Spinelli, et al v. The City of New York, et al
Filing
61
OPINION: For the reasons set forth in this Opinion, Plaintiffs' motion for a new trial is denied. (Signed by Judge Robert W. Sweet on 7/11/2011) (tro)
UNITED STATE DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
x
ANGELA SPINELLI and OLINVILLE ARMS,
INC. ,
Plaintiffs,
againstTHE CITY OF NEW YORK,
Defendant.
A P PEA RAN C E S:
for Plaintiffs
LAW OFFICE OF DAVID A. ZELMAN
612 Eastern Parkway
Brooklyn, NY 11225
By: David A. Zelman, Esq.
for Defendant
MICHAEL A. CARDOZO
100 Church Street
New York, NY 10007
By: Robin Binder, Esq.
Mark W. Muschenheim, Esq.
02 Civ. 8967
OPINION
Sweet, D.J.
Plaintiffs Angela Spinelli (IISpinellill or the
(flOlinville fl )
IIPlaintiffll) and Olinville Arms,
Inc.
(collectively, the flPlaintiffs")
have moved pursuant to Federal
Rule of Civil Procedure 59 for a new trial.
Upon the
conclusions set forth below, the motion is denied.
Prior Proceedings
This action against Defendant the City of New York
(flCity" or the flDefendant")
stems from the October 9, 2001
suspension, by the New York City Police Department ("NYPD")
License Division (II
cense Division"), of the licenses of
Olinville to sell guns based on an NYPD inspection that occurred
the prior day that revealed significantly compromised security
at the store.
After Olinville addressed the compromised
security, on December 5, 2001, its licenses to sell guns were
reinstated.
In 2002, Olinville and its owner, Spinelli, commenced
this action.
In 2007, the City's motion for summary judgment
1
was granted, and Plaintiffs' cross motion was denied.
Plaintiffs appealed, and in 2009 the Second Circuit held that
Plaintiffs' Fourth Amendment rights were not violated when the
NYPD inspected Olinville, and that their due process rights were
not violated when the License Division suspended Olinville's
licenses due to exigent circumstances that required prompt
action (namely, the inadequate security) .
i
v. Ci
New York, 579 F.3d 160, 167-68, 170-71 (2d Cir. 2009).
of
The
Second Circuit also held that Olinville's due process rights
were violated because the License Division's post-suspension
procedures (the suspension notice and the lack of a post
suspension hearing) were inadequate and remanded to determine
damages.
Id. at 172, 175.
Prior to trial, in an October 26,
2010 Decision, this Court held that the
cense Division was
required to provide Olinville a hearing to contest the
suspension within thirty days of the suspension, by November 8,
2001.
This action was tried before a jury from November 8 to
November II, 2010.
At the beginning of the trial, the City
conceded that Olinville was entitled to lost profits between
November 16 and December 5, 2001 that stemmed from the
suspension.
In addition to various exhibits introduced by both
2
sides, five witnesses were called by Plaintiffs: Olinville's
employees Juan Cabrera (flCabrera fl ) and Dominick Soricelli
(flSoricellifl)
I
Spinelli, Spinelli's doctor Sundararag Mohandoss
(flDr. Mohandoss fl ), and, by deposition, Olinville's accountant,
Marvin Cohen (flCohenfl).
Two witnesses were called by the City:
the License Division Director, Thomas Prasso (flDirector Prasso fl )
and, by depos
ion, Olinville's attorney during the 2001
suspension, John Chambers (flChambersfl).
On November II, 2010,
the jury returned a verdict of ten thousand dollars for
Olinville and zero dollars for Spinelli.
The Rule 59 Standard
The Second Circuit has held that a Rule 59 motion for
a new trial should be denied "unless the tri
court is
convinced that the jury has reached a seriously erroneous result
or that the verdict is a miscarriage of justice."
AIG Global
Sec. Lending Corp. v. Banc of Am. Sec., LLC., 386 Fed. Appx. 5,
7 (2d Cir. 2010)
(quoting -------~-----------~~~--~~~~~~
Medforms Inc. v.
Sglutions, Inc., 290 F.3d 98, 106 (2d Cir. 2002)) i see Malmsteen
v. Berdon, LLP, 369 Fed. Appx. 248, 249 (2d Cir. 2010)
Medforms, 290 F.3d at 106) i Tesser v. Bd
314, 320 (2d Cir. 2004)
(quoting
, 370 F.3d
(quoting Hugo Boss Fashions, Inc. v.
3
Fed. Ins. Co., 252 F.3d 608, 623 24
(2d Cir. 2001)).
When
considering whether the jury's result was seriously erroneous or
a miscarriage of justice, "a court should rarely disturb a
jury's evaluation of a witness' credibility."
DLC Mgmt. gorp.
v. Town of Hyde Park, 163 F. 3d 124, 134 (2d Cir. 1998)
Dunlap-McCull~r
Cir. 1992)
1992)).
i
(citing
v. Riese Organization, 980 F.2d 153, 157 (2d
Metromedia Co. v. Fugazy, 983 F.2d 350, 363 (2d Cir.
Although some courts have stated that "a motion for a
new trial may be granted even if there is substantial evidence
to support the jury's verdict ... in practice courts do not grant
new trials as freely as the language suggests."
Pr~ducts
2010)
In re MTBE
Liability Litigation, 739 F. Supp. 2d 576,
(S.D.N.Y.
(quoting Caruolo v. John Crane, Inc., 226 F.3d 46, 54 (2d
Cir. 2000))
(internal quotation marks omitted).
demonstrate that a new trial is appropriate,
heavy burden."
To sufficiently
"the movant bears a
Goetz v. Hershman, No. 06 Civ. 8180, 2010 U.S.
Dist. LEXIS 70983, at *32 (S.D.N.Y. Jul. 14, 2010) aff'd and
vacated on other grounds in 2011 U.S. App. LEXIS 10311 (2d Cir.
May 20, 2011).
The Verdict of Nominal Damages for Spinelli's Emotional Distress
Claim Was Not Seriously Erroneous or Against the Weight of
Evidence
4
Spinelli contends that the jury's verdict awarding
Spinelli only nominal damages for emotional distress resulting
from inadequate notice or lack of a post suspension hearing was
seriously erroneous.
The City asserts that, as a matter of law,
Spinelli could not seek emotional distress damages based on her
due process claim under 42 U.S.C.
§
1983 because a plaintiff
must demonstrate, among other things, a deprivation of a right
protected by the Constitution.
696 97 (1976).
See Paul v. Davis, 424 U.S. 693,
To determine whether due process rights were
violated, the threshold question is whether the plaintiff has
been deprived of a liberty or property interest that is subject
to due process protection.
~C_o_I~~__~v.~~.~R~o~t_h,
See Board of
s of State
~----~~~.~~~~~~~~~~
408 U.S. 564, 569-70 (1972).
Any property
interests are "created and their dimensions are defined by
existing rules or understandings that stem from an independent
source .... "
Id. at 577.
The City contends that Spinelli cannot assert a due
process claim since her purported interest in her reputation,
without more, is not a property right protected by due process,
see Paul, 424 U.S. at 711-12, and Spinelli has not pointed to
any New York law that provides her "any legal guarantee of
present enjoyment of reputation which has been altered as a
5
result of [defendants'] actions."
See Id.
Plaintiffs contend
that Spinelli was upset by the fact that she did not know the
reasons for the suspension of Olinville's licenses.
After the October 9, 2001 suspension, Olinville's
agent, Chambers, who was retained on October 22, sent a
the NYPD License Division.
Chambers
to
so testified that within
24 hours of being retained he had spoken with the NYPD License
Division and had been told about the specific security problems.
Under New York law, "knowledge acquired by an agent acting
within the scope
its agency is imputed to
if the information was never actual
principal, even
communicated."
N. Y.
Marine & Gen Ins. Co. v.Tradeline LLC, 266 F.3d 112, 122 (2d
Cir. 2001)
(citing Christopher S. v. Douglaston Club, 713
N.Y.S.2d 542, 543
(2d Dep't 2000)).
See also Mei
Grunberg, 651 F. Supp. 2d 98, 110 (S.D.N.Y. 2009)
Cromer Fin. Ltd. v. Be
-------~-----------------~--
v.
(quoting
, 245 F. Supp. 2d 552, 559 (S.D.N.Y.
2003)).
In accordance with this Court's October 26, 2010
Decision, as a matter of law Spinelli was not entitled to any
damages pre dating November 8 for the License Division's failure
to give Olinville a post-suspension opportunity to contest the
6
suspension.
Also as a matter of law, Spinelli is not entitled
to any emotional
stress damages for the NYPD's October 8, 2001
inspection of Olinville, or to the immediate suspension (without
providing Olinville an opportunity to be heard) of Olinville!s
licenses on October 9, 2001.
71.
IIi, 579 F.3d at 167 68, 170
~~-------
Spinelli does not take issue with the City's position at
trial that Olinville!s licenses would not have been reinstated
on November 8, 2001, or that the earliest date to recover any
damages was November 16, the day after the NYPD conducted an
inspection, and the day that the License Division determined
that Olinville!s licenses should be reinstated.
This leaves
only the period between November 16 and December 5, 2001.
The jury did not award damages for emotional distress
for the period between November 16 and December 5, 2001.
Dr.
Mohandoss, Spinelli's doctor, testified that in October 2001 he
made a house call to Spinelli because she was depressed.
While
Dr. Mohandoss gave her a sample of Paxil (enough medication to
last only a few days), he did not record
notes.
s visit in his chart
There is also no evidence that Dr. Mohandoss ever wrote
Spinelli a prescription for Paxil
(or any other anti-depressant)
or that he referred her to a psychiatrist.
Dr. Mohandoss's
contemporaneous chart note from his examination of Spinelli on
7
October 13, 2001 did not document any evidence of depression and
that chart note documents conditions that Spinelli had both
before the October 8 suspension and after the December 5 lifting
of the suspension.
Plaintiffs contend that these conditions,
such as hypertension, were aggravated by the emotional distress
purportedly suffered by Spinelli.
Evidence of such aggravation,
however, at best only exists for the October 13 visit, which
pre dates the compensable period (November 16 to December 5,
2001).
Spinelli saw Dr. Mohandoss only once during the
potentially compensable period, and that was for a boil on the
underarm.
Dr. Mohandoss testified that neither depression nor
high blood pressure would cause a boil.
The Plaintiffs have relied on Atkins v. New York Ci
143 F.3d 100 (2d Cir. 1998).
that if a
§
In Atkins, the court explained
1983 plaintiff cannot prove actual injury from a
violation of his constitutional rights, that plaintiff is only
entitled to nominal damages.
Id. at 103
Piphus, 435 U.S. 247, 248 (1978».
that
II
(citing
v.
The court further stated
[t]o recover compensatory damages plaintiff must prove
that his injuries were proximately caused by the constitutional
violation.
II
Cir. 1994».
rd.
(citing Qibeau v. Nellis, 18 F.3d 107, 110 (2d
Here, it was appropriate for the jury to award
8
nominal damages to Spinelli because Spinelli did not prove
actual injury proximately caused by the deprivation of her due
process rights.
If
Moreover, the Court in Atkins noted that
[w]here the evidence would permit the jury to find that, while
both justifiable and [unconstitutional conduct] was used,
[and]
the injury was caused by the use of the former, an award of
nominal damages [for the unconstitutional conduct] is proper."
rd.
(citing Gibeau, 18 F.3d at 110).
Here, even assuming
arguendo that Spinelli might have suffered some injury, any
injury that she might have suffered was a result of the
suspension of Olinville's licenses, which the Second Circuit
held to have been justifiable.
Moreover
I
the evidence indicates
that any emotional distress that Spinelli may have suffered was
in October 2001 1 well before the compensable period.
The Jury Award of Lost Profits to Olinville Was Not Inconsistent
with the Lack of an Award for Emotional Damages to Spinelli
Plaintiffs also contend that the jury's verdict
awarding $10 000 for lost profits to Olinville but nothing for
1
emotional distress to Spinelli was inconsistent.
When a court
is "confronted with a potentially inconsistent jury verdict
l
the
court must adopt a view of the easel if there is one, that
resolves any seeming inconsistency."
9
Turley v. Police Dep't. of
Ci
of New York, 167 F.3d 757,760
(2d Cir. 1999)
citations and quotation marks omitted).
(internal
The Supreme Court has
explained that focusing on "one possible view of the case which
will make the jury's finding inconsistent[,J
II
attempt to reconcile any apparent discrepanc
collision with the Seventh Amendment.
Stevedores
(1962)
v. Ellerman Lines
I
(internal
tations omitted).
while failing to
, "results in a
See Atlantic & Gulf
II
Ltd., 369 U.S. 355, 364
Therefore, courts cannot
disregard a jury's verdict and order a new trial until they have
"attempt [ed] to reconcile the jury's findings, by exegesis if
necessary.
120 (1963)
See Gallick v. B & 0 Railroad Co., 372 U.S. 108,
II
(internal citations omitted).
When a jury reaches a
verdict, after having been given proper instructions, that
verdict "must be upheld where there is a reasonable explanation"
for any seeming inconsistency.
Hallinan v. Republic Bank &
Trust Co., 519 F. Supp. 2d 340, 347 (S.D.N.Y. 2007)
(quoting The
ion of New York v. Pataki, 165 F. Supp. 2d 266,
281 (N.D.N.Y. 2001)).
Plaintiffs contend that, given the lost profits award,
Spinelli was
entitled to emotional distress damages.
PI. Affirm. in Supp. at 6 7 ("it is inevitable that a small
business owner [whose bus
ss is] shut down .
10
. will suffer
some emotional distress").
Contrary to Plaintiffs' assertion,
Olinville was not "shut down"; rather, while the licenses to
sell guns were suspended, Olinville was not prohibited from
selling its other products.
Moreover, to the extent that
Spinelli suffered any emotional distress before November 16,
2001, she was not entitled to any recovery for the reasons
stated above.
As noted above, Spinelli is not entitled to
damages for emotional distress caused by the "shut down" of her
gun business, but for the distress caused by aspects of that
"shut down" which violated her due process rights, which she has
not proven.
Plaintiffs have set forth no authority for the
proposition that Spinelli was ipso facto ent
led to emotional
distress damages given the lost profits award.
Plaintiffs have also relied on _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Crockett v.
lroad, 65 F.3d 274
_ _ _ __ _
Island
~L-
(2d Cir. 1995), to support the
contention that the jury's verdict cannot be rationally
reconciled.
In Crockett, the Court held that a new trial was
appropriate because the jury's verdict was "irreconcilably
inconsistent."
Crockett, 65 F.3d at 278.
The Court found that
because Crockett presented "uncontroverted testimony that the
surgery would be necessary when the pain increased,
the jury
could not logically award all costs for the surgery and no
11
damages for future pain and suffering."
Id.
Here, Spinelli
failed to meet her burden of proving that she suffered any
emotional distress as a result of Olinville!s license
suspension.
See Miner v. Ci
of Glen Falls, 999 F.2d 655, 663
------------~~----~---------
(2d Cir. 1993)
(to recover emotional distress damages, a
plaintiff must !!convince the trier of fact that he actually
suffered distress because of the denial of procedural due
process itself!!)
(quoting Carey, 435 U.S. at 263).
In Miner,
the Court cited ==~=-~. .~====~~~==~, 892 F.2d 1298, 1304-05
(7th Cir. 1990), with approval for its holding that pointing to
circumstances where emotional distress is likely is insufficient
to establish that distress.
999 F.2d at 663.
Courts will not
"invalidate a judgment entered on the basis of a facially valid
and proper jury verdict and require a costly and wasteful
retrial merely because of a speculative possibility that
facially consistent jury findings might have represented an
inconsistency."
2009).
Aczel v.
~abonia,
_S_e_e____ Atlantic & Gulf
so_
584 F.3d 52, 59 (2d
St~vedores,
r.
369 U.S. at 364
(!!Where there is a view of the case that makes the jury's
answers to speci
interrogatories consistent, they must be
resolved that way,!!).
The Jury Instructions and the Special Verdict Form Do Not
Require A New Trial
12
Plaintiffs also contend that the jury instructions
pertinent to Spinelli's claim were inconsistent with the Special
Verdict Form "which may have confused the jury" and that the
Special Verdict Form should have specifically identified the
emotional distress damages that Spinelli sought.
Supp. at 8-9.
Pl. Aff. in
While Plaintiffs proffered their own special
verdict form during the charging conference, the Plaintiffs
failed to object when that form was rejected.
Moreover,
thereafter the Plaintiffs never objected to the use of the
Special Verdict Form used by the jury.
Plaintiffs' failure to object waived their argument.
Fed. R. Civ. P. 51(c) (1) mandates that parties who wish to
object to a Court's jury instruction or verdict sheet Ifmust do
so on the record, stating distinctly the matter objected to and
the grounds for the objection."
Moreover,
"to avail itself of
relief under this Rule, a party must object before the jury
retires to deliberate."
56 {2d
r. 2002}.
Jarvis v. Ford Motor Co., 283 F.3d 33,
The Second Circuit has "emphasized that
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."
rd. at 57 {quoting Lavoie v. Pac.
13
shear Co., 975 F. 2d 48, 55 (2d Cir. 1992))
(internal alterations
and quotation marks omitted) .
In the absence of a party's timely objection, a
Court's review is limited to the determination of whether the
jury instruction or verdict sheet contained a fundamental error.
rd. at 62.
A fundamental error is an error "so serious and
flagrant that it goes to the very integrity of the trial" and
includes an error which "deprive[s] the jury of adequate legal
guidance to reach a rational decision."
Hous
rd.
Auth. of New Haven, 251 F.3d 307, 313
v. Collectors' Guild
r. 1991»).
(quoting Shade v.
(2d Cir. 2001)
i
Ltd., 930 F.2d 1021, 1026 (2d
An "[o]bjection to an inconsistency between two
general verdicts that is traced to an alleged error in the jury
instruction or verdict sheet is properly made under Fed. R. Civ.
P. 51."
rd. at 56.
The Court in its jury charge specifically identified
the elements that Plaintiffs must establish to recover emotional
distress damages and elsewhere in the jury instructions noted
several times that Plaintiffs sought emotional distress damages
on behalf of Spinelli.
The openings, the testimony and the
closings focused on Spinelli's claim of emotional distress
14
damages.
The fact that the special verdict form did not
explicitly include the word Ilemotional distress ll does not
provide grounds for retrial.
The Plaintiffs also contend that the special verdict
form should have listed the same requirements for emotional
distress that were listed in the jury charge.
Since Plaintif
never raised this issue at the charging conference, it is
waived.
See
~S~m~i~tc~h~v~.-=~=~-=-=~_B~o~l_t-=P~r~_o~d~s~.,
(2d Cir. 1988)
(obj ections to the
1/
861 F.2d 363, 370
form or substance of such
questions tl are waived unless the party objects prior to the jury
retiring)
(citing
Processors
Inc., 715 F.2d 703, 710 n. 8 (2d Cir. 1983)).
Moreover, it is
within the trial court's discretion to determine the appropriate
language for and formulation of questions that are provided to
the jury on the verdict form.
Id.
(citing Cann v. Ford Motor
Co., 658 F.2d 54, 58 (2d Cir. 1981), cert. denied, 456 U.S. 960
(1982)).
See also Shcherbakovskiy v. Da Capo Al
F.3d 130, 141 (2d Cir. 2007)
F.3d 457, 465
Fi~e,
Ltd., 490
(quoting Vichare v. AMBAC Inc., 106
(2d Cir. 1996)) i __~_~v . __
__ L_O~E~B~_~P~a~r~t~n~e~r~s-=~~~., No.
00 Civ. 7052, 2000 U.S. App. LEXIS 26617, at *4 (2d Cir. Oct.
19, 2000)
(citing Smith, 861 F.2d at 370-71).
15
The Special Verdict Form and the jury charge were not
inconsistent.
The Special Verdict Form asked about the damages
allegedly suffered by Spinelli:
loss of reputation.
both for emotional distress and
Had the emotional distress language been
added to the Special Verdict Form it would have omitted the loss
of reputation component of damages that Spinelli sought.
While
the Special Verdict Form did not repeat verbatim the elements
Spinelli needed to prove to recover emotional distress damages,
the form was not inconsistent with the jury charge since it
asked what damages (collectively the emotional distress and any
loss of reputation damages) Spinelli had suffered.
What
comprised those damages had already been explained in the jury
charge and made clear during the trial.
Plaintiffs also argue that the court erred when it
instructed the jury that Plaintiffs must establish that
Spinelli's emotional distress was due to a loss of reputation
caused by the License Division's failure to provide adequate
notice and an adequate post-suspension hearing.
During the charging conference, the Plaintiffs
initially took issue with the court's proposed charge that
Spinelli must prove loss of reputation.
16
Following a lengthy
discussion among counsel and the Court (see Def. Ex. 10, at 328
332), the following was stated:
Mr. Muschenheim [Defendants' counsel]:
If [Spinelli]
does not have a claim, then she has to prove at least
a harm to reputation.
The Court:
Well, that's the issue.
Mr. Zelman [Plaintiffs' counsel]: Judge, why don't we
do this.
I don't want to revisit the whole issue.
I
don't consent, but if you want to leave it the way it
is, you could leave it the way it is.
The Court: Well, you were the one that raised the
issue.
If you don't want it, [great], next ...
Def. Ex. 10, at 332.
Moreover, at the conclusion of the
charging conference, the Court stated the following:
The Court:
... I'll report - no, I don't have to
now. You withdrew the objection. We're ready to
go.
Def. Ex. 10, at 337.
Plaintiffs did not take issue with the
Court's conclusion, and thereafter never objected to the jury
charge given by the Court.
argument.
Plaintiffs thus waived this
See Jarvis, 283 F.3d at 57.
17
Finally! it was necessary that an element of
Spinelli's emotional distress c
harm to reputation since
im
reputation is arguably a property interest.
10, at 329 (The Court:
See!
Def. Ex.
"the loss of reputation is a property
interest which gives her standing")
i
cf. November 8, 2010
Decision! at 3 (IiSpinelli may recover for emotional damages if
she establishes [emotional damages] ... (3) through loss of
business relationships . . . . ").
Otherwise! Spinelli would be
seeking emotional distress damages for a violation of due
process that was unrelated to her - as opposed to Olinville's
liberty or property interest (i.e.! her reputation).
See Board
of Regents, 408 U.S. at 569-70 (threshold question is whether a
liberty or property interest is subject to due process
protection) .
Plaintiffs' reliance on Ellis v. Blum! 643 F.2d 68 (2d
Cir. 1981) and Miner, 999 F.2d 655, is misplaced.
In both
cases! the plaintiff sought damages for emotional distress
resulting from the
fendants' violation of the plaintiff's
individual due process rights:
in Ellis! her continued right to
social security benefits, 643 F.2d at 71, and in Miner, his
right to continued employment by the defendant city, 999 F.2d at
656.
Importantly, in Miner, the court emphasized that, prior to
18
being awarded damages, the trier of fact must be convinced that
the plaintiff actually suffered emotional distress.
663.
999 F.2d at
Here, Spinelli received only nominal damages because she
simply failed to demonstrate to the jury that she suffered any
actual compensable distress.
Moreover, Plaintiffs' continued
reliance on Sorranno's Gasco
Inc. v.
, 874 F.2d 1310 (9th
Cir. 1989), to argue that Spinelli may assert a claim for
the license suspension that
emotional distress as a result
violated Olinville's property interest, is unavailing.
Unlike
the shareholders in Sorranno's Gasco, Spinelli is not asserting
First Amendment or retaliation claims, which provided direct and
independent claims for damages that were separate and distinct
from the corporate entity's due process claims.
1318 19.
See Id. at
See also Robinson v. Davis, No. 07 Civ. 265, 2010 U.S.
Dist. Lexis 110147, at *6-7 (D. Vt. Oct. 15, 2010)
(non-profit
president's First Amendment retaliation claim was separate and
distinct from corporate entity's constitutional claims) .
Plaintiffs also attempt to argue that Spinelli was the
licensee, and thus did not have to establish harm to reputation.
Plaintiffs rely on the archaic Principal Agent definition in the
rifle and shotgun dealer section of the Rules of the City of New
York ("RCNY").
To start, Plaintiffs never proffered any
19
evidence that shows that Spinelli ever obtained a Principal
Agent license, or even ever applied for such a license.
Such a
failure is not surprising, given the testimony of the Director
of the
cense Division, Tom Prasso:
Q:
. are you aware of anyone who has ever been
issued a principal agent license by the license
division?
A:
No, I'm not.
Def. Ex. 10, at 281.
Moreover, Plaintiffs' reliance on the
Principal Agent definition is misplaced.
The definition of
fIe and shotgun dealer provides:
Dealer in rifles and shotguns. The term "dealer in
rifles and shotguns" shall mean any person, firm,
partnership, corporation or company who engages in the
business of purchasing, selling, keeping for sale,
loaning, leasing, or in any manner disposing of any
rifle or shotgun. Dealer in rifles and shotguns shall
not include a wholesale dealer.
38 RCNY
§
1 02.
And the definition of "Principal Agent"
provides:
Principal agent. The term "principal agent" refers to
the person who is in active charge of the dealership.
Dealer's licenses are issued to individuals. Every
premises in which rifles and shotguns are sold
requires an individual dealer's license. Thus if a
company owns several stores each store would require
its own individual dealer's license and the manager of
the store would normally be considered the principal
20
agent.
Individual owners of stores who do not
actively participate in the operation of their store
may designate a responsible person as the "principal
agent."
38 RCNY
§
1-02.
Under the foregoing provisions the principal
agent is merely the point person ("the person who is in active
charge") of the store that sells rif
s and shotguns, and these
provisions do not create a property interest separate and
distinct from Olinville's, which is the licensed dealer in
ri
es and shotguns.
Evidence of the Working Conditions at the License Division Was
Not Prejudicial
plaintiffs also argue that the Court erred when it
permitted License Division Director Prasso to testify about the
working conditions at the License Division following the
September 11, 2001 terrorist attacks.
this testimony was both
in Supp. at 12-13.
Plaintiffs contend that
levant and prejudici
. Affirm.
Director Prasso's testimony (which all
together takes up 23 pages of the transcript) on this subject
was limited to responding to one question.
Moreover, neither
Director Prasso's response to that one question nor his other
testimony attempted to rely on the post-September 11th
conditions to limit the Ci
IS
liability for damages; rather,
21
the response to that one question provided background for the
period at issue in this lawsuit.
The response to this one
question did not unfairly prejudice the jury.
Plaintif
also argue that Director Prasso's testimony
was irrelevant, and that it may have confused the jury since the
jury "may have understood from the introduction
this
evidence, that the Defendants was [sic] not responsible for some
portion of the Plaintiffs' actual damages because of the
difficulties it was having at the time.!!
at 13.
Pl. Affirm. in SUpp.
Plaintiffs' argument ignores the fact that during both
the opening and closing the City specifically conceded that it
was responsible for damages from November 16 to December 5,
2001, and more importantly, that the Court's instruction to the
jury similarly stated as much.
Conclusion
For the foregoing reasons, Plaintiffs' motion for a
new trial is denied.
New York, NY
July
f
2011
II
ROBERT W. SWEET
U.S.D.J.
22
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