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May 11, 2000


The opinion of the court was delivered by: Brieant, District Judge.


In compliance with the Mandate of the Court of Appeals in Leather v. Ten Eyck, 180 F.3d 420 (2d Cir. 1999), the issues in this case were tried to a jury beginning on February 7, 2000, resulting in a verdict on February 15, 2000 in favor of Plaintiff against defendants Ten Eyck, Lindert, Restivo and Thoubboron, as well as the County of Putnam. Compensatory damages in the amount of $200,000 were awarded against all Defendants jointly and severally, and punitive damages were imposed in the amount of $2,000 against Michael Ten Eyck, $3,000 against Thomas Lindert, $5,000 against Carmine Restivo, and $435,000 against Robert Thoubboron. The Court had dismissed the case against defendant Daniel Stephens at the close of Plaintiffs case for failure of proof.

Defendants now move for judgment as a matter of law dismissing all the claims, for a new trial on the issues of liability and damages, or in the alternative for a remittitur of the damages award. The motion was fully submitted for decision on March 17, 2000, and decision was deferred pending settlement. Although the case was settled by agreement of counsel, and the settlement approved by the County Legislature, its Resolution to do so was vetoed by the County Executive, and thereafter the case was reopened.*fn1 Familiarity of the reader with all prior proceedings had herein and with the prior decision of the Court of Appeals is assumed.


Plaintiff was the Fire Coordinator for the County of Putnam serving at the pleasure of the County Legislature. The individual Defendants were all members of the County Sheriffs Department, Mr. Thoubboron being the elected Sheriff of the County and head of that Department. The lawsuit seeks to recover damages for violation of Plaintiffs right to be free from selective enforcement of the laws, guaranteed to him by the Fourteenth Amendment of the United States Constitution and also to be free from official retaliation for expressing his opinion on a matter of public concern. Plaintiff contended and the trial jury found that in retaliation for expressing his opinion concerning the implementation of a new E-911 system in Putnam County contrary to the opinion of the Sheriff, he was targeted for selective enforcement of the New York State Vehicle and Traffic Laws relating to drunk driving. This Court is considering the motion must give full credence to the jury's verdict without regard to the Court's own opinion as to the truthfulness of any witness, or as to the inferences to be drawn from the evidence.

As a perquisite of his employment as the Fire Coordinator for the County, Mr. Leather was given the 24 hour use of a County owned automobile. Many other County officials and employees enjoyed the same benefit. The County had a rule against operating its vehicles after having imbibed liquor in any quantity.

Mr. Leather, apparently a man of steady habits, followed the regular practice of going to dinner with his wife on Friday evenings at the "Middlebranch," a restaurant and bar since closed, named after the New York City Reservoir of the same name, which was patronized by local officials, and was apparently a place where the elite meet to eat and drink.

On two prior occasions, defendant Ten Eyck, whose specialty was enforcing the laws against driving while impaired with alcohol, stopped Mr. Leather when he was driving home from the Middlebranch Restaurant.*fn2 On the first such occasion in the summer of 1994, Deputy Ten Eyck warned Mr. Leather, and ordered him to have his wife drive home. On the second occasion he administered three inconclusive breathalyzer tests and called in a village police officer to the scene. No ticket was issued to Mr. Leather and he was not arrested.

Plaintiffs witness David Ryan served as a deputy Sheriff in Putnam County between December 1983 and June 1995. He testified that some time in the late 1980's or early 1990's, at a change of shift, Captain Restivo gave an order to arrest John Leather for drunken driving. The jurors could have inferred that this took place in 1994 because Captain Restivo also mentioned Michael Lambiase as a target and both Leather and Lambiase were on the other side of the then existing public controversy as to how the E-911 system should be administered. Plaintiff claimed others were similarly targeted during this period. There was no evidence in the case of any intention to charge innocent persons with offenses because they engaged in policy disputes with the Sheriff. Rather, the professional courtesy ordinarily extended to public officials in vehicle and traffic matters was withdrawn and the rank and file officers were told that it was "open season" on John Leather and others. While there is no direct evidence that Lindert or Ten Eyck were present when Restivo gave the order, the jury could infer, in the context of a civil trial, that in the day to day operation of a quasi-military outfit, all the rank and file came to know of this.

It was the Plaintiff's initial theory in the case that, knowing of his habit of drinking with dinner at the Middlebranch on Friday evenings, the Sheriffs office had staked out the place, and that defendant Stephens was present in the bar for the purpose of observing Leather and telephoning headquarters when Leather drove home. There was no credible evidence at trial to support that theory. Stephens remained in the Middlebranch long after Leather had left, and there was no evidence that he or anyone else telephoned headquarters. Ryan testified, in the passive mode beloved of law enforcement witnesses, that "a phone call was made." TT at 66. He did not testify that he received or overheard such a phone call, or that Stephens made the call, and in truth Mr. Ryan was on leave and not present in headquarters on the night of December 2, 1994. TT at 449. This was pure hearsay entitled to no weight.

Ryan admits that he had made a public statement to the effect that if he won the lottery, he would spend a million dollars to smear the Sheriff. This information was before the trial jury, and while this Court is somewhat skeptical of Ryan's testimony, the sole judges of credibility and the disputed fact issues were our trial jurors. The trial jurors had the right to believe Ryan's testimony, except as to those events where he was clearly not present and testifying solely based on hearsay or speculation. The jury chose to do so, rejecting the contrary testimony offered by the defendants.

Philip Prinz testified by deposition, portions of which were read to the jury commencing at page 284 of the February 8, 2000 transcript. Mr. Prinz became Undersheriff in January of 1986 and in March of 1996 was told by the Sheriff that he should resign. Prinz admits that he is a friend of Plaintiff and has a dislike for the Sheriff for forcing his retirement. Prinz testified to the public dispute over the E-911 system between Leather and the Sheriff. He also testified that the following occurred at a staff meeting prior to the arrest of Plaintiff:

"I recall the Sheriff stating at a staff meeting that John [Leather] was a drinker, and that it wouldn't take too much effort to find him and arrest him for DWI."

TT at 297. This occurred just after the public hearings concerning the E-911 system. While Prinz's credibility is also suspect, the jury had the right to believe him, and this Court for purposes of a post-verdict motion cannot substitute its own view ...

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