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HABER v. COUNTY OF NASSAU

September 8, 1976

MAX HABER, as executor of the Goods, Chattels and Credits that were of George Haber, Deceased, and MAX HABER, individually, Plaintiff,
v.
THE COUNTY OF NASSAU, and ROBERT SEHLMEYER, Defendants



The opinion of the court was delivered by: PLATT

PLATT, District Judge.

 Defendants renew their motion made at the close of the proof on the entire case for a directed verdict and move for judgment notwithstanding the verdict or, in the alternative, for a new trial (FRCP 50).

 The Court reserved decision on defendants' motion made at the end of the case and submitted the issues on the following three claims in plaintiff's complaint, as amended, to the jury:

 1. An alleged violation of plaintiff's son, George Haber's, civil rights by the defendant Sehlmeyer (on which the jury returned a verdict for said defendant).

 2. Wrongful death of George Haber based on the alleged negligence of the defendants (on which the jury returned a verdict for the plaintiff for $100,000).

 3. Conscious pain and suffering of George Haber based on said negligence (on which the jury returned a verdict for the plaintiff for $25,000).

 Prior to the trial the defendant County of Nassau moved to dismiss all three claims on the ground of lack of jurisdiction. This Court granted said defendant's motion as to the first claim but denied it as to the second and third claims under the doctrine of pendent jurisdiction (411 F. Supp. 93 (E.D.N.Y. 1976)). Subsequent to the trial and verdict in this case the United States Supreme Court has in another case held the latter part of the Court's decision to be in error and that plaintiff's second and third state law claims are "without the statutory jurisdiction" of this Court. Aldinger v. Howard, et al., 427 U.S. 1, 96 S. Ct. 2413, 49 L. Ed. 2d 276 (1976). Accordingly, the verdict against the County of Nassau must be set aside and plaintiff's claims against said defendant must be and the same hereby are dismissed.

 This then leaves only the second and third claims against the defendant Sehlmeyer. As to these, in view, inter alia, of the notes sent to the Court by the jury (Court's Exhibits 2 and 4):

 
"(1) If we find in favor of the plaintiff on claim #1 do we then have to determine a monetary value for damages; and if so, will the Officer be held responsible for that amount?
 
"(2) Also, on claims no. 2 & 4, *fn1" if we find in favor of the plaintiff do we have to determine a monetary value for damages? and if so, do we determine the amount which each defendant pays?
 
Thomas Pasqua"

 and

 
"[Question] I hate to be redundant, but we are still confused on one issue. Regarding claims # 2 and # 4. Can we find the ...

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