The opinion of the court was delivered by: Bartels, District Judge.
MEMORANDUM-DECISION AND ORDER
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
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").
II. NEW TRIAL ON MALICIOUS PROSECUTION
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. 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).
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 ...