Memorandum of Decision and Order
MISHLER, District Judge
Donald Binder sued his former employer, defendant Long Island Lighting Company ("LILCO"), alleging willful violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (1988) ("ADEA") and New York Executive Law § 296 et seq. Binder claims that LILCO discriminated against him because of his age by terminating his employment and by not finding him another position within LILCO despite the fact that other positions were available and that many were given to individuals younger than Binder.
The case was tried to a jury from October 25, 1993 through October 27, 1993. At the close of plaintiff's case-in-chief, LILCO moved for judgment as a matter of law based on the lack of evidence that would establish that age played any part in LILCO's decision to terminate Binder. The court denied LILCO's motion, but indicated that "if the jury comes out with a verdict for the plaintiff, you just renew your motion, and then I will give it very serious thought." T.341. At the close of all the evidence, LILCO renewed its motion.
Following the jury's verdict in Binder's favor, LILCO again renewed its motion for judgment as a matter of law. In the alternative, LILCO moved for a new trial pursuant to Fed. R. Civ. P. 59 on the grounds that the verdict was against the weight of the evidence and contrary to law, and in the alternative again to remit the damage award for pain and suffering as grossly excessive and against the weight of the evidence. For the reasons below, the court grants the motion for judgment as a matter of law and, in the alternative, grants the motion for a new trial. FED. R. CIV. P. 50(c)(1). Even if these motions were not granted, the court would grant a new trial on the issue of damages, since the amount of damages found by the jury is unsupported by the evidence. FED. R. CIV. P. 59(d).
I. Specificity of the motion for judgment as a matter of law
As a threshold matter, Binder asserts that LILCO did not make its initial motion for judgment as a matter of law with the requisite specificity. Because of this, he argues that its renewed motion should not be considered by the court.
At the close of Binder's case, LILCO moved "for judgment as a matter of law on the basis that there is no evidence put on this record to establish that age has any role, played any part in the decision to terminate plaintiff. " T.341
(emphasis added). The italicized language is sufficiently definite to preserve LILCO's current motion.
The cases cited by Binder are all inapposite. In Piesco v. Koch, 12 F.3d 332 (2d Cir. 1993), the defendant made its Rule 50(a) motion by saying, "Defendants move for a directed verdict." The defendant in Heller v. Champion Int'l Corp., 891 F.2d 432, 436 (2d Cir. 1989), failed entirely to raise a claim in its initial motion for a directed verdict; the Second Circuit would not consider the argument in the motion j.n.o.v. In Smith v. Lightning Bolt Productions, Inc., 861 F.2d 363, 368 (2d Cir. 1988), the defendant moved for a directed verdict by "stating simplistically that 'plaintiff has failed to make out a prima facie case'". Furthermore, the Second Circuit found that the defendant made no motion at all addressed to the elements of a count of fraud. Id. at 367-68. Finally, in Meriwether v. Coughlin, 879 F.2d 1037, 1040 (2d Cir. 1989), the defendant moved by saying, "'. . . defendants wish to move for a judgment notwithstanding the verdict.'"
None of these statements is sufficient "to give the claimant a fair 'opportunity to cure the defects in proof that might otherwise preclude him from taking the case to the jury.'" Smith, 861 F.2d at 367, quoting 5A MOORE'S FEDERAL PRACTICE P 50.08 at 50-88 (1992). By contrast, the motion made here by LILCO clearly indicated that, in LILCO's view, there was no evidence of a necessary element of Binder's claim -- that is, that age played a role in LILCO's decision not to consider him for other positions for which he may have been qualified. That motion is sufficient as a matter of law, and this court will consider the motion on the merits. See, e.g., Best Brands Beverage, Inc. v. Falstaff Brewing Corp., 842 F.2d 578, 586 (2d Cir. 1987) (sufficient specificity to challenge contract formation when counsel said, "plaintiff cannot produce any cognizable evidence that a valid contract exists."); Posadas de Mexico, S.A. de C.V. v. Dukes, 789 F. Supp. 121, 123 n.1 (S.D.N.Y. 1992) (sufficient specificity under Rule 50(b) when counsel said "plaintiff has not proven his case nor has he proved any elements of fraud . . . against Mr. Rufer.").
II. Legal standard for Judgment as a Matter of Law
Fed. R. Civ. p. 50(a)
(a) Judgment as a Matter of Law.
(1) If during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, the court may determine the issue against that party and may grant a motion for judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue.