The opinion of the court was delivered by: William C. Conner, Senior District Judge.
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.
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
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
MR. LOVETT: I can do it now. It will be very short.
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.
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 ...