Airday v. The City Of New York , et al

Filing 121

OPINION re: 94 MOTION in Limine; 101 SUPPLEMENTAL MOTION in Limine; 99 SUPPLEMENTAL MOTION in Limine: For the foregoing reasons, Plaintiff's motion in limine is granted; Defendant's motions in limine are denied. (Signed by Judge Robert W. Sweet on 11/30/2018) (jwh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------x

GEORGE AIRDAY,
Plaintiff,
-againstTHE CITY OF NEW YORK, KEITH SCHWAM,
and DAVID M. FRANKEL,
Defendants.
-------------------------------------x

APPEARANCES:

Attorneys for George Airday
LAW OFFICE OF NATHANIEL B. SMITH
100 Wall Street, 23rd Floor
New York, NY 10005
By:
Nathaniel B. Smith, Esq.

Attorneys for Defendants
ZACHARY W. CARTER
Corporation Counsel o f the
City of New York
100 Church Street, Ro om 2-117
New York, NY 10007
By: Garrett S. Kamen
William A. Grey
Christopher A. Seacord
Don H. Nguyen
Jeremy L. Jorgensen

14 Civ. 8065
OPINION

Sweet, D.J.

Plaintiff George Airday ("Airday") has moved in limine
to exclude the facts underlying his December 11, 2011 arrest.

Defendants the City of New York ("the City"), Keith
Schwam ("Schwam"), and David Frankel ("Frankel")

(collectively,

the "Defendants") have moved in limine (1) to exclude testimony
that Plaintiff's damages exceed a nominal amount;

(2) to exclude

evidence about misconduct by comparators that allegedly o ccurred
before January 1, 2002; and (3) to exclude evidence that
Defendants violated Plaintiff's due process rights under the
Fourteenth Amendment by removing him from office without notice
in December 2013.

Based on the facts and conclusions set forth below,
the Plaintiff's motion is granted, and the Defendants' motions
are denied.

I.

Prior Proceedings

On October 7, 2 014, Plaintiff filed a complaint
against Defendants, alleging violations of 42 U.S.C. §§ 1983 and
1988, as well as the First, Fifth and Fourteenth Amendments of
1

the United States Constitution. Specifically, Plaintiff alleged
that Defendants (1) retaliated against him in v i o lation of his
First Amendment right of free speech;

(2) violated his

Fourteenth Amendment procedural and substantive due process
rights; and (3) vio lated his Fourteent h Amendment right to equal
protection. Plaintiff filed an amended complaint on October 8 ,
20 15. ECF No. 34. On January 10, 2018 , Defendants filed their
motion for summary judgment, ECF No. 74, which this Court
granted in part and denied in part, ECF No. 92.

The present motions in limine were filed by Plaintiff
on August 28 , 20 18, and by Defendants on August 27 , 2018 . All
motions in limine were heard and marked fully submitted on
September 26 , 2018 .

Trial is scheduled to begin on December 17, 2018.

II.

The Facts

On January 24 , 1984, Plaintiff was appointed to a
five-year term as a New York City Marshal ("City Marshalu). See
Airday Dep. Tr. at 17:04-05, 20 : 22 - 25 . On January 22, 2009,
Plaintiff was re-appointed by Mayor Michael Bloomberg for a

2

five-year term expiring on December 20, 2013. See Kamen Deel.
Ex. A, ECF No.

97.

In December 2011, Plaintiff was arrested and charged
with assault in the third degree, menacing in the third degree,
and harassment in the second degree following an incident with
his girlfriend. See Kamen Deel. Ex. L., ECF No. 77-2, at 121.
Schwam was informed of this arrest, but took no disciplinary
action against Airday at that time.

See Schwam Dep. Tr. at

71:1 2 -85:10. Then, in January 2012,

Plaintiff was arrested for

unlawful possession of a firearm and violation of a temporary
order of protection that was put in place after his December
2011 arrest.

See Kamen Deel. Ex. L, ECF No. 77-2, at 122. Citing

this arrest, Schwam informed Airday that the Department of
Investigation would seek his removal and immediate suspension
unless he first offered to resign.

See Pl.'s Br. Ex. 1, ECF No.

100-1. On June 11, 2012, Plaintiff was suspended from serving as
a City Marshal. See Kamen Deel. Ex. W., ECF No. 77-2, at 195-97.
On June 11, 2013, Plaintiff's suspension was lifted.

See Tang-

Alejandro Dep. Tr. at 61:23-62:10.

Later that year, Schwam recommended to the Office of
the Mayor that Airday be replaced by a new City Marshal upon
expiration of Airday's term on December 20, 2013. See Schwam
3

Dep. Tr. at 65:03-67:17. Schwam testified that this decision was
based on information revealed by Airday's January 2012 arrest,
namely,

(1) Airday's possession of an unregistered firearm; and

(2) Airday's possession of firearms in violation of the court
order that resulted from the December 2011 arrest. See id. at
69 :11-7 0 :11. Schwam further testified that the City Marshal
position involves "very serious responsibilities" that "call for
uncompromised integrity [and] mature judgment," as well as
"scrupulous adherence to rules, laws and court orders." Id. at
70:13-70:24.

On December 23 , 2013, Plaintiff was notified that his
term of office had expired, and that his successor had been
appointed to that office pursuant to Section 1601 of the New
York City Civil Court Act. See Defs.' Reply Br. Ex. C, ECF No.
111. Airday contends that this action violated his procedural
due process rights because Defendants departed from the longestablished practice of continuing the offices of City Marshals
after the expiration of their five - year terms. AC 11 89, 108-10.
In addition, Plaintiff claims that Defendants violated his equal
protection rights because other City Marshals, who were accused
of more serious misconduct, were not similarly disciplined. See
AC 11 53-57 , 120-22.

4

III. Plaintiff's Motion to Exclude Evidence Regarding the Facts
Underlying His December 21, 2011 Arrest

Pursuant to Rules 401(b),

403 and 608 of the Federal

Rules of Evidence, Plaintiff has moved to exclude evidence
pertaining to the facts giving rise to his arrest on December
21, 2011 arrest.

Specifically, Plaintiff seeks to exclude the following
facts:

1. That the criminal complaint relating to Airday's
December 21, 2011 arrest charged that Airday
"'shoved' his fianc~e to the ground, 'struck her
several times in the face with an open hand,' []
threatened to 'kill' her, and.
. that
[P]laintiff's actions caused his fiancee to sustain
'bruising and swelling to her l ower back and face
and experienced annoyance, alarm and fear for her
physical safety.'" See Pl.'s Br., ECF No. 100, at 23.
2. That on "January 10, 2012, the Bronx Distr i ct
Attorney's Office notified the Department of
Investigations that the 'injuries [allegedl y caused
by Plaintiff to the complainant [were] more severe
than originally believed and that she had some
broken ribs.'" See id. at 3 .

Evidence is relevant if it has "an y tendency to make a
[material] fact more or less probable than it would be without
the evidence." United States v. White,
Cir . 2012), as amended (Sept. 28, 2012)
5

692 F.3d 235 , 246

(2d

(quoting Fed. R. Evict.

401). "A material fact is one that would affect the outcome of
the suit under the governing law . " Arlia v . Lively, 474 F . 3d 46,
52 ( 2d Cir. 2007)

(citation omitted) . Unless an exception

applies, all relevant evidence is admissible. Fed. R. Evid. 402.
One such exception is the rule that relevant e v idence may be
excluded if its probative value is substantially outweighed by a
danger of unfair prejudice , confusing the issues, misleading the
jury, undue delay, wasting time, or needlessly presenting
cumulative evidence . Fed . R. Evid . 403. Further, while the
standard for relevance is "very low," United States v . AlMoayad,

545 F.3d 139, 176 (2d Cir. 2008), courts have "broad

discretion to balance probative value against possible
prejudice," United States v. Bermudez, 529 F.3d 158, 161 (2d
Cir. 2008).

Here , the details of the domestic violence incident
meet the relevance standard . Schwam testified that he
rec ommended appointing a new City Marshal upon termination of
Airday ' s term in 2013 because of the "conduct and judgment that
was exposed in the aftermath of [Airday's] two arrests in
December 2011 and January 2012." See Schwam Dep . Tr. at 69:06 69:10 . This consideration could have included the facts
underlying the arrests. The details of the domestic violence
incident , as described above, are thus relevant in light of
6

Plaintiff's claim that Schwam did not take comparable action
with respect to other City Marshals who engaged in similar
conduct .

Still, the probative va lue of these facts is limited.
Schwam testified that he did not take disciplinary action
against Airday immediately after learning of the December 2011
arrest, but rather waited until after the January 2012 arrest.
Id. at 85:04-10. To be sure, Schwam's testimony referenced

Airday's December 2011 arrest in explaining his decisionmaking.
See id. at 70:25-71:07

("[T]he fact that the [M]arshal having

been arrested once failed to do the things that were required of
him.

. and that he had not done those things

. said to me

that we need t o replace Marshal Airday."). But Plaintiff does
not seek to exclude the ultimate fact of the December 2011
arrest -- merely the specific details, described above,
underlying that arrest. Schwam never testified that these
details had any impact on his recommendation as to Plaintiff's
reappointment. See id. at 68 : 24 -71:11.

Accordingly, Plaintiff's motion to exclude evidence
regarding the facts underlying his December 2011 arrest is
granted.

7

IV.

Defendants' Motion to Exclude Testimony About Alleged
Comparators

Defendants have moved to exclude evidence about acts
of misconduct by comparators that allegedly occurred before
January 1, 2002, the day on which former Mayor Bloomberg assumed
office.

Plaintiff has raised a selective treatment claim based
on allegations that he was treated differently than similarly
situated City Marshals who also engaged in misconduct. A
selective treatment claim requires that comparators and the
Plaintiff be "similarly situated in all material aspects,"
including that the Plaintiff and those he maintains were
similarly situated "were subject to the same workplace
standards." Graham v. Long Island R.R., 230 F.3d 34, 40

(2d Cir.

2000) .

Defendants contend that limiting the scope of
comparator evidence to Mayor Bloomberg's administration is
reasonable because "compar[ing] workplace standards across
administrations would be akin to comparing apples and oranges."
Defs.' Br., ECF No. 95, at 4. However, the crux of Plaintiff's

8

selective treatment claim is that Schwam-- not Mayor Bloomberg -was the effective decisionmaker and thus the relevant actor.

Accordingly , Defendants' motion to limit evidence of
comparators before January 1, 2002 is den i ed. Pla i ntiff may
present evidence of comparators during Schwam ' s tenure as
Director of the Marshal's Bureau .

V.

Defendants' Motion to Exclude Testimony Regarding A
Violation of Plaintiff ' s Due Process Rights

Defendants have moved to preclude Plaintiff from
offering evidence that Defendants violated his due process
rights by remov i ng him from office without notice in December
2013.

Defendants contend that the availability of an
adequate post-deprivation procedure for reviewing the propriety
of the dismissa l , namely an Artic l e 78 proceeding , forecloses
any viable due process claim.

However , the law in this Circuit makes c l ear that a
state or local government satisfies procedural due process
requirements by providing a meaningful post-deprivation remedy
9

VI.

Defendants' Motion to Exclude Evidence of Compensatory
Damages

Defendants have moved to exclude testimony from
Plaintiff showing that his damages exceed a nominal amount.

According to Defendants, Plaintiff cannot prove that
he suffered actual injury from his termination because
Plaintiff's term as the City Marshal had a known expiration date
of December 20 , 2013 , and Mayor Bloomberg exercised his legal
authority to appoint a new City Marshal to that position once
Plaintiff's term expired. Defs.' Br., ECF No. 95 , at 2-3 .
Plaintiff, however, alleges that there was an estab lished
practice of holding over City Marshals for reappointment
following the expiration of their statutory term, and that he
suffered actual harm in the form of lost income as a result of
Schwam's unilateral removal of Airday from office without notice
or an opportunity to be heard. Pl.'s Opp. Br., ECF No. 108, at
1-2, n.1.

If Plaintiff is able to establish at trial that
Defendants deprived him of his property interest in his
employment without due process of law, he would be entitled to
nominal damages based on the deprivation itself, and may, i n
11

addition, be entitled to collect compensatory damages if he can
prove that he suffered actual injury as a result of the denial
of due process. Patterson v. City of Utica,
(2d Cir. 2004)

370 F.3d 322, 337

(citing Carey v . Piphus, 435 U.S. 247, 266

( 1 978)) .

In light of this, Defendants' motion to exclude
evidence of compensatory damages is denied.

VII. Conclusion

For the foregoing reasons, Plaintiff's motion in
limine is granted; Defendant's motions in limine are denied.

It is so ordered.

New York, NY
November :X,, 2018

U.S.D.J.

12