MEMORANDUM, DECISION & ORDER
This suit arose from the termination of John P. McGuigan, an employee of the Marketing Department at CAE-Link Corporation ("CAE-Link"). On May 18, 1989, McGuigan was terminated from CAE-Link during a planned reduction in the company's work force. Contending that he was unlawfully discharged from his position because of his age, plaintiff brought claims under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and New York Human Rights Law (New York Executive Law, Article 15), and brought a claim for alleged breach of employment contract. The ADEA and Human Rights Law claims survived for trial.
A jury trial of this action commenced on February 22, 1994 and ended on March 7, 1994 with a jury verdict in favor of the defendant CAE-Link. On March 9, 1994, judgment dismissing plaintiff's action was entered by the Court Clerk. On March 16, 1994, plaintiff served and filed a motion for judgment pursuant to Fed.R.Civ.P. 50, or alternatively, for a new trial pursuant to Fed.R.Civ.P. 59. Additionally, plaintiff seeks an extension of time to file an appeal pursuant to Fed.R.App.P. 4(a)(5) to sixty (60) days from the date this order is entered.
A. Procedural Requirements of Motion for Judgment as a Matter of Law
Defendant asserts that plaintiff may be procedurally barred from moving for judgment as a matter of law under Fed.R.Civ.P. 50(b) because he did not make a motion for judgment pursuant to Fed.R.Civ.P. 50(a) at the close of CAE-Link's proof. Defendant's attorney asserts that at the end of plaintiff's proof he made the only motion for judgment. He claims that no motions for judgment were made at the close of all evidence by either party. On the other hand, plaintiff's attorney attests that he made a Rule 50(a) motion at the close of defendant's proof and renewed the motion at the close of all evidence.
Generally, a motion for judgment as a matter of law may be made after judgment, but only if a motion for a directed verdict was made prior to the submission of the case to the jury. Fed.R.Civ.P. 50(b); Piesco v. Koch, 12 F.3d 332, 340 (2d Cir. 1993). The purpose of requiring that the motion for a directed verdict be made before the case is turned over is to the jury to allow the non-moving party to have the chance to cure any deficiency in its proof that may have been overlooked. Piesco, 12 F.3d at 340. Essentially, the motion for judgment as a matter of law is a renewal of the directed verdict motion. Heller v. Champion Int'l Corp., 891 F.2d 432, 436 (2d Cir. 1989). However, despite this general requirement and the rationale supporting it, the court may consider a Rule 50(b) motion in cases where no directed verdict motion was made if it is necessary to prevent "manifest injustice." Gibeau v. Nellis, 18 F.3d 107, 1994 U.S. App. LEXIS 3682 (2d Cir. 1994).
In this case, due to ambiguity in the trial transcript and the affidavits of the attorneys, it is unclear whether plaintiff actually made a motion for directed verdict. It appears from the transcript that the court told the parties at the close of all evidence that it would reserve on the "[directed verdict] motions which had been made," yet it is not clear from other portions of the transcript that both parties made such motions. Nonetheless, due to these ambiguities, and in order to avoid injustice, the court will continue under the assumption that Rule 50(a) motions were made by both parties, and will consider the merits of plaintiff's Rule 50(b) motion.
B. Motion for Judgment as a Matter of Law
A judgment as a matter of law is only appropriate when there is "such a complete absence of evidence supporting the verdict that the jury's finding could only have been the result of sheer surmise and conjecture." King v. Macri, 800 F. Supp. 1157, 1160 (S.D.N.Y. 1992), quoting, Sorlucco v. New York City Police Dept., 971 F.2d 864, 871 (2d Cir. 1992). Stated another way, a judgment as a matter of law is proper only if there is "such an overwhelming amount of evidence in favor of the movant that reasonable and fairminded [jurors] could not arrive at a verdict against him." Samuels v. Air Transport Local 504, 992 F.2d 12, 14 (2d Cir. 1993). A motion for judgment as a matter of law "should be denied unless, viewed in the light most favorable to the nonmoving party, 'the evidence is such that, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, there can be but one conclusion as to the verdict that reasonable men could have reached.'" Samuels, 992 F.2d at 14, quoting, Simblest v. Maynard, 427 F.2d 1, 4 (2d Cir. 1970).
In this case, plaintiff claims that judgment as a matter of law is appropriate because evidence submitted by the defendant supports a clear violation of the ADEA. Plaintiff asserts that:
CAE-Link Corporation admitted, and the exhibits support, that it utilized statistics to insure that the percentage of employees over 40 years of age, females, and minorities remained the same after layoffs as it was prior to such layoffs. The rationale - to avoid allegations of disparate impact.