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HART v. WESTCHESTER COUNTY DEPARTMENT OF SOCIAL SERVICES

United States District Court, S.D. New York


April 23, 2004.

HERBERT HART, Plaintiff, -against- WESTCHESTER COUNTY DEPARTMENT OF SOCIAL SERVICES, Defendant

The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge

MEMORANDUM AND ORDER

A jury trial commenced for the above-referenced action on March 8, 2004, and was terminated on March 9, 2004. Plaintiff, Herbert Hart ("Hart"), proceeding pro se has made an application, pursuant to Fed.R.Civ.P. 59, that a new trial be held because "perjured testimony was presented at trial and . . . the perjury went to the jury uncorrected due to errors by the defendant's attorney and or the court." The plaintiff also alleges that "the defendant's attorney knowingly solicited the perjured testimony or . . . failed to correct testimony [he] knew was perjured." The plaintiff maintains that the misconduct he ascribes to counsel to the defendant violated his due process right to a fair trial and, thus, his application for a new trial should be granted.

For its part, the defendant opposes the motion. It points out that no witnesses were called to testify at the trial on behalf of the defendant. The only testimony presented to the jurors at the trial was that of the plaintiff and that of a case worker employed by the defendant whom the plaintiff called as a witness to testify on his behalf. The defendant notes that the plaintiff did not elicit from the case worker any testimony concerning the disputed claims that were the subject matter of the trial. Moreover, according to the defendant, given that the plaintiff failed to identify, in any way, the specific testimony which he alleges constituted perjury, the instant application should be denied.

  Fed.R.Civ.P. 59, in its most pertinent part, provides as follows:

A new trial may be granted to all or any of the parties and on all or part of the issues (1) in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States . . .
Fed.R.Civ.P. 59(a).

  An application for a new trial may be granted based upon the ground that a trial witness willfully testified falsely with respect to a material fact especially where the perjured testimony was induced by the adversary party or the false testimony was that of the adversary party. See Taylor v. Picketing, 324 F.2d 655, 657 (5th Cir. 1963). In the case at bar, the plaintiff has failed to identify what testimony, if any, was "perjured testimony" and has failed to identify the witness from whom the alleged "perjured testimony" was elicited. Furthermore, there is no evidence in the record that the alleged "perjured testimony" concerned a material fact in issue at the trial. Under the circumstances, the plaintiff's motion, made pursuant to Fed.R.Civ.P. 59, is denied.*fn1

  SO ORDERED.


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