share just three (3) peremptory challenges despite the fact that
a conflict of interest existed between defendant Tavernier and
co-defendant, City of New York." Avallone Aff., p. 20, § f. This
is the extent of defendant's description of the alleged
reversible error. First, pursuant to 28 U.S.C. § 1870, the Court
has discretion to consider several defendants as a single party
for the purposes of making challenges, which the Court did.
Second, and more notably, defendants do not acknowledge that no
party objected to this arrangement and defendants chose not to
exercise their last peremptory challenge. In sum, defendants
waived one peremptory challenge at trial and now apparently argue
reversible error due to being allocated too few peremptory
challenges — this position is untenable.
Defendants also attempt to blame this Court for admitting the
criminal court verdict sheet, (Avallone Aff. p. 20, § k.), and
the Newsday Article of the Event, dated October 13, 1994,
(Avallone Aff., p. 21-22, § t.), when all parties stipulated in
the Joint Pre-trial Order to the admissibility of these two
exhibits into evidence. (Part III(A), 14, 26). These assertions
This Court has reviewed defendants' remaining contentions and
finds them to be meritless as well. Thus, the Defendant City's
and Defendant Tavernier's motions for a new trial, must be, and
hereby are, denied.
VI. MOTION FOR REMITTITUR
In reviewing a claim for remittitur, the Court must view the
evidence and draw all factual inferences in favor of the verdict
winner. Wheatley v. Ford, 679 F.2d 1037, 1039 (2d Cir. 1982).
The Court must also accord "substantial deference to the jury's
determination of factual issues." Scala v. Moore McCormack
Lines, Inc., 985 F.2d 680, 683 (2d Cir. 1993) (citations
omitted). The traditional federal standard for remittitur is that
a remittitur should be granted only "where the damages awarded
are so excessive `as to shock the judicial conscience.'" Scala,
985 F.2d at 683 (citing Wheatley, 679 F.2d at 1039).
Furthermore, the Second Circuit has made clear that the task of
the Court is not to balance the number of high and low awards and
reject the verdict if the number of lower awards is greater, but
rather to inquire whether the verdict is within a reasonable
range. Ismail v. Cohen, 899 F.2d 183, 187 (2d Cir. 1990).
Defendants argue that this Court should apply New York's
standard for reviewing jury verdicts. This standard provides that
a jury's verdict will be set aside if it "deviates materially
from what would be reasonable compensation," pursuant to CPLR §
5501(c). However, as the Second Circuit has held, jury verdicts
for claims arising under a federal statute must be held to the
traditional federal standard of review. Scala, 985 F.2d at 683,
n. 7; See also Wheatley, 679 F.2d at 1039 (applying federal
standard to claim arising under Civil Rights Act, Section 1983).
Assuming arguendo that the New York standard applies, this
Court still finds that the awards may not be said to deviate
materially from what would be reasonable compensation.
Under New York law, damages for false arrest are to compensate
for injuries from the beginning of custody to arraignment, and
damages for malicious prosecution are to compensate for injuries
after arraignment. Peterson, 995 F. Supp. at 320.
This award of $300,000 for false arrest and detention until
arraignment does not shock the conscience in light of the
circumstances. See Ismail, 899 F.2d at 187 (reversing district
court's remittitur on jury award for compensatory damages
totaling $650,000 and punitive damages totaling $150,000 due to
the "misconduct of a New York City policy officer" resulting in a
successful Section 1983 claim, and battery, false arrest,
malicious prosecution and abuse of process state claims); Hughes
v. Patrolmen's Benevolent Ass'n,
850 F.2d 876, 883 (2d Cir. 1988) (affirming overall damages of
$575,000 against police officer Burns and Police Benevolent
Association, including $125,000 for intentional infliction of
emotional distress by police officer even though no permanent
harm resulted from harassment). The jury's award of $300,000 is
therefore within a reasonable range. Moreover, defendants have
not set forth any case with similar facts to this one in support
of their motion for remittitur. Particularly lacking is any case
in which the conduct of the defendant officer was as egregious as
in the instant case.
Plaintiff, concerned for the dangers his tractor-trailer on the
expressway posed, attempted to gain police help and remedy the
dangerous condition. As an innocent citizen, seeking help from
police, plaintiff was not helped but rather obstructed by
defendant police officer. Plaintiff was then sworn at repeatedly
by this officer, threatened with death, threatened with a gun,
and held at gunpoint during this false arrest. Plaintiff suffered
great humiliation, indignation, and fear in being arrested and
detained under these circumstances. Moreover, an article was
published on the front page of the Long Island section of Newsday
soon thereafter stating that plaintiff was arrested for
assaulting a police officer. The harm to plaintiff's reputation
was great — plaintiff was alienated by friends and co-workers.
This arrest also led to a prosecution. Considering all these
factors, especially the obstructing conduct of the defendant
officer Tavernier, the jury's verdict may not be said to shock
The award of $322,000 for malicious prosecution also does not
shock the conscience. Due to this prosecution, plaintiff suffered
loss of sole custody of his then fourteen year old daughter, loss
of a well paying job (he has since always made at least $15,000
less than his original job); plaintiff was also forced to endure
more public humiliation, 28 criminal court appearances including
a nine day criminal trial, legal expenses, and understandably,
the pain and suffering from the anxiety of facing possible
incarceration. See Vitale v. Hagan, 132 A.D.2d 468,
517 N.Y.S.2d 725 (1st Dep't 1987), modified on other grounds,
71 N.Y.2d 955, 528 N.Y.S.2d 823, 524 N.E.2d 144 (1988).
The court in Vitale affirmed a $750,000 in damages for
malicious prosecution in a case very similar to the instant case.
Plaintiff Vitale and defendant New York City police sergeant
Hagan had an altercation involving a minor automobile mishap.
This altercation resulted in police sergeant Hagan arresting
Vitale and charging him with assault and resisting arrest. The
criminal charges were later dismissed.
Plaintiff Jocks suffered more from the malicious prosecution
claim than the plaintiff in Vitale. In the instant case, the
criminal charges were not dismissed, but rather plaintiff was
forced to submit to a nine day criminal trial by a jury.
Moreover, plaintiff lost sole custody of his daughter and his
job. Thus, the subsequent jury award of $322,000 is within range
of prior awards and may not properly be remitted.
The Defendant City's and Defendant Tavernier's motions for
remittitur must be, and hereby are, denied.
VII. QUALIFIED IMMUNITY
Qualified immunity is an affirmative defense, which, if proven
shields government employees from liability for civil damages
insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person
would have known. Lennon v. Miller, 66 F.3d 416, 420 (2d Cir.
1995). No party disputes that false arrest does not violate
established statutory or constitutional rights. However, even if
plaintiff's rights are clearly established, the actor is
nonetheless protected from liability if it was "objectively
reasonable" for him to believe that his actions were lawful at
the time of the acts. Id.
Defendants would have the Court believe that reasonable persons
in defendant's position would not have understood that their
conduct (i.e. obstructing plaintiff from calling 911, swearing at
plaintiff, threatening plaintiff verbally and with a gun, then
arresting plaintiff in his attempt to flee, and misrepresenting
facts to Nassau Police) was within the scope of the established
prohibition. This conduct is not, to say the least, "objectively
reasonable." See Ricciuti v. NYC Transit Authority,
124 F.3d 123, 128-131 (2d Cir. 1997) (reversing grant of summary judgment
in a Section 1983 case based on qualified immunity because if
police knew no probable cause and police falsified evidence, not
objectively reasonable to arrest and to prosecute). Defendant
Tavernier is therefore not entitled to the defense of qualified
Plaintiff Thomas Jocks' motion for sanctions against Defendants
City of New York and the New York City Police Department is
GRANTED. The City's cross-motion for sanctions is DENIED. The
City's motion for recusal of this Court is DENIED.
The City's motions for reconsideration of this Court's
assertion of jurisdiction over the indemnification cross-claim is
DENIED. Defendant Tavernier's motion for indemnification on his
cross-claim against the City is DENIED.
The City's motions and Tavernier's motions: (1) for vacatur of
the judgment against defendant Tavernier as a matter of law; (2)
for a new trial; and (3) for remittitur of judgment against
defendant Tavernier are all DENIED.