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COLBERT v. FURUMOTO REALTY

June 1, 2001

WARREN R. COLBERT AND MARIE JOHNSON-COLBERT, PLAINTIFFS,
v.
FURUMOTO REALTY, INC. AND SELINA KIM, DEFENDANTS.



The opinion of the court was delivered by: William C. Conner, Senior District Judge.

OPINION AND ORDER

Plaintiffs Warren R. Colbert and Marie Johnson-Colbert, African Americans, brought this action against defendants Furumoto Realty, Inc. ("Furumoto Realty"), Selina Kim, and Kapo Kasanda*fn1 pursuant to 42 U.S.C. § 1981, 1982 and N.Y. EXEC. LAW §§ 296.3(b), 296.5(a), and 297(4) for housing discrimination based upon race. On January 11, 2001, after a three-day trial, the jury returned a verdict in favor of plaintiffs in the amount of $5,000 in compensatory damages and $30,000 in punitive damages, for a total award of $35,000. Defendant Furumoto Realty now moves for judgment as a matter of law pursuant to FED. R. CIV. P. 50(b) or, in the alternative, for a new trial and to strike the punitive damages award pursuant to FED. R. CIV. P. 59. Plaintiffs cross-move for attorneys' fees and costs in the amount of $78,092.10 pursuant to 42 U.S.C. § 1988. For the reasons stated hereinafter, defendant Furumoto Realty's motion is denied and plaintiffs are granted attorneys' fees and costs in the amount of $49,399.96.

BACKGROUND

Prior to November 1999, Kasanda, fee owner of a single-family house located on Sunset Drive in White Plains, engaged the services of defendant Furumoto Realty and its agent, defendant Kim, to find a residential lessee. The house was listed on the Westchester Multiple Listing Service with a rental price of $3,300 a month for two years. Kasanda is African, the president of Furumoto Realty is Japanese and defendant Kim is Korean.

In November 1999, after viewing the listing of Kasanda's home, Mary Searle, a real estate agent for Century 21 Mancuso Realty, arranged to show the house to Mrs. Johnson-Colbert. After Mrs. Johnson-Colbert inspected the house, Searle contacted defendant Kim to notify the latter that her clients were interested in renting the property. At this time, defendant Kim asked Searle whether plaintiffs were Italian or Asian. Defendant Kim also allegedly asked whether plaintiffs were African American and said that if they are African American, then "there was going to be a problem because there were no blacks on Sunset and that the neighbors would be very upset." (Trial Tr. at 39.) Searle then informed defendant Kim that her clients were African American, but nevertheless wanted to rent the house. Defendant Kim contends that she never asked whether the plaintiffs were African American, but that information was supplied voluntarily by Searle. (Id. at 233-34.)

Allegedly defendant Kim initially refused to allow plaintiff Mr. Colbert to view the inside of the house, but on November 14, 1999, changed her mind, stating that "he might not even like it anyway, so yes, you can go in." (Id. at 43.) Mr. Colbert was shown the inside of the house and expressed an interest in renting it for the listed price. (Id. at 378-79.) At this time, defendant Kim informed Searle that the terms had changed from $3,300 per month for two years to $3,300 per month for the first year, $3,500 per month for the second year and a $175 gardening fee. Plaintiffs rejected this proposal as "unacceptable." (Id. at 53, 379.) The house was subsequently rented to a corporation for eleven months at $3,500 per month with $150 for gardening; the actual tenant was Caucasian. (Id. at 199, 222, 246-49.)

In May 2000, after the house was rented, defendant Kim wrote a letter to the Westchester County Board of Realtors in response to a housing discrimination grievance filed by Searle against defendants. In that letter she admitted that she asked whether plaintiffs were "Italian . . . I wanted to hear if they had a steady job. I asked Mary Searle are they branch officer from Asia?" (Mednick Aff. Opp. Mot. New Trial ¶ 3(a), Ex. 6.) She also stated that she received information regarding plaintiffs' credit history and that they seemed like good tenants, but that Searle never called back to discuss Kasanda's offer. (Id.)

At trial, defendant Kim testified that she inquired into plaintiffs' background because the majority of her tenants are corporations. Her inquiry was made in an attempt to determine whether she was dealing with a corporation with a budget limitation. (Trial Tr. at 156-57, 233.) However, she claims that she thought that, because of her Korean accent, Searle might not understand her question and attempted to clarify her intent by asking whether plaintiffs were Italian or Asian (id. at 156-57, 239-41); although what she really wanted to know was whether they were employed by an Italian or Asian corporation. (Id. at 239-41.)

DISCUSSION

I. Defendant Furumoto Realty's Rule 50(b) Motion

Pursuant to FED. R. CIV. P. 50(a)(2), a party may make a motion for judgment as a matter of law "at any time before submission of the case to the jury" and at which time must "specify the judgment sought and the law and facts on which the moving party is entitled to the judgment." If such motion is denied, then pursuant to FED. R. CIV. P. 50(b), the moving party must renew its request for judgment as a matter of law "at the close of all the evidence" and "no later than 10 days after entry of judgment." It is well settled that the failure to comply with the procedural requirements set forth in FED. R. CIV. P. 50(b) precludes the renewed motion submitted subsequent to trial. See Pahuta v. Massey-Ferguson, Inc., 170 F.3d 125, 129 (2d Cir. 1999). These procedural requirements may be excused if the trial court indicated that the motion for judgment as a matter of law need not be renewed at the close of all the evidence and "the party opposing the motion could not reasonably have thought that the movant's `initial view of the insufficiency of the evidence had been overcome and there was no need to produce anything more in order to avoid the risk of such judgment.'" Id. (quoting Best Brands Beverage, Inc. v. Falstaff Brewing Corp., 842 F.2d 578, 587 (2d Cir. 1987)). It may also be excused if "in order to `prevent a manifest injustice' in cases `where a jury's verdict is wholly without legal support.'" Pahuta, 170 F.3d at 129 (quoting Varda, Inc. v. Insurance Co. of North America, 45 F.3d 634, 638 (2d Cir. 1995)).

As a threshold matter, we must decide if the procedural requirements have been satisfied. Plaintiffs argue that defendant Furumoto Realty failed to comply with Rule 50(b) because it moved for judgment as a matter of law at the close of plaintiffs' evidence but failed to renew its motion at the close of all its evidence. Indeed, plaintiffs contend that after the conclusion of their direct case, defendant Furumoto Realty called Kasanda in its own case. We are puzzled by this allegation.

In this case, defendant Furumoto Realty moved to dismiss the action at the close of plaintiffs' case based upon plaintiffs' "failure to make out a prima facie case." (Trial Tr. at 437.) However, neither of the defendants called any witnesses to the stand after the motion was made. Indeed, Kasanda testified out of turn on the day prior thereto. (Id. at 186-207.) Therefore, it appears that defendant Furumoto Realty did make its motion at the close of all the evidence.

However, this does not end the inquiry. Plaintiffs also argue that defendant Furumoto Realty raised new issues in its memoranda of law that were not raised pre-verdict. This argument is not without merit. A Rule 50(b) motion may only be made on the basis of grounds that were specifically raised at the close of evidence. See Lambert v. Genesee Hosp., 10 F.3d 46, 53-54 (2d Cir. 1993). "The motion `must at least identify the specific element that the defendant contends is insufficiently supported.'" Pittman v. Grayson, 149 F.3d 111, 119 (2d Cir. 1998) (quoting Galdieri-Ambrosini v. National Realty & Dev. Corp., 136 F.3d 276, 286 (2d Cir. 1998)). Although the specificity requirement must be viewed in the context of the entire colloquy, see Wimmer v. Suffolk County Police Dep't, 176 F.3d 125, 136 (2d Cir. 1999), "[a] generalized challenge is inadequate." Pittman, 149 F.3d at 119.

In this case, defendant Furumoto Realty's motion for judgment as a matter of law did not satisfy the specificity requirement under Rule 50(b). The entire relevant colloquy was as follows:

THE COURT: Do you want to make your application now, Mr. Lovett, or would you prefer to do it in the morning?

MR. LOVETT: I can do it now. It will be very short.

THE COURT: All right.

MR. LOVETT: I simply move to dismiss this case for failure to make out a prima facie case.

THE COURT: I'll reserve decision on that motion.

MR. LOVETT: Thank You.

(Trial Tr. at 436-37.)

In this renewed motion for judgment as a matter of law, defendant Furumoto Realty contends that because plaintiffs rejected Kasanda's counteroffer of $3,300 per month for the first year and $3,500 per month for the second year with $175 in gardening fees, plaintiffs terminated the negotiations between the parties. However, the colloquy between defense counsel and the Court did not identify this issue as the one as to which defendant Furumoto Realty contends there was insufficient evidence for the jury to return a verdict in favor of plaintiff. See also Piesco v. Koch, 12 F.3d 332, 341 (2d Cir. 1993) (holding that the statement "[d]efendants move for a directed verdict" failed to put the plaintiff on notice of the deficiency in its proof). The purpose of the specificity requirement is to give the non-moving party notice of the defects in its proof so that it may cure such defects before the case goes to the jury. See Galdieri-Ambrosini, 136 F.3d at 286; Samuels v. Air Transp. Local 504, 992 F.2d 12, 14 (2d Cir. 1993). It is clear that the vague statement made by defense counsel did not put plaintiffs on notice of any specific defects in their proof. Because the specificity requirement was not satisfied, judgment as a matter of law may not be granted unless the result is "required to prevent manifest unjustice."' Galdieri-Ambrosini, 136 F.3d at 287 (citations omitted).

In this case, there was evidence that plaintiffs accepted Kasanda's original lease terms, but rejected Kasanda's higher counteroffer. However, that does not preclude plaintiffs from asserting their civil rights with respect to defendant Kim and Furumoto Realty. There was evidence from which the jury could reasonably conclude that defendant Kim blocked plaintiffs' efforts to rent 19 Sunset Drive by, inter alia, conveying a lack of inclination to rent to African Americans, imposing higher price terms than those authorized by her principal, see infra Part II, and delaying Mr. Colbert's viewing of the ...


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