and breach of contract claims. (Pl. Mem. at 27-28).
I disagree. I am not persuaded that the jury intended to award plaintiff any additional compensatory damages on the fraud claim beyond what it awarded on the discrimination claim, and I am not convinced that the fraud caused any greater damages than the discrimination. Indeed, the jury was instructed that in calculating a damages award it was to seek to "make [plaintiff] whole." I believe that the jury felt it was making plaintiff whole by awarding him $ 500,000 in back pay, $ 200,000 in front pay and $ 100,000 for pain and suffering.
As to the award of punitive damages, the jury's verdict will be upheld. First, plaintiff did submit sufficient evidence to support an award of punitive damages. The jury was charged that it could award punitive damages only if it found that plaintiff had proven his fraud claim, and further only if it found that defendant's misrepresentations were made "maliciously or wantonly." (Charge Tr. at 29). The jury was charged that an act was malicious "if it is accompanied or motivated by ill will towards plaintiff" and that an act was "wanton if it is done in reckless or callous disregard of or indifference to the rights of plaintiff." (Charge Tr. at 29-30). See Action S.A. v. Marc Rich & Co., 951 F.2d 504, 509 (2d Cir. 1991) ("Under New York law, punitive damages are appropriate in cases involving 'gross, wanton, or willful fraud or other morally culpable conduct.'. . . Such conduct need not be directed at the general public.") (quoting Borkowski v. Borkowski, 39 N.Y.2d 982, 355 N.E.2d 287, 387 N.Y.S.2d 233 (1976); other citations omitted); Ostano Commerzanstalt v. Telewide Systems, Inc., 880 F.2d 642, 649 (2d Cir. 1989) ("punitive damages may be awarded when fraud is gross, wanton, or wilful, whether or not directed at the public generally").
Here, the jury could have reasonably found that Ozman's actions were wanton or malicious, or accompanied by ill will toward plaintiff, or engaged in with reckless or callous disregard for plaintiff's rights. The jury could have reasonably concluded from the evidence in the record, for example, that Ozman wantonly or maliciously induced plaintiff to turn down a five-year employment contract knowing that it was only a matter of time before the Bank fired him. The jury surely could have reasonably inferred ill will or callousness on the part of Ozman from the many discriminatory comments he made about plaintiff's Italian heritage and the evidence that Ozman intended to deceive plaintiff.
Second, the amount of punitive damages awarded by the jury -- $ 1 million -- is not excessive. Racich v. Celotex Corp., 887 F.2d 393, 397 (2d Cir. 1989) ("under New York law, the decision to award punitive damages and their amount are questions which primarily reside in the jury's discretion"). The Bank's suggestion that the New York Branch should be treated as an entity separate and distinct from the Head Office is rejected. Again, the Head Office was kept apprised of the events transpiring in the New York Branch, and Ozman was required to report to the Head Office. Moreover, the Head Office selected Ozman as the general manager of the New York Branch and put him in charge of the Branch's business and affairs. Hence, since Ozman had the authority to talk to Marfia about his future employment with the Bank, the Head Office was responsible for Ozman's actions in that respect. Loughry v. Lincoln First Bank, N.A., 67 N.Y.2d 369, 378, 502 N.Y.S.2d 965, 969, 494 N.E.2d 70 (1986) ("punitive damages can be imposed on an employer for the intentional wrongdoing of its employees only where management has authorized, participated in, consented to or ratified the conduct giving rise to such damages, or deliberately retained the unfit servant"). Finally, since the evidence showed that the Head Office had made deposits to the New York Branch in excess of $ 150 to 200 million (Tr. 106-07), and in view of the dollar amounts of the transactions in question (see Tr. 167-68, 596-97, 626-28) and the fact that the Bank has some 1,200 branch offices and 40,000 employees throughout the world (Tr. 685), the award of $ 1 million in punitive damages was not unreasonably high.
5. Plaintiff's Counsel's Summation
Finally, the Bank attacks the jury's verdict by arguing that plaintiff's counsel's "highly improper" summation inflamed the jury. (Def. Mem. at 40-45). In particular, the Bank complains that plaintiff's counsel improperly commented on the absence from trial of Ozman, Kutlu and Erson Gokeman, improperly interjected his personal opinions, and mischaracterized the evidence.
The Bank's complaints in this respect, however, come too late. Although the Bank's counsel did object four times during plaintiff's summation (Tr. 1043, 1047, 1060-61), and although counsel did request a clarifying instruction at the close of summations (Tr. 1064), he did not object or request a curative instruction with respect to any of the statements now in question. Hence, even assuming some of the statements were overzealous, the Court did not have a "timely opportunity to cure the alleged overzealousness of [Marfia]'s attorney." Matthews v. CTI Container Transport Int'l Inc., 871 F.2d 270, 278 (2d Cir. 1989); accord Hofer v. Mack Trucks, Inc., 981 F.2d 377, 385 (8th Cir. 1992) (holding that it was counsel's "responsibility" to note exceptions to purportedly improper statements in closing argument and to request "some curative or remedial action by the court before the case was submitted to the jury"); see also Racich, 887 F.2d at 399 (where party fails to object to purportedly improper remarks in closing argument, to be able to raise the issue on appeal it must show that the "remarks were so inflammatory as to constitute plain error").
Moreover, while I might very well have sustained an objection to some of the statements in question or given a curative instruction, I do not believe the statements were so improper as to warrant a new trial in any event. As the Second Circuit has recognized:
Trial courts possess broad discretion to determine when the conduct of counsel is so improper as to warrant a new trial. Not every improper or poorly supported remark made in summation irreparably taints the proceedings; only if counsel's conduct created undue prejudice or passion which played upon the sympathy of the jury, should a new trial be granted.
Matthews, 871 F.2d at 278. In my view, plaintiff's counsel's comments in summation did not "irrepably taint the proceedings."
The only comments made by plaintiff's counsel that warrant any further discussion are the comments relating to Ozman's absence from trial. As the Bank pointed out, Ozman did offer to travel to the United States to testify at trial; plaintiff objected, and I sustained the objection. Marfia v. T.C. Ziraat Bankasi, No. 88 Civ. 3763 (DC), slip op. at 2, 4, 6 (S.D.N.Y. Jan. 26, 1995). The Bank now argues that it was wrong for plaintiff's counsel to complain in summation about his inability to cross-examine Ozman when Ozman offered to make himself available at trial.
The Bank's arguments are meritless. Ozman defaulted on his obligations in discovery, and a default judgment was entered against him, both individually and in his official capacity. Ozman never moved to set aside the default judgment, and he never offered to cure his default. I had ruled prior to trial that he would not be permitted to testify because of the default judgment against him. See id. Hence, his belated offer, made on the eve of trial, to travel to the United States to testify was disingenuous. Moreover, in context, plaintiff's counsel's comments regarding Ozman's absence did not irreparably taint the proceedings because the jury was fully aware of the circumstances surrounding Ozman's absence, and plaintiff's counsel's comments clearly were based on the fact that Ozman was unavailable because he had defaulted on his obligations in discovery. (See Tr. 729-35; 1106-08).
B. Plaintiff's Motion
1. Prejudgment Interest
Plaintiff seeks prejudgment interest on the damages awarded by the jury. The injuries for which the jury awarded Marfia compensation were first sustained in 1987. As the Supreme Court has noted, money received today for services provided previously is not equivalent to the same dollar amount had it been received at the time the services were provided. Missouri v. Jenkins, 491 U.S. 274, 283, 105 L. Ed. 2d 229, 109 S. Ct. 2463 (1989). For this reason, the Supreme Court has held that prejudgment interest is an element of complete compensation. West Virginia v. United States, 479 U.S. 305, 310, 93 L. Ed. 2d 639, 107 S. Ct. 702 (1987); General Motors Corp. v. Devex Corp., 461 U.S. 648, 655-56, 76 L. Ed. 2d 211, 103 S. Ct. 2058 (1983). Indeed, while the award of prejudgment interest is a matter for the trial court's discretion, the Second Circuit has observed that "'it is ordinarily an abuse of discretion not to include prejudgment interest in a back-pay award . . . .'" Clarke v. Frank, 960 F.2d 1146, 1154 (2d Cir. 1992) (quoting Donovan v. Sovereign Security, Ltd., 726 F.2d 55, 58 (2d Cir. 1984)). In the present case, I believe that Marfia is entitled to an award of prejudgment interest on the compensation he would have received but for the Bank's wrongful conduct.
The Bank argues that plaintiff should be denied prejudgment interest because the jury's award of $ 500,000 in back pay "may very well include interest." (Def. Fees Mem. at 19).
The Bank speculates that the jury may have included interest because in summation plaintiff's counsel asked for $ 398,000 in back pay, indicating that he was being conservative because the amount requested "doesn't talk about interest." (Id. at 19, citing Tr. at 1061).
The Bank's speculation is rejected. While plaintiff's counsel's reference in his summation to interest was ill-advised, in context I do not believe the reference caused the jury to factor in prejudgment interest. Plaintiff's counsel's estimate of $ 398,000 in back pay was based on an assumption of 7% pay increases over "7 some-odd years." (Tr. 1061). Plaintiff's counsel also told the jury in summation that plaintiff "might have gotten bigger raises. It [the $ 398,000 figure] doesn't talk about bonuses. He got bonuses. You have got it in the record." (Id.). Since the jury was not instructed to add interest,
it is more likely that the jury either utilized salary increases greater than 7% or factored in bonuses.
I agree with the Bank, however, that prejudgment interest should not be awarded with respect to the front pay and pain and suffering awards. Hence, prejudgment interest will only be awarded on the $ 500,000 back pay award.
Interest will be computed at the rate of 9% per annum, the statutory rate in New York. N.Y.C.P.L.R. § 5004; see Malarkey v. Texaco, Inc., 794 F. Supp. 1237, 1243 (S.D.N.Y. 1992), aff'd, 983 F.2d 1204 (2d Cir. 1993). To simplify the calculations, I will divide the $ 500,000 back pay award evenly over the eight-year period following plaintiff's dismissal on May 29, 1987, and I will assume that each installment should have been paid on the last day of each year.
Hence, interest will be calculated as follows:
Due No. of Days
Amount Date to 9/15/95
$ 62,500 5/29/88 2,664
$ 62,500 5/29/89 2,299
$ 62,500 5/29/90 1,934
$ 62,500 5/29/91 1,569
$ 62,500 5/29/92 1,204
$ 62,500 5/29/93 839
$ 62,500 5/29/94 474
$ 62,500 5/29/95 109
Total No. of Days: 11,092
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