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September 3, 1991


The opinion of the court was delivered by: Bartels, District Judge.


This action arises out of an incident involving plaintiff Alexander Salzmann's two sons, Scott and Timothy, who bought a stolen "go-cart" and transported the same to the plaintiff's premises. On inquiry by the Suffolk County police on October 13, 1986, the plaintiff led the police to a Chevrolet van, which contained the go-cart. Plaintiff and his sons took the van and accompanied the police to the local precinct. At the precinct the plaintiff's sons were questioned by the police, but were repeatedly interrupted by the plaintiff, who was quite agitated at the time. Plaintiff stormed out of the precinct, apparently in an attempt to drive away with the van, disregarding the officers' orders to the contrary. After a short scuffle with officer Frank Sciccitano, the plaintiff was arrested by the defendants, Gerald Pelkofsky, Thomas Barry, and Sciccitano, for the misdemeanor of obstructing governmental administration. Thereafter, plaintiff was prosecuted for that offense in State court, where he was acquitted.

Plaintiff then brought this civil rights action in Federal court. In his suit under 42 U.S.C. § 1983, plaintiff set forth three distinct violations of his civil rights: First, he sues all three defendants for excessive use of force. Second, he sues defendants Sciccitano and Pelkofsky for false arrest. Third, he sues defendant Sciccitano for malicious prosecution. Plaintiff's § 1983 action was tried before this Court from June 3-7, 1991. The jury rendered a unanimous verdict rejecting all of the plaintiff's claims and judgment was entered for the three defendants. The jury inexplicably concluded, as stated in its answers to special verdict interrogatories, that there was probable cause to arrest the plaintiff, but there was not probable cause to prosecute him. In answering another interrogatory, the jury concluded that there was no malice involved in the prosecution.

Plaintiff now argues, in the instant motion for a judgment notwithstanding the verdict (j.n.o.v.) or a new trial, that the court incorrectly charged the jury on the malice element of the malicious prosecution claim. Plaintiff brings this motion despite the fact that he never objected to the disputed language at the Court's charging conference. Plaintiff seeks a j.n.o.v., pursuant to Fed.R.Civ.P. 50(b),*fn1 in favor of plaintiff on his malicious prosecution claim against defendant Sciccitano, or alternatively, for a new trial on that claim, pursuant to Fed.R.Civ.P. 59(a).*fn2 Upon the law, the Court hereby denies the motion.


I. J.N.O.V.

Initially, the Court notes that under our system it is a novel concept to challenge a defective jury charge by a motion for a j.n.o.v. Instead, a motion for a j.n.o.v. must renew a prior motion for a directed verdict based on the merits of the case. Fed.R.Civ.P. 50(b). Plaintiff failed to move for a directed verdict before the case went to the jury. "The rule is well established that a motion for a directed verdict at the close of all the evidence is a prerequisite for j.n.o.v." Hilord Chemical Corp. v. Ricoh Electronics, Inc., 875 F.2d 32 (2nd Cir. 1989). Since an objection to an alleged error in the jury charge could not have been raised until after that charge was given, plaintiff's objection cannot now serve as the basis for a j.n.o.v. Hilord Chemical Corp., supra at 37-38 ("the motion for j.n.o.v. cannot assert a ground that was not included in the motion for a directed verdict").


The Court will therefore treat plaintiff's motion solely as a motion for a new trial. Again, such a motion will not be granted, even if there is a prejudicial error in the jury charge, if the same is not raised before the jury retires. "Unless it is nonprejudicial, the giving of an erroneous instruction or the failure to give a proper requested instruction is a ground for a new trial, provided that the party moving for a new trial made an objection before the jury retired to consider its verdict, and stated distinctly the matter to which he objected and the grounds of his objection." 6A MOORE'S FEDERAL PRACTICE DIGEST ¶ 59.08[2]. Plaintiff's motion must therefore be denied for two reasons: First, he failed to make a timely objection to the alleged error, as required by Fed.R.Civ.P. 51.*fn3 Second, even if his objection had been timely, he has failed to show any prejudice which might justify a new trial under Fed.R.Civ.P. 59(a).

A) Not Timely

The purpose of the timely objection requirement is to "prevent unnecessary new trials because of errors the judge might have corrected if they had been brought to his attention at the proper time." Cohen v. Franchard Corporation, 478 F.2d 115, 122 (2nd Cir. 1973), cert. denied 414 U.S. 857, 94 S.Ct. 161, 38 L.Ed.2d 106 (1973). Plaintiff objects to the Court's instruction on the malice element of malicious prosecution, which reads as follows:

Plaintiff objects to the language requiring that "the initiation of the prosecution must have been accompanied by ill will, spite, or grudge."

Plaintiff never objected to this language at any time during the week long trial. The Court gave a copy of its proposed jury charge to counsel prior to holding its charging conference. The charging conference on June 6 was unusually time consuming and afforded each side an ample opportunity to raise objections to the proposed charge. Plaintiff's counsel took advantage of this opportunity by making a number of objections to the charge, including a different objection to the very ...

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