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holding that a verdict was not tainted by an allegedly improper summation when the defendants did not make a contemporaneous objection unless there was "flagrant abuse"
Summary of this case from Malmsteen v. Berdon, LLPOpinion
01 Civ. 10137 (LAK)
December 3, 2003
Barry S. Gedan, for Plaintiffs
Dana Biberman, Kerri A. Devine, MICHAEL A. CARDOZO, for Municipal Defendants
MEMORANDUM OPINION
Plaintiffs, one of which owned the Thunderbolt roller coaster on Coney Island, brought this action against the City of New York and various officials of its Departments of Buildings ("DOB") and of Housing, Preservation and Development ("HPD") claiming that the City wrongfully demolished the roller coaster. Many of the claims were disposed of on pretrial motions, one of which resulted in an extensive opinion, familiarity with which is assumed. The issues of liability and damages were severed, and the liability phase was tried to a jury on claims of common law trespass and violations of the rights of plaintiff Wantanabe Realty Corp. ("Wantanabe") to substantive due process of law under the federal and state constitutions. The jury returned a special verdict which, in relevant part and broadly described, found that (1) Tarik Zeid, Brooklyn borough commissioner of the DOB, violated Wantanabe's substantive due process rights by issuing an emergency declaration that led to the demolition with deliberate indifference to whether his action in so doing created a substantial risk that the roller coaster would be demolished without regard to whether demolition was necessary to protect the public, and (2) Frank G. Marchiano, DOB assistant commissioner for operations, Vito Mustaciuolo, associate commissioner of HPD for enforcement services, and, by necessary extension, the City were liable on the theory that the demolition was an unjustified trespass and that the individuals in essence were aiders and abettors. The City, Zeid, Marchiano and Mustaciuolo now move for judgment as a matter of law or, in the alternative, for a new trial. They seek also a determination that plaintiff may not recover punitive damages as a matter of law.
Wantanabe Realty Corp. v. City of New York, ___ F. Supp.2d ___, No. 01 Civ. 10137 (LAK), 2003 WL 21543841 (S.D.N.Y. July 10, 2003, as corrected July 14, 2003).
I The Motion for Judgment as a Matter of Law
A. Substantive Due Process
The essence of plaintiff's substantive due process claim was that Zeid issued the emergency declaration on the basis of the report of a building inspector whom he knew was not qualified to judge the structural soundness of the roller coaster. As noted, the jury accepted that argument and found, in its response to Question 1 on the verdict form, that he issued the emergency declaration with deliberate indifference to whether its issuance created a substantial risk that the roller coaster would be demolished unjustifiably. Defendants, however, seek judgment as a matter of law dismissing the substantive due process claim against Zeid on the merits and on the ground of qualified immunity. They argue that (a) Zeid had a rational basis for issuing the emergency declaration in that he reasonably relied on Padmore and, in any event, that the issuance of the emergency declaration did not create a substantial risk of unjustified demolition in light of the regular practice of notifying the owner of property subject to such a declaration and affording the owner an opportunity to demonstrate the absence of any condition warranting demolition, (b) Zeid's conduct was not outrageously arbitrary or conscience-shocking even if the jury was justified in answering Question 1 as it did, and (c) Zeid is entitled to qualified immunity.
Joint Pretrial Order ("PTO") (DI 75) § IV.A (Plaintiffs' Contentions), ¶¶ 27-33; id. § V (Plaintiffs' Statement of Issues to be Tried) ¶¶ 1-3, 7; Tr. 63-67 (opening statement); id. 780-82, 792-93, 796-99 (closing argument) ("outrageous and shocking conduct of Mr. Zeid in issuing a declaration without cause and circling demolition and crossing out repair and knowing the risk that would cause demolition down the line . . .").
Zeid did not seek judgment as a matter of law at the close of the proof on grounds (b) and (c). He therefore may not be heard to advance those contentions as a basis for dispositive relief He did, however, preserve the contentions set forth in (a).
Tr. 704 line 23/713 line 3.
Metromedia Co. v. Fugazy, 983 F.2d 350, 362 (2d Cir. 1992), cert. denied, 508 U.S. 952 (1993); 9A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE: CIVIL 2D § 2537, at 344-45(1995) ("WRIGHT MILLER").
Insofar as Zeid argues that the jury was not justified in regarding his reliance on Padmore's report as not merely ill-advised but outrageously arbitrary, his position is indefensible. The jury was entitled to credit Zeid's quite damning deposition testimony, in which he admitted his awareness that Padmore was unqualified to judge the structural soundness of the roller coaster, and to reject his effort at trial to justify his reliance on Padmore's report. His fallback position, however, is more substantial
The testimony is summarized at 2003 WL 21543841, at *5-*6.
As the opinion on the summary judgment motions made clear, it has been undisputed that DOB Operations Policy and Procedure Notice #16/93 (the "OPPN"), which the DOB follows with respect to dangerous structures, provides for the issuance of emergency and immediate emergency declarations and requires the sending of a notice to the owner of an affected property. The Court determined also that such notices "automatically" are sent to owners of property subject to an emergency declaration.
Id., at *2-*3.
Id. at *6 n. 65.
Plaintiff offered the OPPN in support of its unsuccessful summary judgment motion. Exhibits to plaintiffs' motion for summary judgment, Ex. 25; see also PI. 56.1 St. (DI43) ¶ 35 (authenticating exhibit). Indeed, one of its principal arguments was that the DOB's use of the OPPN rather than the unsafe buildings procedure set out in the New York City Administrative Code was unlawful. Moreover, in plaintiffs Rule 56.1 Statement in opposition to defendants' motion for summary judgment, plaintiff admitted that a notification letter was sent to the entity believed to be the owner of the property, PI. Opp. 56.1 St. (DI55) ¶ 36, and then elaborated on this in the pretrial order, where it stipulated that a form letter notifying the owner was sent, albeit to an incorrect addressee, on September 1, 2000, following the issuance of the emergency declaration (PTO § III (Stipulated Facts) ¶¶ 115, 118). It further contended that, upon discovery of the error in the owner's identity, a corrected letter was prepared and addressed to the plaintiff but that the street address was incorrect in that one numeral was dropped. Id. ¶¶ 130-33. While plaintiffs Rule 56.1 Statement on defendants' summary judgment motion declined to admit that the corrected letter, which was DX V in evidence at trial, was sent, it did not dispute the existence of the general practice.
The evidence at trial was to the same effect, viz. that the issuance of an emergency declaration was only the first step in a process that ultimately could lead to demolition. Zeid testified, without contradiction or impeachment on this point, that a copy of the emergency declaration ordinarily was sent to the owner with a letter demanding that the owner repair or demolish the structure in question, which in turn gave the owner an opportunity to approach the DOB and to demonstrate that the structure was safe. This was supported in part by DX V, a copy of the letter sent to the owner of the structure here at issue, which according to Zeid was "a standard letter that goes out from the construction division." It was supported also by the testimony of Messrs. Mineo, Marchiano and Mustaciuolo, all current or former employees of the DOB or HPD. Mustaciuolo testified that, after receiving an emergency declaration from DOB, HPD would "attempt to contact the owner of the property with the intent to try to get compliance." McCardle referred to staff members at HPD gathering information on owners of the property so that the department could send them letters. He testified also that the general procedure of notifying the owner of the property was followed in this specific situation and that the letter was re-sent once the department found out that it initially had identified the owner incorrectly. Mineo, a former acting chief inspector of the DOB, testified that some boroughs, including Brooklyn, included copies of these form letters in the packets of information sent to DOB headquarters along with copies of emergency declarations.
Tr. 517 line 18/521 line 23.
Id. at 521 lines 20-21.
Id. at 626.
Id. at 587.
Id. at 590.
Id. at 437-38, 445-46.
The evidence that the standard DOB practice following the issuance of an emergency declaration was to notify the owner and thus to afford the owner an opportunity to dispute the existence of any condition requiring demolition or repair, if appropriately considered on this motion, would put Zeid's actions in an entirely different light. Assuming, as the Court must, that he issued the emergency declaration on the basis of an inspection report by an individual whom he thought unqualified, the risk that this would lead to an unjustified demolition nevertheless was quite limited in light of the regular practice of notifying the owner of the issuance of the declaration well in advance of demolition. Any reasonable property owner who received such a notice and who disagreed with the DOB's declaration would be expected to dispute the declaration rather than have its property demolished. The only material risk of an unjustified demolition would arise from a failure by the property owner to receive or read the notice. While such a failure in fact occurred here as a result of two errors — the initial the misidentification of the property owner and, when that error was discovered, the typographical error in plaintiffs address — there was no evidence from which the jury reasonably might have concluded that Zeid did not expect that the owner would be notified in accordance with regular practice.
The Court determined that the plaintiff, in order to prevail on the substantive due process claim, would have to prove, in the words of Question 1, that "Zeid issued the Emergency Declaration with deliberate indifference to whether the issuance of the Declaration created a substantial risk that the roller coaster would be demolished without regard to whether demolition was necessary to protect the public." Plaintiff's counsel stated that he had no objection to that formulation. He raised no relevant objection to the jury instruction on this point. In consequence, the evidence that there was a regular DOB practice of notifying owners of property subject to emergency declarations well in advance of any demolition by the City, if properly considered, would undermine completely the jury's finding with respect to Question 1: even if Zeid knew that there was little or no basis for concluding that there actually was an unsafe condition, the process of owner notification and response meant that the roller coaster would be torn down without regard to whether it really was a safety hazard only in the unlikely event that the notice was not actually sent, received and read. So the question whether this evidence is properly considered is determinative of the outcome of Zeid's motion.
Tr. 714 lines 20-25.
The Court notes that the remarks attributed to plaintiffs counsel at Tr. 713, lines 17-22, as the context reflects, in fact were made by defendants' counsel.
Id. 735 line 18/737 line 7.
Plaintiffs only objection to this portion of the charge related to his contention that the knowledge essential to a finding of deliberate indifference could be constructive as well as actual. That objection was overruled but has no bearing on the present issue.
In passing on a motion for judgment as a matter of law, whether at the close of the evidence or after verdict, "the court should review the record as a whole . . . and disregard all evidence favorable to the moving party that the jury is not required to believe." In other words, it must credit the evidence favoring the non-moving party and "that `evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses.'" The ultimate question is "whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented." "[T]here must be evidence on which the jury could reasonably find for the plaintiff."
9A WRIGHT MILLER § 2537, at 347.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 151 (2000).
Id. (quoting 9A WRIGHT MILLER at 300).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
Id.
In this case, Zeid was an interested witness, but the plaintiff never challenged his testimony concerning the existence of the notification process that he described. While Mineo, Mustaciuolo and McCardle were parties, they were not defendants on the substantive due process claim to which this issue relates. Their interests were unaffected by whether or not the notification process existed. In all of the circumstances, the jury could not reasonably have declined to find that the regular practice of the DOB was to notify the owner of the issuance of an emergency declaration and that Zeid knew that. In fact, the form notification letter is stamped with his signature. Moreover, during the argument of the post-verdict motion, plaintiffs counsel admitted that the evidence concerning the regular practice of sending these letters was uncontroverted. In consequence, although the jury was amply justified in finding that his issuance of the emergency declaration was unjustified, it could not reasonably have concluded that this action, however improper, reflected deliberate indifference to the creation of a substantial risk that it would result in demolition of the roller coaster without regard to whether demolition was necessary to protect the public.
DXV; Tr. 521-22. § 2537, at 344-45(1995) ("WRIGHT MILLER").
"THE COURT: * * * Did the plaintiffs in any way contravene the otherwise undisputed evidence that the regular practice in the Brooklyn borough office was to send a form letter comparable to Defendant's [sic] Exhibit V to owners whose property was the subject of emergency declarations? Yes or no.
"MR. GEDAN [plaintiffs counsel]: Not recalling what V was, but assuming —
"THE COURT: V was the letter to your client that was sent to 333 Henry Hudson Parkway, that you stipulated was sent and that everyone stipulated was not received.
"MR. GEDAN: We never contravened that, your Honor." (Tr., Dec. 2, 2000, at 18).
Accordingly, Zeid is entitled to judgment as a matter of law on the substantive due process violation.
B. The Trespass Claim
Defendants next seek judgment as a matter of law on the theory that the evidence does not support a liability finding as against any of the City of New York and defendants Marchiano and Mustaciuolo. They contend that (a) all three of these defendants are protected by state law official immunity, (b) Marchiano's actions in relation to demolition of the Thunderbolt were insufficiently substantial, (c) Marchiano and Mustaciuolo were justified in acting as they did because they reasonably believed that their actions were necessary to avert an imminent public disaster, (d) Mustachiuolo acted pursuant to a facially valid order, and (e) the demolition of the building referred to as the Kensington Hotel was reasonably necessary to the demolition of the Thunderbolt.
Defendants did not seek judgment as a matter of law on any of these grounds save that they sought dismissal as to Marchiano on that ground that he did "[n]othing of substance." In consequence, all of their present contentions save that are foreclosed as a basis for relief under Rule 50(a).
Tr. 710-13.
Viewing the evidence concerning Marchiano's role in the light most favorable to the plaintiff, the jury would have been entitled to find only the following: Marchiano was assistant commissioner of the DOB for operations at the time relevant here. His job entailed overseeing the day to day operations of the borough offices, including inspectorial services. Emergency declarations issued by the borough offices were forwarded to his office. Marchiano reviewed them "for accuracy for the appropriate paperwork . . . and also check[ed] the inspector's report to make sure it [was] clear as to what they're requesting . . . HPD [the Department of Housing Preservation and Development, which actually carried out demolitions for the City] to do." Once he reviewed a declaration for accuracy and completeness, he typically did not see it again.
Id. at 466-68.
Id. at 468-70.
Id. at 470.
In this case, Marchiano received a call from his superior, Barry Cox, who asked that he have the Thunderbolt inspected. He told a subordinate to have the Brooklyn office do so and, a few days later, received the emergency declaration, an inspection report and a form of letter to the owner. He determined they were accurate and complete, signed off on them, and told a subordinate to send them to HPD. Subsequently, he learned that the papers had included an incorrect block and lot number and saw the amended emergency declaration. He never heard anything further.
Id. at 471.
Id. at 471-74.
Id. at 474.
Id. at 475.
As Marchiano did not trespass on plaintiffs property, he can be found liable only on what amounts to an aiding and abetting theory. In other words, plaintiff was obliged to prove that he gave substantial assistance or encouragement to the primary tortfeasor, knowing that the other's conduct constituted a breach of duty. Further, constructive knowledge of a breach of duty is insufficient to impose aiding and abetting liability; actual knowledge is required.
E.g., Pittman by Pittman v. Grayson, 149 F.3d 111, 122-23 (2d Cir. 1998); Nat'l Westminster Bank USA v. Weskel, 124 A.D.2d 144, 147, 511 N.Y.S.2d 626, 629 (1st Dept. 1987); RESTATEMENT (SECOND) OF TORTS § 876(b) (relied upon in Lindsay v. Lockwood, 163 Misc.2d 228, 233, 625 N.Y.S.2d 393, 397 (Sup.Ct. Monroe Co. 1994); Fletcher v. Atex. Inc., 68 F.3d 1451, 1455-56 (2d Cir. 1995)).
Kolbeck v. LIT America, Inc., 939 F. Supp. 240, 246 (S.D.N.Y. 1996).
Substantial assistance is a meaningful element. As comment d to Section 876(b) of the Restatement makes clear:
"The assistance of or participation by the defendant may be so slight that he is not liable for the act of the other. In determining this, the nature of the act encouraged, the amount of assistance given by the defendant, his presence or absence at the time of the tort, his relation to the other and his state of mind are all considered."
RESTATEMENT (SECOND) OF TORTS § 876(b), cmt. d.
Measured by this standard, Marchiano's actions, even viewed most generously in favor of the plaintiff, were insufficient to justify the jury's finding. While the act in which he assisted — the demolition of the Thunderbolt — was consequential, his role at most was simply to check the paperwork. He was not present when the roller coaster was demolished. He certainly was unaware of any breach of duty, as he had no basis for believing that any unjustified demolition would occur. This branch of the motion therefore will be granted.
To be sure, the jury was not obliged to believe Marchiano's testimony as to his role. But there was no other evidence. Hence, if his testimony were disregarded, the evidence manifestly would be insufficient to show that he lent substantial assistance to the demolition.
II New Trial
A. Timeliness
Neither defendants' notice of motion nor their memorandum of law seeks a new trial, this despite the fact that the memorandum contains two sentences arguing in conclusory terms that the verdict was against the weight of the evidence and a slightly more elaborate contention that plaintiffs summation was improper. The only relief they seek is judgment as a matter of law. But a federal district court may not grant judgment as a matter of law on such grounds. When the lack of any application for a new trial was pointed out at oral argument, defendants' counsel stated that they do seek a new trial. Plaintiff resists on the ground that the application is untimely.
A party seeking a new trial under either Rule 50(b) or 59 must move for that relief within ten days after entry of judgment. Unlike most time periods prescribed by the Federal Rules, that ten day period may not be extended under Rule 6. Had judgment been entered, the motion would have been untimely. As the trial was bifurcated, however, no judgment yet has been entered. Indeed, the application for a new trial relates only to the liability phase of the case. In consequence, the motion is timely. B. The Weight of the Evidence
FED. R. CIV. P. 50(b), 59(b).
Id. 6(b). See also, e.g., Rodick v. City of Schnectady, 1 F.3d 1341, 1347(2dQr. 1993).
See, e.g., Dunn v. Truck World, Inc., 929 F.2d 311, 313 (7th Cir. 1991) (prejudgment motion for new trial timely); Riggs v. Scrivner, Inc., 927 F.2d 1146, 1148 (10th Cir. 1991) (time limit for new trial motion does not begin to run until after relief determined).
Defendants' contention that the verdict is against the weight of the evidence, in light of the entry of judgment as a matter of law dismissing the claims against Zeid and Marchiano, retains vitality only insofar as the application is made on behalf of the City and Mustachiuolo.
It has no merit with respect to the City. The finding that the demolition was unjustified was amply supported by the evidence.
Verdict form, Questions 3, 8.
The jury made two findings with respect to Mustachiuolo: defendants failed to prove that (1) he acted out of a reasonable belief that demolition of the roller coaster was necessary to avert an imminent public disaster, and (2) his action involved the exercise of discretion as distinguished from it being the performance of a routine or ministerial function. The first question of course went to the issue of justification while the second was pertinent to the state law defense of official immunity.
There is substantial reason to doubt that any real purpose would be served by ruling on this motion. To the extent that the destruction of the roller coaster was tortious, the City of New York plainly is liable. Plaintiff nevertheless has pursued not only the City, but an array of mid-level City employees, thus causing considerable expense and occupying a great deal of otherwise unnecessary Court time. The purpose of doing so, apart from possible vindictiveness, is not apparent. There is no suggestion that any City employee caused plaintiff any damage different from whatever damage may have been inflicted by the City. The City is entirely able to respond in damages and, in any case, would be obliged to indemnify its employees for any compensatory damages assessed against them for actions within the scope of their employment. So plaintiff has nothing to gain from suing the individuals for trespass save the possibility of punitive damages, and there is no reason to suppose that Mustachiuolo is sufficiently well off to justify the expense of seeking such a recovery from him.
As indicated below, punitive damages are not available against the City on the trepass claim.
In these circumstances, it appears to the Court that no valid purpose would be served by ruling at this time on Mustachiuolo's motion for a new trial on liability. The motion will be denied without prejudice to renewal within ten days after the entry of judgment. C. Improper Summation
Defendants contend that the verdict was tainted by plaintiffs allegedly improper summation. The short answer to the argument is that they did not object to the summation. Even a criminal conviction is not undermined by an improper summation, absent a contemporaneous objection, unless there was "flagrant abuse." The Court finds no flagrant abuse here.
E.g., United Stales v. Zichettello, 208 F.3d 72, 103 (2d Cir. 2000), cert. denied, 531 U.S. 1143(2001).
III Punitive Damages
Although the damages trial has yet to take place, defendants' motion for judgment as a matter of law sought also dismissal as a matter of law of all of plaintiffs punitive damage claims. The Court afforded plaintiff an opportunity to brief the issue and held oral argument. Accordingly, at least part of that issue now is ripe for disposition.
With the dismissal of the substantive due process claim, the only remaining basis for liability is common law trespass, a tort for which punitive damages generally are available in an appropriate case. Under New York law, however, neither the state or any political subdivision thereof may be held liable for punitive damages absent a statute so providing. Plaintiff has pointed to no such statute here. Accordingly, the punitive damage claim against the City is dismissed.
E.g., Clark-Fitzpatrick, Inc. v. Long Island R.R. Co., 70 N.Y.2d 382, 521 N.Y.S.2d 653 (1987); Sharapata v. Town of Islip, 56 N.Y.2d 332, 452 N.Y.S.2d 347 (1982).
The Court does not here rule on plaintiffs contention that it is entitled to treble damages pursuant to N.Y. REAL PROP. ACT. PROC. L. § 853, an issue that is premature in the absence of a compensatory damage award in plaintiffs favor.
The defendants' application is premature insofar as it is addressed to the punitive damage claim against Mustachiuolo. The motion to that extent is premised on the proposition that plaintiff has adduced all evidence pertinent to Mustachiuolo's liability for punitive damages already. Plaintiff claims otherwise. Accordingly, the Court will not decide this question at this point.
IV Conclusion
For the foregoing reasons, defendants' motion for judgment as a matter of law is granted to the extent that the action is dismissed as to defendants Marchiano and Zeid. It is denied in all other respects. The alternative motion for a new trial as to liability is denied, the denial being without prejudice insofar as defendant Mustachiuolo. The defendants' application to dismiss plaintiffs punitive damage claims is granted to the extent that the punitive damage claim against the City is dismissed and denied without prejudice to renewal insofar as it concerns Mustachiuolo.
SO ORDERED.