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May 17, 2000


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 asked defendant Tavernier if he could use the telephone in order to call the police to tell them that his truck was broken down on the highway and that he needed emergency help. Tr. 54. Defendant Tavernier ignored plaintiff's first request, telling plaintiff to find another phone. Tr. 54-55. Plaintiff waited and then again told Tavernier that he had an emergency and would appreciate it if Tavernier let him use the phone or if Tavernier would dial the emergency (911) personnel for plaintiff. Tr. 55-56. Tavernier then swore at plaintiff and told plaintiff that he was not going to get to use the phone. Tr. 56. Plaintiff made a third request, explaining that the situation was desperate because somebody was going to hit the truck. Tr. 56-57. Again, Tavernier swore at plaintiff and refused to let plaintiff use the phone. Tr. 57.

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 store.

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.


A. Motion to Recuse

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

B. Motions for Sanctions

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.


The City moves for reconsideration of this Court's original assertion of jurisdiction over the indemnification claim, maintaining that the only forum for this claim is an Article 78 proceeding in New York State court. The City's assertions appear disingenuous, and again brazen, as the City specifically stipulated that there was no dispute as to this Court's jurisdiction in the Joint Pre-Trial Order, dated March 1998. The Pre-Trial Order states the following: "The jurisdiction over the cross-claims asserted by defendant, Augusto Tavernier against the City of New York, which are based upon State Law, exists by supplemental jurisdiction, pursuant to 28 U.S.C. ยง 1367(a). . . . The jurisdiction of this Honorable Court is not disputed." p. ...

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