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May 11, 1994

PAUL PORTEE, DONNA PORTEE and JUSTIN PORTEE, An Infant, By PAUL PORTEE and DONNA PORTEE, His Parents and Natural Guardians, Plaintiffs,


The opinion of the court was delivered by: JACOB MISHLER

MISHLER, District Judge

 Paul, Donna, and Justin Portee sued Hastava Real Estate, Henry M. Hastava and Benjamin Vajda *fn1" for violation of 42 U.S.C. §§ 1981 and 1982; Title VIII of the Civil Rights Act of 1968, 42 U.S.C. § 3601 et seq. (the Fair Housing Act or FHA) (West 1977 & Supp. 1994); and N.Y. Exec. Law § 296(5)(a)(1) (McKinney 1993). The case was tried to a jury from September 27 through September 30, 1993. At the close of plaintiffs' evidence, the defendants moved for judgment as a matter of law, challenging the plaintiffs' prima facie case. The motion was in all respects denied. T.256. *fn2" At the close of all the evidence, the defendants renewed their motion, which was again denied. T.460.

 Following the jury's verdict in the Portees' favor, the defendants again renewed their motion for judgment as a matter of law pursuant to Fed. R. Civ. P. 50(b), and moved in the alternative for a new trial pursuant to Fed. R. Civ. P. 59 on the grounds that the verdict was against the weight of the evidence, that the conduct of plaintiffs' counsel rendered the trial unfair, that there was newly discovered evidence, and that the damages were excessive. *fn3"

 For the reasons stated below, the court denies the defendants' motion for judgment as a matter of law, and denies the alternative motion for a new trial on the grounds that the verdict was against the weight of the evidence, that there is newly discovered evidence, and that counsel's conduct rendered the trial unfair. The court vacates the jury's award to the Portees of $ 280,000, and grants a new trial with respect to compensatory damages only.

 I. Legal Standard for Judgment as a Matter of Law

Fed. R. Civ. P. 50(a) *fn4" states:
(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.

 The Second Circuit has interpreted this rule to require "'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,' or that the evidence be 'so overwhelming that reasonable and fair minded persons could only have reached the opposite result.'" Lambert v. Genesee Hospital, 10 F.3d 46, 56 (2d Cir. 1993) (quoting Sorlucco v. New York City Police Dep't, 971 F.2d 864, 871 (2d Cir. 1992), which quotes in turn Stubbs v. Dudley, 849 F.2d 83, 85 (2d Cir. 1988), cert. denied, 489 U.S. 1034, 103 L. Ed. 2d 230, 109 S. Ct. 1095 (1989)), cert. denied, 62 USLW 3702 (U.S. Apr. 25, 1994) (No. 93-1388).

 In deciding a Rule 50 motion, the court must construe the evidence most favorably to the non-moving party without, weighing the evidence or passing on the credibility of witnesses. Samuels v. Air Transport Local 504, 992 F.2d 12, 14 (2d Cir. 1993); Flynn v. Goldman, Sachs & Co., 836 F. Supp. 152, 154 (S.D.N.Y. 1993). Furthermore, there must be some affirmative evidence to support plaintiffs' version of the facts. "The party bearing the burden of proof cannot create an issue for the jury's resolution by relying solely on the hope that the jury will not trust the credibility of the witnesses." Flynn, 836 F. Supp. at 154. "'If all of the witnesses deny that an event essential to plaintiff's case occurred, he cannot get to the jury simply because the jury might disbelieve some of those denials. There must be some affirmative evidence that the event occurred.'" Martin v. Citibank, N.A., 762 F.2d 212, 217-18 (2d Cir. 1985) (quoting 9 CHARLES WRIGHT & ARTHUR MILLER, Federal Practice & Procedure § 2527 at 563 (1971)). Because the Portees have introduced sufficient evidence to establish a prima facie case of housing discrimination, and have adduced sufficient evidence to allow the jury to infer that the defendants' reasons for denying them housing were pretexts for discrimination, they have carried this burden, and the court cannot grant the defendants' motion for judgment as a matter of law.

 The Portees' theory of the case is that Mr. Vajda (1) allowed Mrs. Portee to sign the lease for possession of and gave her the keys to the premises at issue even though her checks had not cleared; (2) upon meeting Mr. Portee and realizing he was black, refused to allow him to sign the lease, kept the checks and retook possession of the premises by taking the keys away from Mrs. Portee; and (3) kept the premises available for rental after their refusal to rent it to the Portees, all because of the race of Mr. Portee. *fn5" They contend that the agency itself and Mr. Hastava as its owner are responsible for the acts of their agent Mr. Vajda.

 Mr. Vajda claims that he had a nondiscriminatory reason: for retaking the premises and not allowing Mr. Portee to sign the lease. His position is that (1) the keys were lent to Mrs. Portee only to allow her to show her family the premises; they were not to take possession until after the checks she had given for rent and fees had cleared, (2) Mr. Portee seemed to think that once he signed the lease he was entitled to immediate possession, and (3) Mr. Vajda did not let him sign the lease because Hastava Realty as managing agent could give possession with only the tenants' signatures on the lease, and so needed to wait until the checks cleared on Monday (these events having occurred on Saturday).

 Without weighing the evidence or passing on the credibility of witnesses, we examine the evidence in the light, most favorable to the Portees to determine whether race played a role in Mr. Vajda's decision not to rent the premises to them.

 II. The Evidence at Trial

 The Portees are an interracial couple: Mrs. Portee is white, and Mr. Portee is black. At the time of the events at issue, they had one child, Justin, then 5 years old. T.79, 101. They had become dissatisfied with their living arrangements, and in late 1989 began to look for a new home. T.81-82.

 On Saturday morning, Mrs. Portee arrived at HRE and met Mr. Vajda. They went to view the Premises, making small talk along the way. Mr. Vajda asked general questions about Mrs. Portee's background, about where Justin went to school, and so forth. He also asked the origin of the name "Portee", commenting that it sounded French, and that his name was commonly pronounced "Vajda" rather than "Voida" the proper pronunciation. Mrs. Portee replied that her name was of: French and Indian derivation. T.85-86, 261-62.

 A. Mrs. Portee inspects the Premises and signs the lease

 They arrived at the Premises, and Mr. Vajda showed Mrs. Portee around. He explained that the furniture could stay or go, but that if she did not want it she was responsible for disposing of it. He showed her how to adjust the heat in each room. He showed her the fuse box, the kitchen, the washing machine, and so forth. T.86-87, 262-63.

 After going through the house, Mr. Vajda showed her the backyard, which included a vegetable garden and a tool shed. T.88. He explained that the Portees would be responsible for cutting the lawn, and told Mrs. Portee that he would put a clause in the lease to the effect that the tools were part of the rental and had to stay with the Premises at the expiration of the lease. T.87.

 Mrs. Portee expressed interest in the Premises, but said that she wanted to see the other two apartments Mr. Vajda had mentioned. She testified that Mr. Vajda told her that another couple was coming back later that day to put down a deposit on the Premises, so if she wanted the lease she had to act quickly. Whoever gave him money first would get the lease. With that, Mrs. Portee told Mr. Vajda that she would give him a binder, and he suggested that they return to the HRE office. T.88-89.

 Mr. Vajda's testimony differed from Mrs. Portee's. He testified that he told her that small houses do not stay on the market long, and that she should act quickly. He denied telling her that he had someone "in the bullpen". T.263. Furthermore, he testified that he offered to show her another apartment, but she told him she did not want to see it; she liked the Premises and she was late to pick up Justin. T.264.

 They drove back to HRE to take care of the paperwork. Mrs. Portee wrote out two checks: one, for $ 750, was made out to the landlord for December's rent; the other, for $ 1,500, was made out to Henry Hastava for the agency's fee ($ 750) and for a security deposit ($ 750). T.89. Mrs. Portee told Mr. Vajda that she only had $ 503.43 in her checking account, not enough to cover the checks. However, she had $ 1,518.13 in her savings account that she would transfer to her checking account on Monday. In addition, she had about $ 500 saved at home that she would deposit into her checking account to cover the rest. T.95-96. Mr. Vajda testified that he suggested that if she brought him cash she could have immediate possession, T.266, but she replied that she did not do business that way and she would give him checks. T.266-67. Mrs. Portee denied that this happened. T.135.

 Mr. Vajda testified that he explained that she could not take possession of the house until the checks cleared. Since she could not put money into her checking account until Monday morning, he agreed to hold the checks until Monday afternoon. T.94, 96, 265. Mr. Vajda then had a typist add several standard clauses to the lease while Mrs. Portee waited, and when he returned about five minutes later she signed the lease. T.89-90. She signed on the second line, expecting that her husband would sign on the first line. T.93.

 Mrs. Portee testified that Mr. Vajda saw her getting excited about the house. She said to him, "I will start moving my stuff in today." Mr. Vajda replied by telling her that there was a Foodtown down the block that could probably supply her with boxes for the move. T.90. In addition, Mr. Vajda told her what needed to be done on Monday: she had to have the electricity, telephone, and water put in her name. T.90. However, according to her testimony, Mr. Vajda never told her about any limitations on possession. T.94, 136. Mr. Vajda, of course, did not testify to any of this.

 According to Mrs. Portee, Mr. Vajda told her that all he needed was for Mr. Portee to come to the office to sign the lease. T.98. Mr. Vajda asked if she could bring Mr. Portee back earlier than 4:30, when he was done working for the day, and Mrs. Portee said that she would try to find him, since was his lunch hour. Id.

 B. The Portees view the Premises

 She found her husband having lunch at his brother's business, and told him that he had to come with her to sign the lease. They went to pick up Justin at his tap-dancing class, and went to look at the house. T.99.

 Mrs. Portee let the family in with the key Mr. Vajda had given her. Mr. Portee worked as a maintenance man at a condominium complex, and was familiar with the workings of a house. T.150. He looked at the fusebox and saw the rooms. He also looked at the sink and turned the water on. T.100, 153, 168. In addition, he used the bathroom and flushed the toilet. T.153.

 Mrs. Portee also showed them around outside, explaining that they had to maintain the grounds. She showed Mr. Portee where the tools were in the shed. After this, they went back into the house, and Mr. Portee commented on several things that needed fixing. He turned the heat up so that the house would be warm when they arrived that evening. T.100-01, 153.

 The Portees were happy with the house. As they went through it, they were laughing and joking. They showed Justin the bedroom that was to be his, and showed him the backyard in which he would play. T.101, 154.

 C. Mr. Portee tries to sign the lease

 When they left the house, they locked it and returned to the HRE offices. Mrs. Portee walked in first, and announced to Mr. Vajda that she had returned with her husband. T.102. Mr. Portee testified that he walked in with his hand extended, but Mr. Vajda never took it. T.155. Mr. Vajda contradicted that, saying that Mr. Portee never had his hand out to be shaken. T.284.

 When Mr. Vajda saw Mr. Portee, he became very nervous, as if he "didn't know what to do." T.102-03. Mr. Portee said, "Hi, my name is Paul Portee." Mr. Vajda did not respond. He walked away and went upstairs for about 10 or 15 minutes. T.103.

 When he returned, Mrs. Portee testified, she saw Mr. Hastava standing behind him in the doorway, T.104, although it is unclear how long he was there. Mr. Vajda approached them, got his coat and hat, and suggested they go to view the Premises. Mr. Portee told him that he had already seen the Premises and just wanted to sign the lease. Id.

 Mr. Vajda walked back towards them, and Mr. Portee said, "Where's the lease? I want to sign it." Mr. Vajda replied, "I don't have the lease." Mr. Portee responded, "I don't know what's going on here, but I think I know and what you are doing is illegal." T.106.

 Mrs. Portee had been standing near her husband with her key ring in her hand. Mr. Vajda walked over to her, grabbed the ring out of her hand, removed the key for the Premises, and gave her the key ring back, not saying a word the entire time. T.106-08. Mr. Portee testified that Mr. Vajda never spoke a word to him or to his wife in his presence. T.176

 Because of this, he was surprised when Mr. Portee walked into HRE with his family and said, "'I want to sign the lease and get out of here.'" T.275. He excused himself and went upstairs to see Mr. Hastava. Mr. Hastava was on the phone, and did not get off for about 10 minutes. T.276-77. Once he did, Mr. Vajda explained that the Portees were downstairs but that they had written personal checks for the lease. In addition, there were several other matters that needed to be attended to before they could move in. T.275-77. Despite this, Mr. Portee was demanding to sign the lease. T.275, 277.

 Mr. Hastava told Mr. Vajda to go ahead with the transaction, but under no circumstances could he let Mr. Portee sign the lease. T.276, 359. This was because HRE was acting as managing agent for the Premises, so that if both tenants signed the lease, they could have taken immediate possession. T.362-63, 401. Mr. Vajda ...

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