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JOCKS v. TAVERNIER
May 17, 2000
THOMAS JOCKS PLAINTIFF,
AUGUSTO TAVERNIER, MICHAEL A. OGGERI, NEW YORK CITY POLICE DEPARTMENT, CITY OF NEW YORK, NASSAU COUNTY POLICE DEPARTMENT AND THE COUNTY OF NASSAU, DEFENDANTS.
The opinion of the court was delivered by: Platt, District Judge.
Prior to all of the present motions before this Court, there
were not one but two jury trials, both resulting in verdicts for
the plaintiff herein Thomas Jocks. The first was a criminal case,
in October of 1995, against Jocks brought by Nassau County for an
alleged assault on the defendant Police Officer Augusto Tavernier
herein and an alleged criminal possession of a weapon based on
the latter's complaint and testimony, and the second was the case
at bar, in February and March of 2000, brought by the plaintiff
Jocks for violation of his civil rights and constitutional rights
by reason of the false arrest and the malicious prosecution of
him. In both cases, the key question was whether the jury
believed the testimony of plaintiff or defendant Tavernier on a
telephone incident (see infra pages 308-09) which formed the
basis of the two verdicts.
In addition, at the heart of the City's motion to recuse was
this Court's sanctioning of the City for the conduct of the New
York City Police Department, of the witness/Police Officer
Captain Morgan and other employees of that Department and of the
Corporation Counsel's Office for failure to comply with two
subpoenas served on the New York City Police Department. These
had been addressed to Captain Morgan and served on his office on
the Friday afternoon before the commencement of trial. Captain
Morgan worked in his office until late that evening. All of the
foregoing City employees refused to take responsibility for
Captain Morgan's departure on Sunday*fn1 for Las Vegas and for
his failure to appear on the opening of the trial. The
Corporation Counsel Office was aware of the fact that the
plaintiff and Nassau County had listed him as one of their
witnesses in the pretrial order for the first three days of the
trial. During those first three days, the Corporation Counsel's
Office attempted to disclaim any knowledge of his whereabouts or
any responsibility for his failure to appear. It was learned,
however, as indicated above, that Captain Morgan had left for Las
Vegas on the Sunday night (or Monday morning) before the trial
commenced. Finally, on Wednesday morning, this Court ordered the
Corporation Counsel to produce Captain Morgan as the last witness
for the plaintiff's case on Thursday morning. Even though the
Corporation Counsel had knowledge that the entire day would be
lost for the jury trial if he was not produced at that time, he
did not appear and the Corporation Counsel still disclaimed any
responsibility for his non-appearance. As a consequence, the
Court sanctioned the City for all of the costs and expenses
caused thereby. By any measure this was a mild punishment imposed
only on the corporate defendant and not on its individuals who
perpetrated the contempt on the court and the jury.
Now subsequent to these trials the following motions are before
this Court for decision:
Plaintiff Thomas Jocks makes a motion for sanctions against
Defendants City of New York and the New York City Police
Department ("City"). This motion will be addressed together with
the City's cross-motion for sanctions and the City's motion for
recusal of this Court from further proceedings in this action.
In addition, the City makes a motion for reconsideration of
this Court's assertion of jurisdiction over defendant Tavernier's
indemnification cross-claim against the City, and defendant
Tavernier makes a motion for indemnification on this cross-claim.
The City and Tavernier further make motions for the following:
(1) vacatur of the judgment against defendant Tavernier as a
matter of law pursuant to Federal Rule of Civil Procedure
("FRCP") Rule 50(b); (2) a motion for a new trial pursuant to
FRCP Rule 59(a); and (3) remittitur of judgment against defendant
Tavernier pursuant to FRCP Rule 59(e).
This is an action with remaining claims for civil rights
violations pursuant to 42 U.S.C. § 1983, seeking redress for
false arrest and malicious prosecution in violation of
plaintiff's constitutional rights under the Fourth, Fifth and
Fourteenth Amendments to the Constitution of the United States.
To the extent relief is sought by plaintiff for false arrest,
this relief lies only under violation of the Fourth Amendment
pursuant to Albright v. Oliver, 510 U.S. 266, 271, 114 S.Ct.
807, 127 L.Ed.2d 114 (1994).
On October 11, 1994, plaintiff Thomas Jocks was operating a
tractor trailer heading east on the Long Island Expressway
("LIE") in Nassau County when his tractor trailer broke down just
west of Round Swamp Road. Tr. 47. Plaintiff did his best to pull
the truck off the highway. Tr. 47. However, some four feet of the
back of the trailer was still protruding onto the highway. Tr.
47. Plaintiff removed the trailer from the front cab in order to
try to get the cab further forward for safety reasons. Tr. 48.
Plaintiff then placed emergency triangles before the truck to
warn oncoming traffic of the hazard. Tr. 48-49. Realizing that
the protruding truck constituted a very dangerous situation,
plaintiff tried to wave down help from oncoming traffic with no
avail. Tr. 49. Plaintiff saw that other trucks were coming over
the hill and swerving out of the way to avoid hitting the
protruding trailer. Tr. 49. Concerned about the danger his truck
posed to drivers, plaintiff ran approximately three-quarters of a
mile to a Mobil Gas Station to use the telephone to call for
help. Tr. 50.
Defendant Tavernier was, and currently is, a New York City
Police Officer. At the time at issue, Tavernier was in plain
clothes, off-duty on his way home and in his car using a public
telephone for a personal call. Tr. 224. As plaintiff saw
Tavernier using the phone, plaintiff first went to the gas
station convenience store and asked the clerk to use the phone.
Tr. 53. Plaintiff told the clerk he had an emergency situation,
that he had a tractor trailer broken down, and that he needed to
call the police. Tr. 53. The clerk spoke little English and told
him several times that he had no phone and to use the phone
outside. Tr. 53. There was only one phone outside, the phone
Tavernier was using. It did not appear that there were any other
buildings or phones nearby. Tr. 55.
Plaintiff, extremely upset that his truck might cause an
accident and that Tavernier would not let him use the phone or
call the police for him, hung up the telephone by depressing the
on/off lever on the phonebox. Tr. 57. Defendant Tavernier threw
the phone at plaintiff, pulled the car forward, got out of the
car, Tr. 57-58, 129, and charged back at plaintiff shouting "if I
can't use the phone — you can't use the phone." Tr. 58.
A struggle ensued in which plaintiff began dialing 911 while
defendant Tavernier tried to hang the phone up by pushing
plaintiff and swearing at him. Tr. 58. Plaintiff again tried to
explain the emergency situation to Tavernier. Tr. 58. Tavernier's
response was to state "why don't I blow your f — ing brains out,"
while revealing a gun. Tr. 58-59. At no time during this incident
had Tavernier stated that he was a police officer. Plaintiff,
then in imminent fear of serious injury, threw the phone in a
backward fashion at Tavernier and ran toward the convenience
store. Tr. 59. Tavernier was struck with the telephone which
caused a minor injury to his lip. Tr. 139. At this point,
Tavernier stated that he was a cop, chased after plaintiff,
shoved the gun to the base of plaintiff's head, and told
plaintiff he was under arrest. Tr. 59. Tavernier then held
plaintiff at gunpoint while escorting him to the convenience
Officer Hartman of the Nassau Police arrested plaintiff based
on Tavernier's complaint. Defendant Oggeri of the Nassau Police
processed plaintiff's arrest. Plaintiff was charged with Felony
Assault and Criminal Possession of a Weapon, i.e., the telephone
handle, and held in custody until his arraignment. Plaintiff was
arraigned and released on bail the next evening.
On October 12, 1994, Newsday, the major paper in the region,
published an article on the front page of the Long Island Section
stating that plaintiff had assaulted a man with a telephone. Tr.
79. Plaintiff was humiliated, as friends and co-workers saw and
commented on the article; these people are no longer in contact
with plaintiff. Tr. 79-80. Plaintiff was required to make 28
criminal court appearances due to this incident. Tr. 73. As a
result, plaintiff claimed he lost his trucking job at TC
Transports in December of 1994. Tr. 73-74. Plaintiff also claimed
he lost sole custody of his then fourteen year old daughter. Tr.
86. Plaintiff experienced difficulty sleeping and driving at
night. Tr. 80, 86, 87. After a nine day trial, the jury returned
a verdict of "not guilty" on all charges against plaintiff. Tr.
85. Plaintiff incurred $20,000 in legal fees due to this criminal
proceeding. Tr. 73.
Thereafter, on July 19, 1996, plaintiff commenced this action
against defendants. On February 28, 2000, trial was commenced. On
March 6, 2000, this Court granted a directed verdict in favor of
defendants Michael A. Oggeri, the County of Nassau and the City
of New York. On March 8, 2000, the jury returned with a verdict
against the remaining defendant, Augusto Tavernier, as follows:
a. that plaintiff was arrested without probable cause in
violation of his constitutional rights;
b. that plaintiff sustained damages caused by the unlawful
arrest in the amount of $300,000;
c. that plaintiff was maliciously prosecuted without probable
cause in violation of his constitutional rights; and
d. that plaintiff sustained damages as a result of the
malicious prosecution in the amount of $322,000.
I. MOTION TO RECUSE AND MOTIONS FOR SANCTIONS
This Court denies the City's motion to recuse for the well
stated reasons in Richard Young's Affirmation, dated April 3,
2000. See ¶¶ 4-16. In brief, as to the Court's comments with
regard to Corporation Counsel, in particular comments addressed
to Patricia Miller, none were made in the presence of the jury.
More importantly, these rebukes were necessary to maintain order
and control over proceedings. A few of Ms. Miller's habits
included repeatedly arguing matters which were previously ruled
upon, refusing to allow other attorneys to speak, although they
patiently waited for her to finish, and once other attorneys
managed to gain the floor, Ms. Miller would continually interject
and speak over the other attorneys.*fn3
As the Second Circuit has held, "the district judge, in
conducting a criminal or civil trial, acts as more than a mere
moderator or umpire. His function is to set the tone of the
proceedings and exercise sufficient control to insure that the
trial will be an orderly one in which the jury will have the
evidence clearly presented." Zinman v. Black & Decker,
983 F.2d 431, 436 (2d Cir. 1993). Any statements made by this Court to
witnesses, were made to recalcitrant witnesses attempting to
avoid asking the question at hand or were made to witnesses
refusing to maintain order and respect for the law.*fn4
Corporation Counsel Patricia Miller's failure to produce
Captain Morgan, to put it mildly, did not enhance her standing
with the Court. She appeared to be in violation of a Court order,
continually disavowed any knowledge of or control over Captain
Morgan, and persistently resisted any Court instructions to gain
knowledge or control over this City employee. Ms. Miller was and
is disingenuous at best when claiming ignorance as to even
plaintiff's desire to call Morgan in light of the following: (1)
Morgan was listed on the Pre-Trial Order as plaintiff's second
trial witness; (2) Morgan was a critical witness as the
commanding officer who took Tavernier's statement the night of
the incident; (3) Mr. Brian Glass, Esq., also of Corporation
Counsel, was personally appraised on February 15, 2000, by Mr.
Young of his intent to call Captain Morgan during plaintiff's
case in chief; (4) Mr. Young's February 16, 2000 letter to
Corporation Counsel naming Morgan as a witness; and (5) the two
outstanding subpoenas requiring Captain Morgan's appearance at
trial starting February 28, 10:00 a.m., which was the first day
of trial. Any ignorance Ms. Miller or the City may have suffered
was due to their own avoidance of any information concerning or
responsibility in producing Captain Morgan for trial.
Ms. Miller was personally appraised during trial on Tuesday,
February 29, 2000, that Morgan was to be called as a witness.
Corporation Counsel then determined that he was in Las Vegas, but
did nothing at the time to secure Morgan's overdue presence at
trial. The next morning, March 1, 2000, at 9:30 a.m., this Court
then had to order Corporation Counsel to produce Captain Morgan
the next morning, pursuant to the two outstanding subpoenas — he
was not produced. The attorneys and jury were then dismissed, as
this witness was the last witness in plaintiff's case in chief. A
whole day of trial was lost and everyone incurred substantial
costs and expenses as a result thereof. The case had to then be
adjourned until Monday, March 6, 2000.
Ms. Miller should be grateful that the parties did not seek
personal sanctions against her and that the Court only imposes
mild sanctions against the City to pay for the attorneys' and
jury's time, travel, and incidental expenses due to Captain
Morgan's failure to appear. It should also be noted that this
motion for sanctions against the City was joined in support by
counsel for the respective co-defendants, County of Nassau and
Michael Oggeri, by Charles Horn, Esq., and co-defendant, Augusto
Tavernier, by Rocco Avallone, Esq. Using this contemptuous
conduct and this sanction as a platform for a motion to recuse
this Court, is the height of impudence. The motion to recuse is
necessarily denied. The plaintiff's motion for sanctions against
the City is granted, and the City's cross-motion for sanctions
against plaintiff's counsel is denied. A subsequent order with
the specific calculation of sanctions will follow.
II MOTION FOR RECONSIDERATION OF THIS COURT'S JURISDICTION OVER
THE INDEMNIFICATION CROSS-CLAIM