Airday v. The City Of New York , et al

Filing 232

ORDER: IT IS HEREBY ORDERED that not later than Friday, May 28, 2021, at 12:00 p.m., both parties must submit a letter not to exceed three double-spaced pages explaining their position on this issue. Plaintiff must specifically address its change of position from the first trial in this action to the present trial. Defendants must specifically address whether they failed to object to Plaintiff's proposals because they have abandoned Second Circuit precedent as set out in Jeffes and progeny or whether they are simply indifferent to whether the jury is correctly charged on this issue. And as set forth herein. SO ORDERED. (Signed by Judge Valerie E. Caproni on 5/27/2021) (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------------- X
GEORGE AIRDAY,
:
:
Plaintiff,
:
:
-against:
:
:
THE CITY OF NEW YORK and KEITH
:
SCHWAM,
:
:
Defendants. :
-------------------------------------------------------------- X
VALERIE CAPRONI, United States District Judge:

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #:
DATE FILED: 5/27/2021

14-CV-8065 (VEC)
ORDER

WHEREAS the parties submitted Joint Proposed Jury Instructions (Dkt. 210) and
Proposed Verdict Sheets (Dkt. 212) in advance of trial;
WHEREAS Plaintiff’s proposal for jury instructions on Municipal Liability would have
the Court instruct the jury that it must determine whether Defendant Schwam was a final
policymaking authority, see Dkt. 210 at 43;
WHEREAS Plaintiff’s proposed verdict sheet similarly suggests that the Court direct the
jury to determine for itself whether Mr. Schwam was a final policymaking authority, see Dkt.
212 at 2;
WHEREAS binding Supreme Court precedent holds that “[w]hether the official in
question possessed final policymaking authority is a legal question,” and that “[t]he matter of
whether the official is a final policymaker under state law is to be resolved by the trial judge
before the case is submitted to the jury,” Jeffes v. Barnes, 208 F.3d 49, 57 (2d Cir. 2000) (citing
Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989));
WHEREAS Defendants did not object to either Plaintiff’s proposed jury instruction on
Municipal Liability or Plaintiff’s proposed verdict sheet; and

Page 1 of 2

WHEREAS in briefing submitted prior to the first trial in this case, Plaintiff cited Jeffes
and argued that “[i]t is the role of the courts, not the jury, to determine whether the official in
question had final policymaking authority in the particular area involved,” Dkt. 137 at 5;
IT IS HEREBY ORDERED that not later than Friday, May 28, 2021, at 12:00 p.m.,
both parties must submit a letter not to exceed three double-spaced pages explaining their
position on this issue. Plaintiff must specifically address its change of position from the first trial
in this action to the present trial. Defendants must specifically address whether they failed to
object to Plaintiff’s proposals because they have abandoned Second Circuit precedent as set out
in Jeffes and progeny or whether they are simply indifferent to whether the jury is correctly
charged on this issue.

SO ORDERED.
Date: May 27, 2021
New York, NY

____________________________
_
_________________________________
VALERIE CAPRONI
CAPRONI
N
United States District Judge

Page 2 of 2