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SELZER v. BERKOWITZ

October 3, 1979

MICHAEL I. SELZER, Plaintiff, against MORTON BERKOWITZ, PHILLIPA STRUM, ELLEN FREY-WOUTERS, MARTIN FLEISHER, MICHAEL KAHAN, HERBERT WEISS, ROBERT ENGLER, DAVID W. ABBOTT, NATHAN SCHMUKLER, DONALD R. REICH, JOHN W. KNELLER, and HAROLD M. JACOBS, Chairman, and EDITH B. EVERETT, RONALD T. GAULT, JACK JOHN OLIVERO, DAVID Z. ROBINSON, PATRICIA CARRY STEWART, LORETTA A. CONWAY, WALTER H. CROWLEY, ARMAND D'ANGELO, GURSTIN D. GOLDIN, ALBERT V. MANISCALCO, DAVID VALINSKY, EMANUEL R. PIORE, JOAN B. MAYNARD, JOAQUIN RIVERA and EDWARD A. ROBERTS, Members of the Board of Higher Education of the City of New York, THE BOARD OF HIGHER EDUCATION OF THE CITY OF NEW YORK, and ROBERT J. KIBBEE, Chancellor of City University of New York, Defendants.


The opinion of the court was delivered by: PLATT

MEMORANDUM AND ORDER

I

 Defendants moved, pursuant to Rule 50 of the Federal Rules of Civil Procedure ("FRCP"), for an order granting defendants judgment notwithstanding the verdict or, in the alternative, pursuant to Rule 59 FRCP, for a new trial on the grounds that:

 
1. The verdict was contrary to the law and the evidence;
 
2. The verdict was excessive in amount and not supported by the evidence;
 
3. Defendants were prejudiced by opposing counsel's references in summation to a recent, highly publicized, jury damage award;
 
4. The verdict was inconsistent with the responses to Special Interrogatory 3(b);
 
5. The testimony and evidence presented at trial was insufficient as a matter of law, to support plaintiff's burden of proving constitutionally protected conduct was involved.

 Defendants' aforesaid motions are denied. No opinion.

 II

 Subsequent to making the aforesaid motions, defendants moved, pursuant to Rule 62(b) FRCP, (a) for an order staying the enforcement of judgment heretofore entered on May 18, 1979 pending a decision on defendants' aforesaid motion under Rule 50 FRCP for judgment notwithstanding the verdict and (b) for an order directing plaintiff to vacate and/or withdraw all notices filed or served pursuant to the New York Civil Practice Law and Rules "to effectuate the enforcement of said judgment". By reason of a stipulation dated and So Ordered September 28, 1979, made between the attorneys for the parties, this second motion is now moot.

 III

 By Notice of Motion served within seven days of the original judgment entered herein, plaintiff moved pursuant to Rule 59(e) FRCP for an order (a) amending the judgment so as to provide for injunctive relief granting the plaintiff promotion from assistant to associate professor and granting plaintiff tenure in the City University of New York, and pursuant to Rules 59(e) and/or 54(d) of FRCP and Title 42 U.S.C. § 1988 for an order (b) amending the judgment so as to grant plaintiff costs, including reasonable attorneys' fees and expenses.

 (a) Thereafter, because of the defendants unwillingness to negotiate appropriate injunctive relief in the premises, plaintiff withdrew the first portion of his motion and pursued only the second half thereof, i. e., his motion for reasonable attorneys' fees and expenses.

 (b) With respect to the latter, plaintiff's attorneys filed a detailed affidavit, defendants applied for and were granted extensive depositions and other discovery, and a hearing was held by the Court on (i) the issue of whether plaintiff was entitled to attorneys' fees and expenses and (ii) the issue of the reasonableness of plaintiff's attorneys' request therefor.

 By way of background, plaintiff commenced his lawsuit herein on September 23, 1977, alleging violations of 42 U.S.C. §§ 1983, 1985(3) and 1986, ultimately charging that defendants violated plaintiff's constitutional rights by causing or contributing to the causation of the denials to plaintiff of tenure and promotion at Brooklyn College on account of plaintiff's associating with and speaking to the CIA. The original verified complaint consisted of four counts and was 29 pages in length. Thereafter, the complaint was twice amended and supplemented, one of such amendments taking into account the opinions in Monell v. Department of Social Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978), and Turpin v. ...


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