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March 19, 1997

EVE BRUNEAU, Plaintiff,

The opinion of the court was delivered by: KAHN

 Presently before the Court is the plaintiff's motion pursuant to Fed. R. Civ. P. 59 to set aside the judgment entered on November 25, 1996 in the above captioned action and to grant a new trial. The motion was taken on submission and no oral argument was heard.


 This § 1983 civil rights action stems from incidents which allegedly took place while the plaintiff was a student at the defendant South Kortright Central School District ("South Kortright" or "School"). Specifically, plaintiff Eve Bruneau ("Bruneau") asserts that she was sexually harassed by several of her male classmates and that this sexual harassment was not prevented by the School despite her protests. Bruneau brought suit against both the School and the South Kortright School Board (the "Board"). The matter went to trial on November 4, 1996, in Binghamton, New York. On November 21, 1996, the jury returned a verdict for the defendants.

 Rule 59 provides in pertinent part that:

A new trial may be granted to all or any of the parties and on all or part of the issues (1) in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States . . . ."

 The rule further sets forth that a motion for a new trial shall be filed no later than ten days after the entry of judgment.

 "The authority to grant a new trial is . . . confided almost entirely to the exercise of discretion on the part of the trial court." Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 36, 66 L. Ed. 2d 193, 101 S. Ct. 188 (1980). A trial court may exercise its discretion to grant a new trial for reasons such as the "verdict is against the weight of the evidence, [] the damages are excessive, or that, for other reasons, the trial was not fair to the party moving; and may raise questions of law arising out of alleged substantial errors in admission or rejection of evidence or instructions to the jury." Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251, 85 L. Ed. 147, 61 S. Ct. 189 (1940)

 "The district court's grant of a new trial motion is usually warranted only if it 'is convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice.'" Sorlucco v. New York City Police Dep't, 971 F.2d 864, 875 (2d Cir. 1992) (quoting Smith v. Lightning Bolt Prods., Inc., 861 F.2d 363, 370 (2d Cir. 1988); citing Bevevino v. Saydjari, 574 F.2d 676, 684 (2d Cir. 1978)). In Bevevino, the Second Circuit discussed the standard by which the trial judge should exercise discretion:

The trial judge, exercising mature judicial discretion, should view the verdict in the overall setting of the trial; consider the character of the evidence and the complexity or simplicity of the legal principles which the jury was bound to apply the facts; and abstain from interfering with the verdict unless it is quite clear that the jury has reached a seriously erroneous result. The judge's duty is essentially to see that there is no miscarriage of justice. If convinced that there has been, then it is his [or her] duty to set the verdict aside; otherwise not.

 574 F.2d at 684 (citing 6A Moore's Federal Practice P 59.08[5], at 59-160-59-161 (1973)). A district judge may not grant a new trial simply because he or she disagrees with the verdict. Id at 685. "The trial judge is free to weigh the evidence himself [or herself] and need not view it in the light most favorable to the verdict winner." Id. at 683 (citations omitted). The Second Circuit will reverse a district court's denial of a motion for new trial only if there has been an abuse of discretion. Ball v. Interoceanica Corp., 71 F.3d 73, 76 (2d Cir. 1995)(citing Blissett v. Coughlin, 66 F.3d 531, 535 (2d Cir. 1995)). An abuse of discretion includes the granting of a new trial when "'there is no great weight of the evidence in any direction.'" Williams v. City of Valdosta, 689 F.2d 964, 976 (11th Cir. 1982)).

 The plaintiff has set forth several arguments which she claims entitle her to a new trial. First, Bruneau asserts that she was unable to establish that she was the victim of unwelcome sexual harassment because the child witnesses called presented false testimony due to an atmosphere of coercion created in part by the presence in the courtroom of their former teacher, principal, and superintendent during their testimony. Second, plaintiff contends that she did in fact establish that she was harassed due to her gender. Third, Bruneau contends that the coercive atmosphere which resulted in false testimony prevented her from establishing the third element of her case which required a showing that she was subjected to an intimidating, hostile, abusive, or offensive educational environment. Fourth, plaintiff contends that the Court erred by holding that the proper standard of notice in this case was actual, not constructive notice, and that she did in fact establish notice. Finally, Bruneau submits that the standard for remedial action taken by the School, ...

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