability of the NAFC
for Gross Negligence or Intentional
Misconduct
In its charge, the Court defined the term “gross
negligence,” as follows:

Gross negligence is defined in the statute as
reckless, willful or wanton misconduct.
Reckless is characterized by the creation of
substantial and unjustifiable risk of harm to
others and by a conscious and deliberate
disregard or indifference to that risk; to act in
a heedless or rash manner. Reckless conduct
is much more than mere negligence; it is
a gross deviation from what a reasonable
person would do.
Willful means a voluntary and intentional
act.
*14 Wanton misconduct means to act
unreasonably or maliciously while being
utterly indifferent to the consequences.
A review of the record reveals that, clearly,
there was no intentional misconduct or gross
negligence on the part of the NAFC. In this
regard the Court accepts the testimony of
former New York City Fire Department Deputy
Chief John Norman III that the loss of the
building was inevitable; that nothing the North
Amityville Fire Company could do would
save the building; that the actions of Chief
Tutt and the North Amityville Fire Company
conformed to industry standards; that the attack
methods exercised by the North Amityville Fire
Company, including the use of the deck gun and
the pay loader, were within industry standards;
and that the action of the North Amityville
Fire Company did not cause or contribute to
the release of the hazardous materials. Norman
testified at length and with specificity about
all of the activities of the North Amityville
Fire Company, and that they were all within
firefighting industry standards. In particular, as

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19

AMW Materials Testing, Inc. v. Town of Babylon, Slip Copy (2008)
2008 WL 11449231

to the hazardous materials element, he testified
that after the incident became a hazardous
material incident, it was handled appropriately
by the North Amityville Fire Company. (Tr. at
2956-2957).

the plaintiffs AMW Materials Testing and
Anthony Antoniou against the defendant
North Amityville Fire Company in the First
Federal CERCLA cause of action. In that
event, please proceed to question 5.

As such, the Court finds that the NAFC did
not act with gross negligence or intentional
misconduct. Therefore, the following are the
Court’s responses to the relevant questions on
the verdict sheet:

If your answer to question 2 is “NO,” you
have found a verdict in favor of the defendant
North Amityville Fire District in the first
CERCLA cause of action. Please proceed to
question 3.

As to the First Federal CERCLA cause of
action:

As to the Second Federal CERCLA cause of
action:

1.

3. Did the plaintiffs prove that some time
during its presence at the scene of the
fire, the defendant North Amityville Fire
Company was not taking action “in
response to an emergency created by
the release or threatened release of a
hazardous substance”?

Did the defendants prove that
the defendant North Amityville Fire
Company was taking action “in response
to an emergency created by the release
or threatened release of a hazardous
substance”?
YES X No _____

If your answer to question 1 is “YES,” please
answer question 2.
If your answer to question 1 is “NO,” you
have found a verdict in favor of the defendant
North Amityville Fire District in the first
Federal CERCLA cause of action. Please
proceed to question 3.
2. Did the plaintiffs prove that in its actions at
the scene of the fire, the defendant North
Amityville Fire Company acted with gross
negligence or intentional misconduct?
YES X No _____
If your answer to question 2 is “YES,”
you have found a verdict in favor of

YES X No _____
If your answer to question 3 is “YES,” please
answer question 4.
If your answer to question 3 is “NO,”
you have found a verdict in favor of the
defendant North Amityville Fire Company
in the Second CERCLA cause of action.
Please proceed to question 5.
*15 Based on its determinations that NAFC
was responding to an emergency caused
by the release or threatened release of
hazardous substances and did not act with
gross negligence or intentional misconduct, the
Court need not reach the issue of operator
status. Accordingly, the Court finds and directs
a judgment in favor of the Defendant North

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20

AMW Materials Testing, Inc. v. Town of Babylon, Slip Copy (2008)
2008 WL 11449231

Amityville Fire Company on both Federal
CERCLA causes of action.
3. As to the Town’s CERCLA Liability
As to both of the Federal CERCLA causes of
action against the Town, the evidence supports
the advisory jury verdict as to the Defendant
Town of Babylon. As previously stated, it is
clear that both Defendants were responding
to an emergency created by the release or
threatened release of hazardous chemicals.
Moreover, it is also evident that the Town did
not act with gross negligence or intentional
misconduct.
In this regard, the Court again accepts the
testimony of former New York City Deputy
Assistant Chief John Norman III, with regard
to the actions of the Defendant Town of
Babylon. His testimony was clear, unequivocal
and convincing. For example, as to the handling
of the hazardous material by the Town official
on the scene, he testified to the following:
Q Do you have an opinion to within a
reasonable degree of certainty whether
after this incident became a hazardous
materials incident, it was handled
appropriately by the Town of Babylon.
MR. LUSTBERG: Objection, your Honor.
THE COURT: Overruled.
A Yes, sir. I believe that the Town of
Babylon, particularly the fire marshals
office, performed to the level that they
were trained to, they were technicians,
he was a technician, hazardous materials
technician and he performed functions

such as testing of the runoff water, which
is a technician level skill.
Q What other functions did he perform at the
fire based upon the testimony?
A

He acted as the liaison with
the Department of Environmental
Conservation, and with the Department of
Health. And also monitored the air around
the environment, particularly the runoff
water, again, a technician level skill.

(Tr. at 2957).

a. As to the First CERCLA Cause
of Action against the Town
This advisory jury verdict, as to the defendant
Town of Babylon, concurred in by the Court,
reads as follows:
5. Did the defendants prove that the
defendant Town of Babylon was taking
action “in response to an emergency
created by the release or threatened release
of a hazardous substance”?
YES X No _____
If your answer to question 5 is “YES,” please
answer question 6.
If your answer to question 5 is “NO,” you
have found a verdict in favor of the defendant
North Amityville Fire District in the first
Federal CERCLA cause of action. Please
proceed to question 7.
6. Did the plaintiffs prove that in its actions
at the scene of the fire, the defendant Town

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21

AMW Materials Testing, Inc. v. Town of Babylon, Slip Copy (2008)
2008 WL 11449231

of Babylon acted with gross negligence or
intentional misconduct?
YES X No _____
If your answer to question 6 is “YES,”
you have found a verdict in favor of
the plaintiffs AMW Materials Testing and
Anthony Antoniou against the defendant
Town of Babylon in the first Federal
CERCLA cause of action. In that event,
please proceed to the instructions preceding
question 9.
If your answer to question 6 is “NO,” you
have found a verdict in favor of the defendant
Town of Babylon in the first CERCLA cause
of action. Please proceed to question 7.

b. As to the Second CERCLA
cause of action against the Town
*16 7. Did the plaintiffs prove that some
time during its presence at the scene of
the fire, the defendant Town of Babylon
was not taking action “in response to
an emergency created by the release
or threatened release of a hazardous
substance”?
YES X No _____
If your answer to question 7 is “YES,” please
answer question 8.
If your answer to question 7 is “NO,” you
have found a verdict in favor of the defendant
town of Babylon in the second Federal
CERCLA cause of action. Please proceed to
the instructions preceding question 9.

Accordingly, the Court finds and directs a
judgment in favor of the Defendant Town of
Babylon on both of the Federal CERCLA
causes of action.
If the Defendants had not been responding
to an emergency, then the jury would have
had to determine whether the Defendants
were operators. As the Court finds that the
Defendants were acting in response to an
emergency and were not grossly negligent, the
Court need not reach the issue of whether
the Defendants were operators of the AMW
facility.
Accordingly, the Court finds that both
Defendants were responding to an emergency
and did not act grossly negligent or with
intentional misconduct. As such, the Court
finds in favor of the Defendants on the
CERCLA causes of action. The Plaintiffs'
motions as to CERCLA are denied and
judgment is directed to be entered in favor
of both Defendants dismissing all the Federal
CERCLA causes of action.
D. As To The Plaintiffs' New York
Navigation Law Claims
The Plaintiffs contend that they are entitled
to a new trial or judgment as a matter of
law on their Navigation Law claims because,
on summation, defense counsel relied upon
three documents that were not in evidence
at the trial. The Plaintiffs claim that defense
counsel said that he erroneously relied on
those documents because they were attached
to an exhibit from the prior trial of this case.
Although the Plaintiffs acknowledge that the
Court gave the jury a curative charge regarding
the error, the Plaintiffs contend that the Court’s

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22

AMW Materials Testing, Inc. v. Town of Babylon, Slip Copy (2008)
2008 WL 11449231

curative charge exacerbated the prejudice to the
Plaintiffs.
The Court gave the jury the following curative
charge:
During the summation,
counsel for the defendant,
Stephen
Shahan,
inadvertently believed that
three pages in plaintiff’s
exhibit 45 were in evidence
but they apparently–not
apparently–they were not in
evidence. And these pages
in which he showed you a
blowup, which I'm going to
give you a quick look at, of
a uniform hazardous waste
manifest dated December 28,
2000, and he stated to you
in his summation that these
manifests demonstrated that
petroleum product had not
been spilled or released
and argued based on these
three pages, among other
things. He argued based
on these three pages that
petroleum had not been
released. I'm telling you
now, those three pages were
never admitted in evidence
and they're not before you.
They should be disregarded.
And his statement to you
about the meaning of
these three pages with
regard to petroleum release

should be disregarded. As
I said, this was inadvertent
because counsel believed
that they were. They had
been attached to a different
copy of the exhibit, but
not the one that went into
evidence. You're to disregard
the statements with regard
to those three pages of
plaintiff’s 45 because of
the fact they were not in
evidence.
*17 (Tr. at 3630-31). The Court finds that this
charge was proper and there is no evidence that
the Plaintiffs were prejudiced.
Moreover, the Plaintiffs failed to object to the
curative charge at the time or immediately
thereafter. As a result, the Plaintiffs waived
any such objection. SCS Communs., Inc. v.
Herrick Co., 360 F.3d 329, 343 (2d Cir. 2004)
(“Under Fed. R. Civ. P. 51, ‘[a] party who fails
to object to a jury instruction at trial waives
the right to make that instruction the basis for
an appeal’ ”) (internal citations omitted); Local
Union No. 38, Sheet Metal Workers' Int'l Ass'n
v. Pelella, 350 F.3d 73, 87 (2d Cir. 2003) (“A
party that ‘fails to object to a jury instruction
at trial waives the right to make that instruction
the basis for an appeal’ ”) (internal citations
omitted); Wright v. Wilburn, 194 F.R.D. 54, 58
(N.D.N.Y. 2000) (“failure to object to a jury
instruction or the form of an interrogatory prior
to the jury retiring results in a waiver of that
objection”).

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23

AMW Materials Testing, Inc. v. Town of Babylon, Slip Copy (2008)
2008 WL 11449231

Accordingly, the Plaintiffs' motions for
judgment as a matter of law and a new trial on
the Navigation Law claim are denied.

all three tests referred to in Pelaez v. Seide, 2
N.Y.3d 186, 810 N.E.2d 393, 778 N.Y.S.2d 111
(2004), including the Cuffy test. In particular,
in its prior decision, the Second Circuit noted:

E. As To The Plaintiffs' Negligence Claims
The Plaintiffs contend that judgment as a
matter of law is appropriate on their negligence
claims because a special relationship existed by
virtue of the Defendants' actions. The Plaintiffs
contend that the test set forth in Cuffy v City
of New York, 69 N.Y.2d 255, 505 N.E.2d 937,
513 N.Y.S.2d 372 (1987), is inapplicable to the
facts of the present case. In support of their
contentions they claim that “in the first trial,
the jury would have found for plaintiffs on the
negligence cause of action.”

The standard for determining whether
a municipality has a duty during the
administration of emergency services has
been summarized as follows: “If conduct has
gone forward to such a stage that inaction
would commonly result, not negatively
merely in withholding a benefit, but
positively or actively in working an injury,
there exists a relation out of which arises
a duty to go forward.” ... This duty may
arise in three different ways: (1) when
the municipality violates a statutory duty
enacted for the benefit of a particular class
of persons of which the plaintiff is one;
(2) when it voluntarily assumes a duty that
generates justifiable reliance; (3) when the
municipality assumes positive direction and
control in the face of known, blatant, and
dangerous safety violations. Pelaez v. Seide,
2 N.Y.3d 186, 199, 810 N.E.2d 393, 778
N.Y.S.2d 111 (2004).

As previously stated, in the first trial, the
jury was unable to reach a verdict and
the case resulted in a disagreement. The
hypothetical conclusions by the Plaintiffs'
counsel that the first jury “would have”
made certain determinations are completely
irrelevant as to the present trial. In fact, the
Court finds that the Plaintiffs' counsel incessant
reliance, throughout their motion papers, on
a hypothetical verdict which never occurred,
is not only not relevant as to the present
trial, but also, in the Court’s view, completely
inappropriate.
In addition to their contention that the first jury
“would have” found in their favor, the Plaintiffs
also contend that the Cuffy test is inapplicable
in the present case. They contend that the Cuffy
test was not set forth by the Second Circuit
in its decision as an appropriate test for use
in the present case. The Court disagrees. As
the Defendants correctly note in their motion
papers, the Second Circuit specifically cited to

*18 AMW, 187 Fed.Appx. 24. In Pelaez, the
court specifically cited to the Cuffy test, stating:
Most of our municipal
special relationship cases
have centered on whether
a municipality has assumed
an affirmative duty that
generated justifiable reliance
by the plaintiff. We laid out
the test in Cuffy v City
of New York (69 N.Y.2d
255, 505 N.E.2d 937, 513

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AMW Materials Testing, Inc. v. Town of Babylon, Slip Copy (2008)
2008 WL 11449231

N.Y.S.2d 372 [1987] ). It
requires (1) an assumption
by a municipality, through
promises or actions, of
an affirmative duty to act
on behalf of the injured
party; (2) knowledge on
the part of a municipality’s
agents that inaction could
lead to harm; (3) some
form of direct contact
between the municipality’s
agents and the injured
party; and (4) that party’s
justifiable reliance on the
municipality’s affirmative
undertaking (id. at 260, 505
N.E.2d 937, 513 N.Y.S.2d
372).
Pelaez, 2 N.Y.3d at 202, 778 N.Y.S.2d 111,
810 N.E.2d 393. As a result, the Plaintiffs'
contention that the Second Circuit did not
intend this Court to rely on Cuffy is without
merit. Although the Plaintiffs suggest that this
Court “re visit the inapplicability of Cuffy,”
other than asserting that the Second Circuit did
not intend its use and that the previous jury
would have found in their favor, the Plaintiffs
present no other claims in support of their
argument.
The Court notes that its instructions to the
jury clearly track the language of Cuffy, as
set forth in the above-mentioned Pelaez case.
In addition, this Court properly instructed
the jury that, in order to find that a special
relationship existed, the jury had to find that
the Town or NAFC “through direct promises

or conduct signifying such a promise, expressly
undertook a duty to the Plaintiffs to protect
them from damages of the sort complained of
in this action, and that the duty so assumed
was beyond the general duty to provide fire
protection services to the public.”
The jury determined that the Defendants did not
have a special relationship with the Plaintiffs.
The jury’s decision was based on a reasonable
view of the evidence and a court may not
grant a judgment as a matter of law unless
“the evidence is such, that without weighing
the credibility of the witnesses or otherwise
considering the weight of the evidence, there
can be but one conclusion as to the verdict
that reasonable [persons] could have reached.”
Cruz, 34 F.3d at 1154-55 (quoting Simblest,
427 F.2d at 4).
As such, the Plaintiffs' motion for judgment
as a matter of law on the negligence claims is
denied.
F. As To The Plaintiffs' Remaining Claims
On the final page of the Plaintiffs' submission,
they contend that this Court should order
a new trial because they were prejudiced
by the “cumulative impact of misstatements
and knowingly misleading arguments by
defendants.” The Plaintiffs contend, without
a single citation to the trial transcript, that
the Defendants made misleading comments in
their opening statement and used misleading
lines of questioning. However, the Plaintiffs
unsupported contentions, without any evidence
cited from the trial transcript, are insufficient
to justify the grant of a new trial. This Court
is not “convinced that the jury has reached a

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25

AMW Materials Testing, Inc. v. Town of Babylon, Slip Copy (2008)
2008 WL 11449231

seriously erroneous result or that the verdict is a
miscarriage of justice.” Tesser, 370 F.3d at 320.
*19 As such, the Plaintiffs' motion for a new
trial on this ground is denied.

III. CONCLUSION
Based on the foregoing, it is hereby
ORDERED, that judgment is entered in favor
of both Defendants on both of the Federal
CERCLA claims; and it is further
ORDERED, that the Plaintiffs' motion for
judgment as a matter of law is DENIED in its
entirety; and it is further
End of Document

ORDERED, that the Plaintiffs' motion for a
new trial is DENIED in its entirety; and it is
further
ORDERED, that the Clerk is directed to enter
judgment in favor of the Defendants dismissing
the complaint in its entirety; and it is further
ORDERED, that the Clerk’s Office is directed
to terminate all pending motions and close this
case.
SO ORDERED.
All Citations
Slip Copy, 2008 WL 11449231
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© 2019 Thomson Reuters. No claim to original U.S. Government Works.

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