United States District Court, S.D. New York
September 2, 2005.
ALEJANDRO MARTINEZ, Plaintiff,
THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY; POLICE OFFICER PAUL NUNZIATO, SHIELD # 865; POLICE OFFICER PATRICK CALLAGHAN, SHIELD # 816; POLICE OFFICER THOMAS MILLER, SHIELD # 1000, Defendants.
The opinion of the court was delivered by: P. KEVIN CASTEL, District Judge
MEMORANDUM AND ORDER
On February 1, 2000, during his morning commute from New Jersey
to Lower Manhattan, plaintiff Alejandro Martinez was arrested
outside the men's room at the PATH station concourse of the World
Trade Center. He was charged with the crime of public lewdness,
and remained in law enforcement custody for approximately 19
hours before release. Martinez was one of seven men arrested in
separate alleged incidents of public lewdness in a single
restroom of the World Trade Center's PATH station concourse
between the hours of 6:05 a.m. and 8:30 a.m. As factual support
for the charge, each was accused by the arresting officer of
having engaged in public masturbation.*fn1 Mr. Martinez was the only one of the seven arrestees who did
not plead guilty to a reduced charge of disorderly conduct. He
proceeded to trial in state court, and after a one-day bench
trial, he was acquitted of the charge of public lewdness.
Mr. Martinez subsequently initiated this action. He asserted
claims under 42 U.S.C. § 1983 for false arrest and malicious
prosecution. After discovery closed, I set the case for trial.
Defendants filed no motion for summary judgment. On November 18,
2004, after a four-day trial, the jury returned a verdict in
Martinez's favor on his claims against defendants Paul Nunziato,
Patrick Callaghan and the Port Authority of New York and New
Jersey ("Port Authority"), and awarded compensatory damages in
the amount of $1,104,000: $1,000,000 in damages for emotional
distress, mental anguish and loss of liberty on the false arrest
claim, $1,000 in therapy expenses on the false arrest claim,
$100,000 in damages for emotional distress and mental anguish on
the malicious prosecution claim, and $3,000 in legal fees on the
malicious prosecution claim. The jury awarded no damages for
therapy expenses on the malicious prosecution claim, and no
punitive damages against Nunziato or Callaghan.*fn2
Defendants now move, pursuant to Rules 50(b) and 59(a),
Fed.R.Civ.P., for judgment as a matter of law, or, in the alternative,
for a new trial, and for remittitur of the damages awarded to the
plaintiff by the jury.
For the reasons explained below, the defendants' motions for
judgment as a matter of law or for a new trial are denied. The
jury award is remitted to $464,000. Rule 50(b) and 59(a) Standards
Under Rule 50(b), a party may move for judgment as a matter of
law or move for a new trial within ten days of the entry of
judgment. Judgment was entered on November 29, 2004, and on
December 13, defendants timely filed their motions. Rule 6(a),
Fed.R.Civ.P. Rule 50(b) permits the Court to allow the
judgment to stand, to order a new trial, or to direct entry of
judgment as a matter of law. In considering a Rule 50(b) motion,
a court should be deferential to the jury's role as the trier of
fact. In Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133, 150 (2000), the Supreme Court held that a court considering
a Rule 50 motion should review the evidence "taken as a whole."
The trial court weighs all evidence in favor of the non-moving
party, and must not make credibility determinations. Id. "That
is, the court should give credence to the evidence favoring the
nonmovant as well as that `evidence supporting the moving party
that is uncontradicted and unimpeached, at least to the extent
that the evidence comes from disinterested witnesses.'" Id. at
Pursuant to Rule 59(a)(1), a party may move for a new trial in
an action that was tried before a jury. Rule 59 is broadly
worded, and gives the Court discretion to grant a new trial if
the verdict is against the weight of the evidence or if a damages
award is excessive. Wright, Miller & Kane, Federal Practice and
Procedure: Civil 2d §§ 2805-07. A court should not set aside a
jury verdict and grant a new trial unless the verdict was
"seriously erroneous." Piesco v. Koch, 12 F.3d 332, 345 (2d.
Cir. 1993). However, "[u]nlike a motion for judgment
notwithstanding the verdict, a new trial motion may be granted
even if there is substantial evidence to support the verdict."
Bevevino v. Saydjari, 574 F.2d 676, 683 (2d Cir. 1978). As the
Second Circuit has explained: The trial judge, exercising a mature judicial
discretion, should view the verdict in the overall
setting of the trial; consider the character of the
evidence and the complexity or simplicity of the
legal principles which the jury was bound to apply to
the facts; and abstain from interfering with the
verdict unless it is quite clear that the jury has
reached a seriously erroneous result. The judge's
duty is essentially to see that there is no
miscarriage of justice. If convinced that there has
been then it is his duty to set the verdict aside;
Id. at 684.
A conditional order for remittitur under Rule 59 requires a
plaintiff to choose between accepting the reduction of a verdict
found to be excessive, or of submitting to a new trial. See
Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 165 (2d Cir. 1998).
A trial judge has discretion to overturn a jury award for
excessiveness, and to order a new trial if the successful
plaintiff refuses to agree to the reduced award. Id. "Where
there is no particular discernable error," the Second Circuit has
held, "a jury's damage award may not be set aside unless `the
award is so high as to shock the judicial conscience and
constitute a denial of justice.'" Id. (quoting O'Neill v.
Krzeminski, 839 F.2d 9, 13 (2d Cir. 1988)).
It is unclear from the defendants' papers the extent to which
their motion relies upon Rule 59(a), as opposed to Rule 50(b).
They contend that the jury's finding of liability on the part of
the Port Authority pursuant to Monell v. Dep't of Social
Services of City of New York, 436 U.S. 658 (1978), was against
the weight of the evidence. The remainder of their motion is
premised entirely on evidentiary rulings made during
trial.*fn3 Nevertheless, I address the motion as seeking
judgment as a matter of law, or, alternatively, a motion for a
new trial. Background
Consistent with Rule 50, I describe the facts of this case in
the light most favorable to Mr. Martinez, the non-moving party.
According to Martinez's testimony, at approximately 6:05 a.m. on
February 1, 2000, he entered the men's room at the PATH train
station at the World Trade Center. (Trial Tr. at 69) He stood at
a urinal, urinated, and departed the men's room. (Trial Tr. at
69) Officers Paul Nunziato and Patrick Callaghan, who are
defendants in this action, then arrested Martinez. (Trial Tr. at
70) Officer Nunziato told Martinez that he had observed him
masturbating in the men's room, an assertion that Martinez
immediately denied. (Trial Tr. at 70) According to Martinez,
Officer Nunziato told Officer Callaghan that he "set a good trap"
when he arrested Martinez. (Trial Tr. at 71) The two officers
directed Martinez to wash his hands, and when Martinez reiterated
his innocence, Officer Nunziato said, "If you want, I can break
your teeth." (Trial Tr. at 76-77) Martinez was placed in a cell
at the WTC PATH Station, where the six additional public lewdness
arrestees were brought that morning. (Trial Tr. at 79) According
to Martinez, Nunziato stated that the men were going to remain
there until the officers finished paperwork and "make our quota."
(Trial Tr. at 79)
Martinez and the other men arrested for public lewdness were
transported to 100 Centre Street for processing. (Trial Tr. at
88) At approximately midnight, Martinez met with an attorney and
appeared before a judge. (Trial Tr. at 90-91) The judge offered
to release Martinez if he would plead guilty to disorderly
conduct. (Trial Tr. at 90-92) Disorderly conduct is a violation
under New York law, not a crime. (N.Y. Penal L. § 10.00(3) and
(6)) After consulting with his attorney, Martinez pleaded not guilty to the public lewdness charge rather than plead guilty to
the disorderly conduct offense. (Trial Tr. at 91-92) Martinez was
released at approximately 1 a.m. (Trial Tr. at 93)
The case against Martinez proceeded to trial before the Hon.
Analisa Torres on September 29, 2000 in the Criminal Court of the
City of New York, New York County. The only trial witnesses were
Martinez and the arresting officers, Nunziato and Callaghan.
Martinez described his emotional state during trial as
"desperate, nervous." (Trial Tr. at 97) Judge Torres found
Martinez not guilty. (Criminal Trial Tr. at 82)
Martinez described his arrest and prosecution as frightening,
and testified that following the arrest, he experienced
difficulty sleeping and became socially withdrawn. (Trial Tr. at
97-99) He stopped attending social gatherings, volunteer
activities, and sporting events. (Trial Tr. at 98) More
generally, he described himself as feeling anxious whenever he
was in the presence of law enforcement officers. (Trial Tr. at
100) Martinez also asserted that he did not visit family members
in Cuba because he feared that his arrest and prosecution would
complicate his passage. (Trial Tr. at 103)
In his complaint, Martinez alleged that the individual
defendants, acting under color of state law, violated his rights
under the Fourth and Fourteenth Amendments to the United States
Constitution, thereby giving rise to a claim under
42 U.S.C. § 1983. He alleged that he was arrested and prosecuted without
probable cause, and that the Port Authority of New York and New
Jersey ("Port Authority") had a de facto policy of
unconstitutionally arresting men without probable cause for
public lewdness at the World Trade Center's PATH station. (2d AC
¶¶ 18-29) Martinez also brought state law claims against the
individual defendants for false arrest, false imprisonment, and
malicious prosecution, and asserted that the Port Authority was liable for
the defendants' conduct under a theory of respondeat superior.
(2d AC ¶¶ 30-37)
This case originally was assigned to the Hon. Loretta A.
Preska, U.S.D.J., who set a discovery schedule and directed the
parties to engage in settlement discussions. In January 2003, the
plaintiff filed his First Amended Complaint ("1st AC") and
Magistrate Judge Eaton established a new discovery schedule. The
action was subsequently assigned to my docket. In an order of
July 9, 2004, I allowed plaintiff to amend his complaint to drop
two claims negligence and conspiracy and to add an
alternative theory to his Monell claim. The Monell claim had
previously been limited to assertions that the defendants
targeted homosexuals for arrest and that the Port Authority
inadequately trained and supervised its law enforcement officers.
The alternate theory asserted that the Port Authority had a
policy, custom or practice of arresting men for public lewdness
at the PATH concourse men's room without probable cause, and
without observing a lewd act capable of being seen by a casual
passerby. (2d AC ¶ 25) Plaintiff's amended pleading ("2d AC") was
filed on July 16, 2004. No request was made by defendants'
counsel to reopen discovery in light of the amendment.
Plaintiff's counsel wrote to me on August 16, 2004 advising
that earlier that day he had received discovery requests from
defendants' counsel, who asserted that defendants would not file
a previously scheduled summary judgment motion until two weeks
after receiving responses to their discovery requests, and then
only if, in defendants' judgment, no further discovery was
necessitated by those responses. In response to the August 16
letter, I ordered as follows: "Defendants' motion for summary
judgment must be filed no later than September 2, 2004 or it will
be deemed waived." (Docket Entry #37, August 20, 2004) By setting the date more than
a month away, I gave defense counsel adequate time to prepare the
motion or to seek leave to conduct the requested discovery.
Defendants' counsel did neither. In a letter dated September 24,
2004, defendants' counsel wrote to the Court stating that he was
unable to file a summary judgment motion because the plaintiff
failed to produce discovery requests that defendants made after
the 2d AC was filed. Counsel for defendant never sought relief
from the discovery cut-off, never brought to the Court's
attention a discovery dispute over the content of his post
cut-off discovery requests (either under Local Rule 37.2 or
otherwise) and never sought relief from my August 20 order. Nor
did defendants' counsel ever adequately explain what additional
evidence the Port Authority required as to its own alleged
pattern or practice. I set a trial date for November 15, 2004.
A jury was impaneled on November 15, 2004 and, after the close
of evidence, it reached a verdict on November 18. On November 18,
the jury returned a verdict finding Officers Nunziato and
Callaghan liable on all claims, and finding that the Port
Authority employed a policy and practice of making arrests on
public lewdness charges without probable cause. (Trial Tr. at
675-79) For the false arrest claims, the jury awarded Mr.
Martinez $1,000,000 for emotional distress, mental anguish, and
loss of liberty, and $1,000 in therapy expenses. (Trial Tr. at
676) The jury also found that Mr. Martinez suffered $100,000 in
damages arising from the emotional distress and mental anguish
caused by his malicious prosecution, and awarded him an
additional $3,000 in legal expenses. (Trial Tr. at 676) The jury
found no liability on the part of Officer Miller, and did not
assess punitive damages against any defendant. Discussion
A. Plaintiff presented evidence sufficient for a jury to find
liability on his Monell claim
The defendants argue that the Port Authority is entitled to
judgment as a matter of law on the plaintiff's Monell claim
against the Port Authority. They assert that Martinez failed to
establish that the Port Authority had an unconstitutional policy
or practice that resulted in a deprivation of the plaintiff's
constitutional rights by arresting men perceived to be gay, or
arresting men without probable cause at the PATH concourse.
To succeed on a claim under Monell v. Dep't of Social Services
of City of New York, 436 U.S. 658, 694-95 (1978), a plaintiff
must establish that a violation of the Constitution occurred
pursuant to official municipal policy. This may be done by
establishing that constitutional rights have been violated
pursuant to a "policy statement, ordinance, regulation, or
decision officially adopted and promulgated by that body's
officers" or "pursuant to governmental `custom' even though such
a custom has not received formal approval through the body's
official decisionmaking channels." Id. at 690-91. However, a
municipality may not be held liable pursuant to a theory of
respondeat superior. Id. at 691.
A custom need not be the result of formally instituted policy.
Id. at 691. The municipality's conduct must, however, be "the
moving force of the constitutional violation." Id. at 694. The
Second Circuit has held that municipal inaction, such as the
persistent failure to discipline subordinates who violate civil
rights, may support an inference of an unlawful municipal policy
under Monell. Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983) (citing Turpin v. Mailet, 619 F.2d 196,
201, 202 (2d Cir.), cert. denied, 449 U.S. 1016 (1982)).
Mr. Martinez submitted evidence sufficient for a reasonable
jury to conclude that his arrest was part of a Port Authority
pattern or practice to conduct "sweep" arrests (which are also
known as "directed enforcements") for the crime of public
lewdness, without regard to probable cause. According to the
testimony of Officer Robert Sbarra, who was the Operations
Captain of PATH system police officers during the time of
plaintiff's arrest, on the morning of February 1, 2000, the
plaintiff was the first of seven men arrested for public lewdness
between 6:05 a.m. and 8:30 a.m. (Trial Tr. at 212) Sbarra's
responsibilities included deploying and monitoring the personnel
under his supervision. (Trial Tr. at 207) The testimony of
Sbarra, as related to arrest statistics for public lewdness,
indicated a pattern in which public lewdness arrests peaked for
brief periods of time, followed by several months in which no
public lewdness arrests were made. During Sbarra's examination by
the defendants' counsel, he testified that on one day in January
1997, 30 public lewdness arrests at one WTC PATH station restroom
occurred in an eight-hour time period. (Trial Tr. at 238) Officer
Sbarra also testified that during another directed enforcement in
February 1997, 30 arrests occurred in an eight-hour period, and
in March 1997, 25 arrests occurred in approximately eight hours.
(Trial Tr. at 238-39) In 1999, there were no public lewdness
arrests for the months of February through December at the WTC
PATH station men's room. (Trial Tr. at 228) From January to April
of 2000, there were 46 public lewdness arrests in the WTC PATH
station men's room, including the seven arrests on the morning of
February 1. (Trial Tr. at 228) Under the express terms of the statute, it is not sufficient
that a person expose private or intimate body parts: they must do
so "lewdly." N.Y. Penal L. § 245.00. As interpreted by the New
York Court of Appeals, the crime of public lewdness "was aimed at
protecting the public in essence, unsuspecting, unwilling,
nonconsenting, innocent, surprised, or likely-to-be offended or
corrupted types of viewers from the sight of offensive
activities and materials." People v. McNamara, 78 N.Y.2d 626,
631 (1991) (holding that the interior of parked vehicle in well
lit area was not a public place). To constitute public lewdness,
the act must take place "(a) in a public place or (b) in private
premises under circumstances in which he may be readily
observable from either a public place or from other private
premises, and with the intent that he be so observed."
Prosecutions for public lewdness may arise from an act of
masturbation or other sexual conduct undertaken in full public
view. See, e.g., Matter of Paul R., 131 A.D.2d 764,
516 N.Y.S.2d 790 (2d Dep't 1987) (noting that if juvenile appellant
had been an adult, he would have been guilty of a public lewdness
offense for openly masturbating in the window of a private
residence while uttering obscene comments); People v. Darryl
M., 123 Misc. 2d 723, 726, 475 N.Y.S.2d 705, 709 (N.Y. City
Crim. Ct. 1984) ("In the instant case, defendant's actions of
repeatedly stroking his covered erect penis in public, in
addition to rubbing his covered erect penis against the buttocks
of three females, in public, is exactly the kind of behavior
which the Legislature intended to encompass by utilizing the
phrase `any other lewd act' in the context of § 245.00.").
The jury considered evidence that the Port Authority conducted
intensive sweeps that resulted in high numbers of public lewdness
arrests during short bursts of time. While, as the defendants
point out, there is nothing per se unconstitutional about law enforcement sweeps, the plaintiff's Monell claim was
premised on the contention that the Port Authority had an
established practice of arresting men for public lewdness in the
men's room at the World Trade Center's PATH station concourse
without regard to probable cause. Officer Nunziato, who arrested
Martinez for public lewdness, testified that he personally
observed Mr. Martinez openly and publicly masturbating at one of
the men's room urinals. (Trial Tr. at 251) By contrast, Mr.
Martinez testified that he merely urinated and had never
masturbated in a public bathroom. (Trial Tr. at 69, 76) The jury
credited the testimony of Mr. Martinez over the testimony of
Officer Nunziato as to the circumstances of the arrest. From Mr.
Martinez's testimony, the jury concluded that Mr. Martinez was
arrested without probable cause.
In his questioning of Officer Miller, the plaintiff's counsel
pointed out that the documentation of the public lewdness arrests
contained nearly identical descriptions of the circumstances
surrounding the acts of public lewdness. (Trial Tr. at 289-91)
Although Martinez was the only one of the seven individuals
arrested on February 1 who testified, the jury had before it the
documents pertaining to each of the arrests, and heard testimony
pertaining to the circumstances of these arrests, which happened
in rapid succession over approximately two-and-a-half hours.
In addition, Mr. Martinez testified that while he was in police
custody, Officer Nunziato explicitly stated that the arrests were
made pursuant to a quota:
Q. Now, during the time that these things were going
on, what was the general demeanor of the police
officers, the three police officers in the room?
A. They humiliated us. . . . And he said, no, you're
going to be here until we finish the paperwork and we
make our quota.
Q. Were there any other conversations that you heard
between well, first of all, who was the police
officer who said that?
A. Nunziato. (Trial Tr. 79-80)*fn4
The jury was entitled to credit Mr.
Martinez's testimony as establishing that the Port Authority had
a custom of performing public lewdness arrests pursuant to a
quota. Moreover, Mr. Martinez testified that Officer Miller said
to Officer Nunziato, "oh, how fast, you caught one really fast,"
to which Nunziato replied, "well, I set a good trap." (Trial Tr.
at 71) The jury also had before it documents describing each of
the seven arrests. The jury was entitled to conclude that the
testimony of the officers was not credible, and that based on the
exhibits and testimony, these arrests occurred without probable
The jury also was entitled to credit the defendants' testimony
that the Port Authority did not train its officers as to the
procedures for conducting directed enforcements. Officer Sbarra
testified that he did not personally provide training as to
public lewdness arrests, and Officer Nunziato testified that he
received no formal training on how to conduct directed
enforcement actions. (Trial Tr. at 237, 243) Officer Callaghan
indicated, however, that he received training from other officers
and from assistant district attorneys. (Trial Tr. at 313)
The defendants' post-trial motion argues that the officers'
lack of training is immaterial to the Monell claim, a
contention that has no basis in law. A municipality's policy or
custom may be demonstrated in its failure to train or supervise
officers. City of Canton, Ohio v. Harris, 489 U.S. 378, 388-89
(1989). Liability attaches "where the failure to train amounts to
deliberate indifference to the rights of persons with whom the
police come into contact." Id. at 388. In Dodd v. City of
Norwich, 827 F.2d 1, 5 (2d Cir. 1987), the Second Circuit held that a Monell claim arose when a
city trained a police officer to handcuff a suspect while holding
a gun, thus posing a risk that the gun could discharge against
the suspect during an altercation. See also Cowan ex rel.
Estate of Cooper v. Breen, 352 F.3d 756 (2d Cir. 2003)
(affirming district court's denial of defendant's summary
judgment motion, since questions of fact existed as to whether
the municipality's training or lack thereof caused officer's
fatal shooting of a fleeing suspect). If a municipality is aware
that inadequately trained employees will enforce a policy, but
elects not to train them, the municipality may incur liability.
Amnesty America v. Town of West Hartford, 361 F.3d 113, 125 (2d
Cir. 2004) (citing City of Canton, 489 U.S. at 387).
Nunziato's testimony made clear that the arrest procedures
employed during a sweep differed from typical arrest procedures,
with paperwork and processing performed on an expedited basis.
(Trial Tr. at 276-77) The jury may logically have inferred that
the practices of the Port Authority during the sweep differed
from the practices used in a routine arrest, and that the
officers were not trained to conduct arrests during a sweep so as
to comport with the constitutional guarantee that a person not be
arrested except upon probable cause to believe that he has
committed a crime.
Although the jury was supplied with evidence sufficient to
conclude that the Port Authority had a custom that led to
widespread public lewdness arrests without regard for probable
cause, it may also have concluded that the Monell violation
arose from a "decision officially adopted and promulgated by [the
Port Authority's] officer?." Monell, 658 U.S. at 690. A single
unconstitutional act may establish Monell liability, provided
that it occurred under the direction of a person whose edicts or
acts reflect official policy. Rookard v. Health & Hosp. Corp., 710 F.2d 41,
45 (2d Cir. 1983). As Judge Lumbard observed, "[t]he difficulty,
of course, lies in identifying those officials whose actions,
because they may fairly be treated as the municipality's own
actions, establish policy. Where an official has final authority
over significant matters involving the exercise of discretion,
the choices he makes represent government policy. An official has
final authority if his decisions, at the time they are made, for
practical or legal reasons constitute the municipality's final
decisions." Id. (citation omitted). Monell liability is not
predicated on whether a given official is a policymaker, but
rather, whether the official has been delegated authority in a
manner that his or her decision may be "fairly attributable to
the municipality." Id. at 45 n. 3.
Nunziato and Miller testified that Sbarra who held the title
of commanding officer at the time directed the sweep of
February 1. (Trial Tr. at 245) Sbarra described his title as that
of "assistant chief, police chief of patrol for the Port
Authority Police." (Trial Tr. at 205) In his deposition, Sbarra
testified that he was the commanding officer of the WTC PATH
station at the time of Martinez's arrest; at trial Sbarra
testified that he was the "operations captain" and reported to a
commanding officer. (Trial Tr. at 205-06) At the time of the
February 2000 sweep, Sbarra had 100 officers working under his
command. (Trial Tr. at 206) He was responsible for police
activity at 13 stations in the PATH system. (Trial Tr. at 207)
Officer Sbarra testified as follows:
Q. Your job overall, one way of saying your job was
you were in charge of addressing criminal activity
that you suspected was going on or came to light in
the PATH train stations?
Q. You were in charge of directing operations to deal
with specific criminal problems that might occur? A. Yes.
Q. One of those problems was public lewdness in some
of the public bathrooms. Is that right?
A. That was one of the problems, yes.
Q. Now, part of your job was to review the arrest
that officers under your command did make, correct?
(Trial Tr. at 208) Given the evidence as to Sbarra's
responsibility over the individual defendants and his decision to
direct sweeps targeted to public lewdness arrests in the PATH
station men's room, the jury, in the context of all other
evidence, could reasonably conclude that he established a policy
that prompted widespread public arrests without regard to
Therefore, considering the trial evidence as a whole, I
conclude that a reasonable jury could have concluded that the
Port Authority had a policy, custom or practice of initiating
public lewdness arrests as part of "sweeps" to clear the
restrooms of persons subjectively viewed by the Port Authority as
undesirable, regardless of whether there was probable cause to
make the arrests.
B. Defendants were not entitled to an instruction regarding
Mr. Martinez's pantomime at the criminal trial
As part of his defense to the criminal charge, Mr. Martinez was
asked by his lawyer at trial "to stand up and simply show us by
pantomime, if you understand what I mean, the motions you made
with your hand as you finished urinating before you zipped up
your pants and left. Just show us how you urinated that day."
(Criminal Trial Tr. at 64) Martinez mimicked the motions he made
while securing his zipper at the men's room urinal. (Criminal
Trial Tr. at 64) After the demonstration, his lawyer at the
criminal trial stated as follows: "Let the record reflect that
Mr. Martinez made a motion that could be misled [sic] as an up
and down, back and forth motion with his hand as he's finished pretending urinating." (Criminal Trial Tr. at 65) I
admitted Martinez's counsel's description of the pantomime from
the criminal trial, but denied defendants' request to have
Martinez engage in a reenactment of the pantomime. This,
defendants assert, was error.
The defendants conducted Martinez's deposition on January 28,
2004, at which point their attorney asked Mr. Martinez to reenact
the pantomime he performed at the criminal trial. Plaintiff's
counsel objected, and the parties telephoned Magistrate Judge
Eaton for a ruling as to whether Mr. Martinez must perform the
pantomime. Magistrate Judge Eaton ruled that it was sufficient
for Mr. Martinez to verbally describe his gestures, and that a
pantomimed reenactment was unnecessary. (Martinez Dep. at 434-5,
Thereafter, defendants' argued that the plaintiff's failure to
perform the pantomimed demonstration was deliberate and that the
defendants were entitled to have the court instruct the jury that
it should draw a negative inference because the plaintiff did not
perform the pantomime. Defendants also argued that Mr. Martinez
should be precluded from reenacting a pantomime performed during
his criminal trial.
I noted that Magistrate Judge Eaton had previously directed
that there be no pantomime, and that the parties had informally
raised the issue at a pretrial conference before me. (Trial Tr.
at 36) I also stated on the record that I had previously upheld
Magistrate Judge Eaton's ruling, and had obtained plaintiff's
counsel's representation that the plaintiff would not rely upon
any in-court pantomime as part of his case. (Trial Tr. at 36) During trial, the defendants' counsel questioned Martinez about
the pantomime gestures in the criminal trial. (Trial Tr. at 187)
Mr. Martinez confirmed that he motioned with his hands to reenact
the appearance of zipping up his pants once he finished
urinating. (Trial Tr. at 187, 196) At that time, I instructed the
jury that, prior to the commencement of trial, I had ruled that
Mr. Martinez did not need to perform the pantomime, and that it
would be adequate for him to verbally describe his gestures.
(Trial Tr. at 195) In questioning Mr. Martinez, the defendants'
counsel quoted from the on-the-record description of the
pantomime made at the underlying criminal trial. (Trial Tr. at
197) Mr. Martinez stated that he agreed with his counsel's
characterization of his gestures at the criminal trial. (Trial
Tr. at 197-98)
Defendants' specific point is that plaintiff obtained an
acquittal in the criminal trial by performing a demonstration of
action that, in defendants' view, would have been sufficient to
establish probable cause for his arrest. However, ordering a
reenactment of the events of February 1, 2000 would have had
slight probative value. The physical gestures would be imprecise,
and there would be no adequate way for a jury to compare the
gestures it viewed with the gestures seen by Judge Torres or
those that occurred on February 1, 2000.
The pantomime risked creating unfair prejudice, a confusion of
the issues, and misleading the jury. Rule 403, Fed.R.Evid.
Martinez described the experience of performing the pantomime at
his criminal trial as being "very, very difficult, very
embarrassing, very embarrassing." (Trial Tr. at 203) If it was
error to exclude the demonstration, defendants were not
prejudiced by it. Of far greater probative value was plaintiff
counsel's description of the reenactment to Judge Torres, which
was published to the jury over plaintiff's objection. (Trial Tr. at 196)
Specifically, the jury was informed that at the conclusion of the
demonstration in the criminal trial, Martinez's counsel stated:
"Let the record reflect that Mr. Martinez made a motion that
could be misled [sic] as an up and down, back and forth motion
with his hand as he's finished pretending urinating." (Trial Tr.
at 196) Martinez confirmed that it was an accurate
representation. Defendants were free to argue to the jury that
the plaintiff's conduct was sufficiently close in resemblance to
public masturbation to give rise to probable cause.
C. The summations in Mr. Martinez's criminal trial were not
evidence, and were properly excluded from trial
Defendants contend that the Court erred by excluding certain
comments made by plaintiff's counsel, Michael Spiegel, during his
closing argument at the underlying criminal trial. The Joint
Pretrial Order contained the parties' stipulation to the
admission of the entire transcript of the criminal action.
Plaintiff's counsel later sought to exclude the following passage
from Mr. Spiegel's summation:
I suppose it is possible that Police Officer Nunziato
mistook the innocent gesture of Mr. Martinez
finishing up urinating for a lewd act. And I suggest
that that raises a reasonable doubt as to whether or
not what was actually being engaged in the bathroom
that day was a lewd act or was a totally innocent
hand motion which is routinely made by men at
(Criminal Trial Tr. at 75)
A final pretrial order may be modified to prevent manifest
injustice, Rule 16(e), Fed.R.Civ.P., and I permitted the
plaintiff to object belatedly to a small, non-testimonial portion
of the transcript. I ruled that, consistent with United States
v. McKeon, 738 F.2d 26 (2d Cir. 1984), Mr. Spiegel's statements
of advocacy at the criminal trial were inadmissible. McKeon
observed that an admission of fact by an attorney made during
argument may be admitted at a subsequent trial. Id. at 30
(citing Oscanyan v. Arms Co., 103 U.S. 261, 263 (1880)). McKeon held,
however, that "[s]peculations of counsel, advocacy as to the
credibility of witnesses, arguments as to weaknesses in the
prosecution's case or invitations to a jury to draw certain
inferences should not be admitted." Id. at 33. Moreover, any
inconsistency "should be clear and of a quality which obviates
any need for the trier of fact to explore other events at the
prior trial." Id. To be admissible evidence in a later action,
counsel's statements during argument must be the equivalent of
testimonial statements uttered by a party. Id.; see also
Maurizio v. Goldsmith, 84 F. Supp. 2d 455, 464 (S.D.N.Y. 1999)
(arguments made in state court briefs were of an argumentative
nature, and not admissions of fact), aff'd, 230 F.3d 518 (2d
Mr. Spiegel's comments in closing argument in the criminal
trial fall within the category of speculation that McKeon
deemed inadmissible. His remarks were couched purely as
supposition and suggestion. In "suppos[ing] that it is possible"
that Officer Nunziato mistook Mr. Martinez's gestures for an act
of public lewdness, Mr. Spiegel made an argument as to whether
the state satisfied the burden of proof in the criminal trial.
His observation as to what Nunziato may have seen was framed as a
theory and a matter of speculation. As such, Spiegel was offering
a hypothetical scenario and theorizing as to Officer Nunziato's
state of mind when he arrested Mr. Martinez. This falls within
McKeon's concerns as to not admitting speculations of counsel
or invitations to draw inferences. McKeon, 738 F.2d at 30. In
contrast, applying McKeon to plaintiff's counsel's factual description of the so-called
pantomime, I concluded, over plaintiff's objection, that it
contained a sufficient factual basis to have the qualities of an
admission and allowed it into evidence.
Lastly, if I was in error in this regard, there was no
prejudice to the defendants because any factual content in the
omitted portion of the summation quoted above was substantially
cumulative of plaintiff's counsel's description of the so-called
pantomime, which I allowed into evidence.
The defendants' motion, to the extent premised on this ground,
D. No missing witness charge was warranted as to Rosalba and
At trial, the defendants requested that the Court give the jury
a missing witness instruction as to an individual named
Rosalba,*fn6 and a physician named Dr. Fogari, who
prescribed certain anti-anxiety medications to Martinez.
Then, as now, the defendants' basis for seeking a missing
witness charge was not altogether clear. Defendants argue that
these witnesses were available to the plaintiff, "and without
reason he failed to call them (or to identify them per Rule 26)."
(Def. Mem. Pt. V) They cite to Magee v. Paul Revere Life Ins.
Co., 178 F.R.D. 33 (E.D.N.Y. 1998), in which the district court
upheld discovery sanctions levied by a Magistrate Judge upon a
party that failed to produce a key witness, and McDowell v.
Eagle Trans. Corp., 303 A.D.2d 655, 656, 758 N.Y.S.2d 79, 80 (2d
Dep't 2003), in which the New York Appellate Division, Second
Department, held that a missing witness charge should have been
given as to four physicians who might have acted as third-party
witnesses in an insurance dispute. Defendants' arguments as to the necessity of a missing witness
charge have no basis in governing law. United States v. Torres,
845 F.2d 1165, 1169 (2d Cir. 1988), explained the conditions that
necessitate a missing witness charge:
When a party has it peculiarly within his power to
produce witnesses whose testimony would elucidate the
transaction and fails to produce such witnesses, the
jury may infer that the testimony, if produced, would
be unfavorable to that party. However, when a witness
is equally available to both sides, the failure to
produce is open to an inference against both
parties. No instruction is necessary where the
unpresented testimony would be merely cumulative.
(quotation marks and internal citations omitted; emphasis in
original). In the context of instructing on evidentiary
inference, witness availability implicates the totality of
circumstances including the witness's relation to the parties,
not just physical presence or accessibility. Id. at 1170.
"[C]ourts have been reluctant to find a witness practically
unavailable when it appears that the defense has no real interest
in calling the witness to the stand, but merely is engaged in a
form of gamesmanship in an effort to obtain a missing witness
charge." Id. It is within the trial court's "sound discretion"
whether to issue a missing witness charge. Id. at 1170-71.
According to Martinez's testimony, Rosalba is a social worker
at a gay community center in New York, the Gay and Lesbian
Anti-Violence Project. (Trial Tr. at 94) For about a year after
his arrest, Martinez met with Rosalba for counseling sessions.
(Trial Tr. at 95) Rosalba did not charge for their sessions, and
recommended that Martinez visit a psychologist or psychiatrist.
(Trial Tr. at 181-82) She ultimately referred him to Barbara
Fried, who testified at trial. (Trial Tr. at 182)
At plaintiff's deposition, defendants' counsel questioned Mr.
Martinez about his sessions with Rosalba. (Martinez Dep. at
98-99, 102, 105-06) He also questioned him about treatment administered by Dr. Fogari, whose
role apparently was limited to prescribing anti-anxiety drugs.
(Martinez Dep. at 14, 17, 112-13) In his opposition papers, the
plaintiff contends that Rosalba's identity and last known address
were contained in medical records in the defendants' possession,
a contention that the defendants do not dispute. These materials
were introduced at trial as Exhibit 20. Because the defendant was
aware of Rosalba and Dr. Fogari prior to commencement of trial,
and did not seek to call them, a missing witness instruction is
Lastly, in his closing argument, the defendants' counsel
commented on the plaintiff's decision not to call Rosalba as a
witness. (Trial Tr. at 583, 586) He stated the following:
Who was Ms. Rosalba? Why wasn't she called? Wouldn't
she have a better idea of exactly what his initial
complaints were after the arrest? Or maybe she wasn't
called because the plaintiff, in discussing this
retraumatization that he suffered because of the
arrest, admitted to Ms. Rosalba that he was in fact
guilty of public lewdness. Where is the physician?
(Trial Tr. at 586) In Torres, the Second Circuit observed that,
assuming arguendo the trial court erred in not issuing a
missing witness instruction, any error was remedied when the
trial court permitted counsel to address any possible inferences
during summation. 845 F.2d at 1170. Thus, even if a missing
witness charge was warranted as to Rosalba, defendants remedied
that error by attempting to draw inferences as to her absence.
In the Joint Pretrial Order, the defendants indicated that they
intended to call Dr. Fogari as a witness. (JPTO at 6) They
elected not to do so.
The defendants' motion, to the extent that it is premised upon
the failure to give a missing witness charge for Rosalba or Dr.
Fogari, is denied. E. It was Not Error for Adamowicz and Fried to Testify
Defendants next contend that Frank Adamowicz (who is Mr.
Martinez's life partner of 24 years) and Ms. Fried should have
been precluded from testifying because they were not identified
in Mr. Martinez's Rule 26(a)(1) initial disclosures.
In pretrial argument of the defendants' in limine motion,
counsel contended that the plaintiff violated Rule 26 by waiting
until three weeks before trial to state his intention to call
Adamowicz and Fried, rather than disclosing their identities at
an earlier point in time. (Trial Tr. at 26) Plaintiff's counsel
argued that his failure ought to be excused because this lawsuit
commenced on January 30, 2001, less than two months after the
"initial disclosures" provisions of Rule 26(a)(1) became
mandatory in this District, and neither plaintiff nor defendants
served automatic disclosures. (Trial Tr. at 28)
Defendants' did not serve any discovery requests until the
discovery period closed. (Trial Tr. at 26-27) The defendants
served no interrogatories, requests to admit, or notices of
deposition. (Trial Tr. at 27) Not until discovery closed, and the
plaintiff amended his complaint to voluntarily dismiss claims of
negligence and conspiracy and add an additional theory to his
Monell claim did the defendants' counsel serve a written
discovery request. (Trial Tr. at 26) Significantly, when
defendants' counsel questioned Mr. Martinez at his pretrial
deposition, counsel inquired about the counseling that Ms. Fried
provided, and about the nature of Mr. Martinez's relationship
with Mr. Adamowicz. (Martinez Dep. at 4-5, 78, 81, 85, 99,
Defendants were not prejudiced by the late addition of
Adamowicz and Fried to the witness list. Prior to trial, on
October 29, 2004, I directed plaintiff's counsel to make Adamowicz and Fried available to have their depositions
taken in order to cure any prejudice that the plaintiff's late
listing caused to the defendants. Defendants' counsel then
telephoned Mr. Spiegel, who told him that Mr. Adamowicz shared an
address with Mr. Martinez, and that Ms. Fried's address was
included in materials already produced to the defendants. (Trial
Tr. at 31) Plaintiff's counsel informed defendants' counsel that
Mr. Adamowicz was available for deposition at a time of the
defendants' choosing. (Trial Tr. at 31-32) According to the
plaintiff's counsel, defendants' counsel did not subsequently
call with a deposition date. (Trial Tr. at 32) As to Ms. Fried,
plaintiff's counsel telephoned her in an effort to find a
suitable deposition date. (Trial Tr. at 32) Either a relative or
a family friend had been involved in an accident, and Ms. Fried
was away on travel. (Trial Tr. at 32) Plaintiff's counsel
arranged a potential deposition date, which he then communicated
by fax to the defendants' counsel. (Trial Tr. at 32) The date was
Friday, November 12, with the trial scheduled to commence the
following Monday. (Trial Tr. at 33) Defendants' counsel did not
respond to the fax, and offered the following explanation to the
Mr. Spiegel sent me a fax on November 6, which was a
Saturday. In effect it was November 8. And I did not
respond to that. And frankly, I and I'll be quite
honest with the Court I felt that at this time
offering her deposition on November 12 was something
that I just could not comply with, that I would not
be able to make myself available on November 12 to
take the deposition of a witness for a trial that was
supposed to start today. . . . It was just
impossible. And I declined to respond to Mr. Spiegel.
(Trial Tr. at 33-34) At that point, I noted that I previously had
made myself available to the parties to resolve any conflicts
that might arise over the scheduling of depositions. (Trial Tr.
at 34) Although the defendants' counsel wrote to Mr. Spiegel on
November 3, 2004 complaining that he had not been provided with
witness addresses and copied that letter to the Court, defendants' counsel made no application for
relief as to the depositions of either Adamowicz or Fried.
Defendants made no effort to seek the Court's intervention on
scheduling matters or to seek a brief adjournment of the trial.
A trial court has discretion to preclude testimony as a
sanction for discovery violations.*fn7 As Judge Koeltl noted
in Ebewo v. Martinez, 309 F. Supp. 2d 600, 607 (S.D.N.Y. 2004),
"[c]ourts in this Circuit recognize that preclusion of evidence
pursuant to Rule 37(c)(1) is a drastic remedy and should be
exercised with discretion and caution." Many courts in this
District have found that "flagrant bad faith" and "callous
disregard" of the Federal Rules are necessary prerequisites to
witness preclusion. See, e.g., Ward v. National Geographic
Society, 2002 WL 27777, at *2 (S.D.N.Y. Jan. 11, 2002).
True, Adamowicz and Fried were not identified as trial
witnesses until relatively late in this litigation. When
Adamowicz and Fried were identified as trial witnesses
approximately three weeks prior to trial, I declined to preclude
them as trial witnesses but instead required the plaintiff to
make them available for depositions. When defendants encountered
scheduling difficulties for the depositions, they sat on their
rights. I conclude that by failing to pursue the depositions of
Adamowicz and Fried after I ordered them to be made available,
the defendants waived a court-ordered remedy that would have
cured or eliminated any possible prejudice. Any lingering
prejudice to the defendants was self-inflicted. The defendants' motion, to the extent that it is premised on
the late addition of Adamowicz and Fried to plaintiff's witness
list, is denied.
F. Plaintiff's arguments on summation were not improper
Defendants argue that a new trial is warranted because in Mr.
Spiegel's closing argument, he alluded to the choices and motives
of other persons arrested for public lewdness. According to the
defendants, the plaintiff's counsel "was asking the jury
improperly to identify with plaintiff . . . urge[d] the jury to
speculate and to accept Spiegel's un-sworn testimony about
evidence in the criminal trial, and to consider hearsay
conversations from unidentified individuals." (Def. Mem. at Pt.
During his summation, plaintiff's counsel suggested that Mr.
Martinez's arrest and prosecution, both of which he claimed were
pursued without probable cause, illustrate the reasons why
similarly positioned arrestees did not challenge their arrests
and instead pleaded guilty to disorderly conduct violation.
(Trial Tr. at 608) Defendants' counsel promptly objected, at
which point, in the middle of the plaintiff's summation, I
instructed the jury that they may not engage in speculation, and
only should draw reasonable inferences. (Trial Tr. at 608-09) I
thereafter sustained the defendants' objection to a different
statement in Mr. Siegel's summation, which implied that the
individual defendants were aware of the typical resolution of
public lewdness arrests. (Trial Tr. at 610-11) I reminded the
jury that a lawyer's argument does not constitute evidence, and
that the jury's recollections of fact control. (Trial Tr. at 611)
During the plaintiff's summation, I overruled defendants'
objections to, inter alia, plaintiff's argument that an
innocent person would be unlikely to challenge a public lewdness
arrest because of the stigma attached for being prosecuted for
such conduct; plaintiff's reference to Martinez's criminal acquittal; and plaintiff's
argument as to why the pantomime occurred at the criminal trial.
(Trial Tr. at 612-13, 19)
Contrary to the assertions of defendants' counsel, Mr. Spiegel
did not offer fact testimony in his summation, or engage in
impermissible speculation. Based on my review of those portions
of the trial transcript cited by the defendants, Mr. Siegel's
argument was well within the boundaries of fair comment on the
evidence. His statements did not exceed the bounds of the trial
evidence, nor did he encourage the jury to engage in
impermissible speculation. In the instance where I sustained the
defendants' objection, I addressed the jury to remind them that
their recollection must control their determinations as triers of
fact. Also, in my preliminary instructions to the jury and again
in my closing instructions, I informed the jury that lawyers'
arguments are not evidence. (Trial Tr. at 37, 636-37) If the
defendants desired a more particularized instruction to the jury,
they should have requested it.
Because plaintiff's summation contained nothing more than fair
argument as to permissible inferences to be drawn from the
evidence, the defendants' motion for a new trial, to the extent
premised upon this ground, is denied.
G. Ms. Fried did not offer expert testimony, and her fact
testimony was permissible
Defendants argue that Barbara Fried testified as a de facto
liability expert. They contend that her status as an "expert
witness," coupled with the late notice they received of
plaintiff's intention to call her, should have precluded Fried's
testimony. The argument is meritless.
Fried describes herself as a social worker and psychotherapist.
(Trial Tr. at 410) Martinez was referred to her for counseling,
and Ms. Fried testified about her yearlong treatment of Martinez. (Trial Tr. at 411) Ms. Fried did
not offer any opinion on causation or future damages.
A witness may qualify as an expert if he or she is "specially
employed to provide expert testimony in the case," or if "duties
as an employee of the party regularly involve giving expert
testimony." Fed.R.Civ.Proc. 26(a)(2)(B). In Byrne v. Gracious
Living Industries, Inc., 2003 WL 446474, at *2 (S.D.N.Y. Feb.
25, 2003), Judge Kaplan differentiated the roles of a treating
physician and those of an expert. "A treating physician who is
called to testify on information acquired solely in that role, as
opposed to giving an opinion formulated for trial, is not an
expert for purposes of Rule 26(a)(2)(A)." Id. Byrne observed
that most courts hold that so long as a witness testifies solely
to the patient's treatment or care, he or she is not a witness
subject to the written report requirements of Rule 26,
notwithstanding any opinion testimony he or she may offer. Id.
The Advisory Committee Notes to the 1993 amendments of Rule
26(a)(2) state: "A treating physician, for example, can be
deposed or called to testify at trial without any requirement for
a written report." Byrne observes that the expert disclosure
rules intend to allow the opposing party to take effective
discovery of an expert, a concern that is irrelevant when the
opposing party is aware of the treating physician's identity and
is not prejudiced by his or her testimony. 2003 WL 446474, at *2.
See also Derienzo v. Metropolitan Transit Authority &
Metro-North Rail Road, 2004 WL 67479, at *2 (S.D.N.Y. Jan 15,
2004) ("[A] doctor is not precluded from testifying to facts
learned and opinions formed in the course of treatment by virtue
of the fact that a party did not make the expert disclosures
required under Rule 26(a)(2) because the doctor is not an `expert' subject to the Rule."); Zanowic v. Ashcroft,
2002 WL 373229, at * 2 (S.D.N.Y. Mar. 8, 2002) ("[t]here can be
no serious dispute" that a treating physician is "free to testify
to opinions he formed" during treatment without submitting an
expert disclosure pursuant to Rule 26(a)(2)) (collecting cases);
Chiquita Int'l Ltd. v. M/V Bolero Reefer, 1994 WL 177785, at *1
(S.D.N.Y. May 6, 1994) ("[T]he relevant distinction is not
between fact and opinion testimony but between those witnesses
whose information was obtained in the normal course of business
and those who were hired to make an evaluation in connection with
The defendants point to no testimony that can be characterized
as expert testimony. During the course of her testimony,
plaintiff's counsel asked whether Ms. Fried observed signs
indicating that Mr. Martinez suffered from sexual compulsions.
(Trial Tr. at 429) Defendants' counsel objected, and I instructed
Ms. Fried to limit her testimony solely to what she observed
during the course of treatment. (Trial Tr. at 429-430) Ms. Fried
testified that she "saw no signs whatsoever of sexual
compulsivity or any kind of acting out. . . ." (Trial Tr. at 430)
Her testimony was limited to what she observed from her treatment
of Mr. Martinez.
Prior to trial, defendants' counsel pointed to Ms. Freed's
desired hourly fee of $125 as indicia that she would testify as
an expert. The Code of Professional Responsibility permits a fact
witness to be paid "[r]easonable compensation . . . for the loss
of time in attending, testifying, preparing to testify or
otherwise assisting counsel." DR 7-109(c)(2),
22 N.Y.C.R.R. § 1200.40. The payment of fees to Ms. Freed did not render her an
expert. Lastly, the defendants argue that Ms. Fried's testimony "is
worthless" because on cross-examination, she testified that she
did not evaluate Mr. Martinez's truthfulness during their
sessions. (Def. Mem. at Pt. VIII) However, that argument goes to
the weight of her testimony, not to its admissibility.
H. Officer Miller
Defendants argue that this Court should find that plaintiff
established no prima face case against Officer Miller, and that
the claim against him should be dismissed on the basis of
qualified immunity. Because the jury returned a verdict finding
no liability on the part of Officer Miller, these arguments are
moot, and I do not consider them.
2. Defendants' Motions to Remit Plaintiff's Damage Award
The defendants argue that the damage awards against them are
excessive as a matter of law and should be subject to remittitur.
Having viewed the evidence as a whole and reviewed the damage
awards in comparable false arrest and malicious prosecution
trials, I conclude that remittitur is appropriate as to the award
for "[e]motional distress, mental anguish and loss of liberty
damages" arising from Martinez's false arrest, from an amount of
$1,000,000 to $360,000. I do not remit the $1,000 in therapy
expenses on the false arrest claim, the $100,000 in damages for
"[e]motional distress and mental anguish damages" on the
malicious prosecution claim, or the $3,000 in legal expenses
awarded on the malicious prosecution claim.
Three witnesses testified as to the damages incurred by Mr.
Martinez: Barbara Fried, Frank Adamowicz, and Mr. Martinez
himself. Plaintiff also introduced Ms. Fried's notes from the 41 therapy sessions that she conducted
with Mr. Martinez during the course of her treatment of him.
Further description of the events of February 1, 2000 is
helpful in understanding the nature of the injuries that Martinez
incurred. As Martinez exited the WTC PATH Station men's room, he
heard a whistle, and Callaghan and Nunziato motioned him toward
them. (Trial Tr. at 70) They instructed Martinez to wash his
hands in the men's room; when Mr. Martinez asked why, Officer
Nunziato told Martinez that he had been masturbating in the men's
room. (Trial Tr. at 70, 76) According to Martinez, when he denied
so doing, Officer Nunziato responded, "Are you calling me a liar?
If you want, I can break your teeth." (Trial Tr. at 76-77)
Martinez testified that he was one of seven individuals in
custody for public lewdness, and the officers "were laughing at
us," and that Nunziato said to them, "oh, so why don't you go to
the gay places, you faggot, you queer." (Trial Tr. at 79-80)
Martinez testified that while he was being processed at 100
Centre Street, "everybody was laughing at us" and mocking the
arrestees. (Trial Tr. at 89) He also testified that he was
injured because Callaghan placed him in handcuffs that were too
tight. (Trial Tr. at 82) He was released from custody at
approximately 1 a.m., roughly 19 hours after his arrest. (Trial
Tr. at 93)
Martinez testified that after the arrest, he experienced
sleeplessness, loss of appetite, and bouts of anxiety. (Trial Tr.
at 97) For a period of time, he stopped working as a volunteer at
senior citizen functions, attending church, and going to sporting
events. (Trial Tr. at 98-100) Martinez testified that in the
weeks after his arrest, he briefly contemplated suicide. (Trial
Tr. at 106) He did not travel to Cuba to visit his ill mother for
fear that the arrest would preclude re-entry to the
United States. (Trial Tr. at 103) During this post-arrest period, Mr. Martinez allowed his
previously filed application for U.S. citizenship to lapse
because he "was afraid of going to Immigration and [he] was
afraid of going to jail or being deported." (Trial Tr. at 66)
Martinez ultimately received therapy from Rosalba and Ms.
Fried. (Trial Tr. at 181-83) Fried concluded that Martinez
suffered from post-traumatic stress syndrome. (Trial Tr. at 419)
She testified that he was uncomfortable leaving his home, and had
fears of being followed. (Trial Tr. at 423) She testified that he
expressed being anxious in the presence of law enforcement
officers, even those whom he already knew personally. (Trial Tr.
at 423-24) Fried confirmed that Martinez expressed to her that he
had contemplated suicide. (Trial Tr. at 424) She also testified
that Martinez reported physical symptoms, such as feelings of
coldness and numbness. (Trial Tr. at 443-44)
Frank Adamowicz, who resides with Martinez and whose
relationship with Martinez has been formalized as a domestic
partnership, (Trial Tr. at 450) testified as to the damages Mr.
Martinez incurred following his arrest and prosecution. Adamowicz
testified that Martinez became withdrawn, and was uneasy with
routine outings and social gatherings. (Trial Tr. at 458-59)
Adamowicz corroborated Martinez's account that he was uneasy in
the presence of police officers, even those whom he knew
personally. (Trial Tr. at 459, 474-75) Martinez also made
utterances that referred to the possibility of his death,
Adamowicz testified. (Trial Tr. at 461) Adamowicz testified that
he observed Martinez display physical symptoms, and that
Martinez's "was no longer the person he was prior to that event."
(Trial Tr. at 468)
On June 21, 2000, Martinez and Adamowicz were traveling through
the World Trade Center while on their way to a court appearance
in Martinez's criminal prosecution. (Trial Tr. at 101) While on an escalator, Martinez
heard someone shout his name, and saw that it was Officer
Nunziato.*fn8 (Trial Tr. at 101) Nunziato and Callaghan were
together. (Trial Tr. at 101) According to Martinez, Nunziato was
waiting for him, and when he saw Martinez and Adamowicz, "he
cracked up laughing." (Trial Tr. at 101) Nunziato followed them
through the concourse. (Trial Tr. at 101) Hoping that Nunziato
would stop following him, Martinez stepped into a retail
establishment. (Trial Tr. at 102) Martinez testified that when he
exited the store, he saw Nunziato and Callaghan standing outside.
(Trial Tr. at 102) He testified that Nunziato was striking the
palm of his hand with a rolled-up newspaper, and that "he was
looking at me and smiling at the same time." (Trial Tr. at 102)
Adamowicz corroborated this account. (Trial Tr. at 465) Martinez
testified that he was "terrified" by the encounter. (Trial Tr. at
"[W]here the jury has found a constitutional violation and
there is no genuine dispute that the violation resulted in some
injury to the plaintiff, the plaintiff is entitled to an award of
compensatory damages as a matter of law." Kerman v. City of New
York, 374 F.3d 93, 124 (2d Cir. 2004). Compensatory damages may
include out-of-pocket expenses and other monetary harms, and
arise from injury to reputation, personal humiliation, and mental
anguish and suffering. Memphis Community School Dist. v.
Stachura, 477 U.S. 299, 307 (1986). Similarly, a plaintiff
unlawfully deprived of liberty is entitled to compensatory
damages for the loss of "intangible rights." Kerman,
374 F.3d at 124. The damages recoverable for the loss of liberty are
separable from damages caused by physical harm, embarrassment, or
emotional suffering. Id. at 125-26. A jury award should not be sustained "where the damages awarded
are so excessive `as to shock the judicial conscience.'" Raucci
v. Town of Rotterdam, 902 F.2d 1050, 1058 (2d Cir. 1990)
(quoting Martell v. Boardwalk Enterprises, Inc., 748 F.2d 740,
750 (2d Cir. 1984)). A court also must pay "due deference to the
fact-finding role of the jury" when evaluating claimed excessive
damages. Gardner v. Federated Dep't Stores, Inc.,
907 F.2d 1348, 1353 (2d Cir. 1990). "[W]hen § 1983 plaintiffs seek damages
for violations of constitutional rights, the level of damages is
ordinarily determined according to principles derived from the
common law of torts." Memphis Community School Dist.,
477 U.S. at 306. As Judge Schwartz observed, damages arising out of an
emotional distress claim are not always easily translated into a
dollar amount, and the law does not provide a precise formula for
reducing such injuries to a monetary value. Sulkowska v. City of
New York, 129 F. Supp. 2d 274, 308 (S.D.N.Y. 2001) (citing
Mathie v. Fries, 121 F.3d 808, 814 (2d Cir. 1997)). However, it
is appropriate for a court considering a motion for remittitur to
consider the value of jury awards that arose from the same cause
of action. See, e.g., Gardner, 907 F.2d at 1353.
The jury's awards of damages for false arrest or malicious
prosecution redress different phases in Martinez's ordeal.
Damages on a false arrest claim compensate for injuries from the
beginning of custody to arraignment, and malicious prosecution
damages compensate for post-arraignment injuries. Hygh v.
Jacobs, 961 F.2d 359, 366 (2d Cir. 1992). In turn, false arrest
is subdivided into two compensatory components: (1) deprivation
of liberty and (2) tangible injury, which includes physical harm,
embarrassment, and emotional suffering. See Kerman,
374 F.3d at 125-26. "[T]he damages for deprivation of liberty redress the
denial of free movement and the violation done to [an individual's] dignity as a result of the unlawful
detention, and not the physical and mental injuries arising from
the incident." Gardner 907 F.2d at 1353. Thus, damages awarded
for deprivation of liberty are independent of damages awarded for
physical and mental injuries, and deprivation of liberty damages
may be awarded even in the absence of physical or mental harm.
Kerman, 374 F.3d at 126 (citing Woodard v. City of Albany,
81 A.D.2d 947 (3d Dep't. 1981)). As to Martinez's false arrest
claim, the verdict form, agreed upon by the parties, did not
require the jury to award damages for loss of liberty separate
from damages arising from emotional distress and mental anguish.
The jury charge made clear the governing standard for each
component of the award. Therefore, I separately analyze the two
components of the $1,000,000 false arrest award: emotional injury
and the loss of liberty.
A. Plaintiff's False Arrest Award
False arrest awards vary widely. When adjusted to 2005 dollars,
they have generally ranged between $10,000 and $300,000.*fn9
See Gardner, 907 F.2d at 1353 (ordering the remittitur of a
$300,000 jury award to $200,000 (roughly $297,000 in 2005
dollars) for approximately 8 hours of imprisonment); Roundtree
v. City of New York, 208 A.D.2d 407 (1st Dep't 1994) (ordering a
remittitur amount to $200,000 (roughly $262,000 in 2005 dollars)
for 3.5 days of imprisonment); Stile v. City of New York,
172 A.D.2d 743 (2d Dep't 1991) (ordering a remittitur amount of
$150,000 (roughly $214,000 in 2005 dollars) for 28 hours of imprisonment);
Martinez v. Gayson, 1998 WL 564385, at *6 (E.D.N.Y. June 30,
1998) (ordering a remittitur amount of $160,000 (roughly $191,000
in year 2005) for five hours of imprisonment); Bert v. Port
Authority of New York and New Jersey, 166 A.D.2d 351, 351 (1st
Dep't 1991) (awarding $100,000 (roughly $142,000 in year 2005)
for three hours of imprisonment and humiliation); Hollender v.
Trump Village Co-op., 97 A.D.2d 812 (2d Dep't 1983) (ordering a
remittitur amount of $10,000 (roughly $19,000 in year 2005) for
false arrest); Mason v. City of New York, 949 F. Supp. 1068,
1076 (S.D.N.Y. 1996) (ordering a remittitur amount of $10,000
(roughly $12,400 in year 2005) for 2 hours of imprisonment).
Two prior jury awards are particularly helpful in analyzing the
quantum of damages awarded to Martinez. In Sulkowska, the
plaintiff protested the city's unlawful seizure of her
establishment, a bar. 129 F.Supp.2d at 283-84. She was falsely
arrested and imprisoned for approximately a half-day, without
physical injury. In a bench trial, Judge Schwartz awarded her
$275,000 ($302,020 in 2005 dollars) for past and future pain and
suffering. Id. at 309. The court concluded that malicious
prosecution damages would be minimal, since the plaintiff's
injuries were primarily attributable to her arrest and
pre-arraignment detention, so the award amount effectively was
compensation for false arrest. Id. at 307.
In Komlosi v. Fudenberg, 2000 WL 351414, at *16 n. 12
(S.D.N.Y. 2000), the plaintiff, a psychologist, was falsely
accused of sexually abusing patients. Id. at *2-3. While his
employer commenced an internal investigation, law enforcement
arrested him and filed charges of rape and forcible sodomy. Id.
at *3. He remained in custody for two weeks, and although the
charges against him ultimately were dismissed, the accusations garnered press attention, including an article in the New York
Post. Id. at *3. The plaintiff undertook psychiatric therapy
and was diagnosed with post-traumatic stress disorder. Id. At
trial, the jury awarded the plaintiff $6.6 million on his false
arrest and malicious prosecution claims, approximately $5.23
million of which was to compensate for non-economic loss. Id.
at *15. The district court granted remittitur of non-economic
damages to $500,000. Id. at *17.
Other false arrest awards have exceeded this range, but were
undifferentiated lump sums that arose from multiple torts. See
Ismail v. Cohen, 899 F.2d 183 (2d Cir. 1990) (upholding a lump
sum award of $650,000 in compensatory damages (roughly $967,000
in 2005 dollars) for deprivation of constitutional rights,
discrimination, assault, battery, false arrest, malicious
prosecution, and abuse of process).
I first consider the award for the loss of liberty that
Martinez suffered as a result of the false arrest. I conclude
that Martinez should be compensated for his loss of liberty in
the sum of $160,000. In Gardner, the plaintiff was falsely
arrested and accused of theft by security guards in a Manhattan
department store. Gardner, 907 F.2d at 1353. After store
security held Gardner, threatened him, and called him a "blond
faggot," he was handed over to the police and transferred to
Central Booking to be imprisoned an additional six hours. Id.
During this time, Gardner was assaulted and sustained multiple
physical injuries, resulting in jaw injury, hearing impairment,
and ear inflammation. Id. at 1350-51. At trial, the jury
awarded $650,000 for pain and suffering and $150,000 for
deprivation of liberty. Id. at 1351. On appeal, the Second
Circuit surveyed the then-existing damages awards for the loss of
liberty in comparable false arrest cases, and concluded that the
sum of $150,000 "exceeds awards sanctioned in similar New York cases." The Second Circuit granted a remittitur of damages for
deprivation of liberty from $150,000 to $50,000. Id. at 1353.
Martinez was held for approximately 2.5 times the duration of
Gardner's imprisonment.*fn10 I take this into account in
concluding that in light of the circumstances of Martinez's
arrest, an award of $160,000 for deprivation of liberty does not
shock the judicial conscience. Martinez's confinement lasted from
just after 6 a.m. on February 1 until shortly after midnight on
February 2. Accepting the jury's conclusion that Martinez was
falsely arrested during a typical morning commute and unlawfully
held for a period of time extending late into the night, an award
of $160,000 is not inconsistent with other false arrest awards,
and is not a sum that shocks the judicial conscience.
I now consider the false arrest damages for mental anguish and
emotional distress. "The measure of damages for pain and
suffering or emotional distress is . . . not easily translated
into a dollar amount. Consequently, the law does not provide a
precise formula by which pain and suffering and emotional
distress may be properly measured and reduced to monetary value."
Sulkowska, 129 F.Supp.2d at 308. Other courts have given
substantial awards for emotional distress resulting from false
arrest. See Gonzalez v. Bratton, 147 F. Supp.2d 180, 208-09
(S.D.N.Y. 2001) (upholding a compensatory award of $250,000 for
emotional distress resulting from a false arrest that included a
physically invasive strip search).
On the evidence before the jury, an award above $200,000 would
exceed a permissible award for the pain and suffering that
Martinez faced as a result of the false arrest. Martinez was not
subjected to physical assault. The evidence supports a conclusion that he experienced considerable anguish because of
his arrest. This included sleeplessness, loss of appetite,
anxiety bouts, cessation of social, volunteer, and church
activities, ideations of suicide, and concerns about his
immigration status. (Trial Tr. at 97-100, 103, 106) Much of
Martinez's testimony was corroborated by the testimony of Ms.
Fried and Mr. Adamowicz. Martinez also allowed his application
for U.S. citizenship to lapse out of fear that the arrest would
have repercussions on the process. (Trial Tr. at 66) The jury
credited Martinez's testimony, and in light of the injuries to
which he testified and the damages awarded in comparable cases,
including Gonzalez, an award of $200,000 does not shock the
Lastly, the jury's award of $1,000 for the plaintiff's therapy
bills does not shock the judicial conscience.
B. Plaintiff's Malicious Prosecution Award
The jury awarded $100,000 on Martinez's malicious prosecution
claim. I conclude that remittitur is unwarranted as to this
award. Martinez appeared in state trial court to defend himself
from the charge of public lewdness, a highly stigmatizing charge.
The jury in this case concluded that Martinez was prosecuted
without probable cause. Martinez stated that the trial made him
feel desperate, nervous, and "like a madman." (Trial Tr. at
96-97) Jurors also heard testimony from Martinez and Adamowicz
about the intimidating conduct of Nunziato on June 21, 2000 while
Martinez was en route to a court appearance. (Trial Tr. at
101-02, 465) The damages awarded for malicious prosecution are in
line with other awards for the same tort. See King v. Macri,
993 F.2d 294 (2d Cir. 1993) (upholding a $75,000 award for a
malicious prosecution claim ($100,950 in 2005 dollars)); Gentile
v. County of Suffolk, 926 F.2d 142 (2d Cir. 1991) (upholding a $75,000 award for a malicious prosecution claim
($107,100 in 2005 dollars)).
The jury award for Martinez's malicious prosecution claim is
consistent with other jury awards, and that remittitur is not
appropriate. In addition, the jury's award of $3,000 in
attorneys' fees expended by Martinez in the underlying criminal
trial is consistent with the evidence and does not shock the
3. Plaintiff's Motion for Attorneys' Fees
Section 1988 to Title 42 of the U.S. Code provides attorneys'
fees for the prevailing party in an action under
42 U.S.C. § 1983: "[T]he court, in its discretion, may allow the prevailing
party . . . a reasonable attorney's fee as part of the costs."
"[A] prevailing plaintiff `should ordinarily recover an
attorney's fee unless special circumstances would render such an
award unjust.'" Hensley v. Eckerhart, 461 U.S. 424, 429 (1983)
(quoting S. Rep. No. 94-1011, p. 4 (1976), U.S. Code Cong. &
Admin. News 1976, p. 5912). Although the fee awards vary with the
facts of each case, two questions govern whether attorneys' fees
should be awarded: "First, did the plaintiff fail to prevail on
claims that were unrelated to the claims on which he succeeded?
Second, did the plaintiff achieve a level of success that makes
the hours reasonably expended a satisfactory basis for making a
fee award?" Id. at 434. "Where a plaintiff has obtained
excellent results, his attorney should recover a fully
compensatory fee. Normally this will encompass all hours
reasonably expended on the litigation, and indeed in some cases
of exceptional success an enhanced award may be justified." Id.
Following Hensley, the quantum of attorneys' fees should be
determined by "the number of hours reasonably expended on the
litigation multiplied by a reasonable hourly rate." Id. at 433. The party seeking fees should submit
evidence showing hours and rates, and the absence of evidence may
warrant a reduced award. Id. Courts also should be alert to
excessive fee requests, signaled by overstaffing and redundant
billing. Id. at 434. "[T]he fee applicant bears the burden of
establishing entitlement to an award and documenting the
appropriate hours expended and hourly rates. The applicant should
exercise `billing judgment' with respect to hours worked, and
should maintain billing time records in a manner that will enable
a reviewing court to identify distinct claims." Id. at 437
(internal citation omitted). Attorneys' rates should be
calculated "in line with those prevailing in the community for
similar services by lawyers of reasonably comparable skill,
experience and reputation." Blum v. Stenson, 465 U.S. 886, 896
(1984). In addition to attorneys' fees, a section 1988 award may
include out-of-pocket expenses incurred by an attorney that
ordinarily are charged to clients. LeBlanc-Sternberg v.
Fletcher, 143 F.3d 748, 763 (2d Cir. 1998).
In scattershot fashion, the defendants oppose the plaintiff's
application for attorneys' fees. Their opposition includes a
reiteration of the defendants' disagreement with the jury's
verdict; defendants' skepticism as to the existence of a retainer
agreement between Mr. Martinez and his counsel; an assertion that
Mr. Martinez's employment in food services for a major insurance
underwriter indicates that he can afford to pay his own
attorneys' fees; an argument that some of the plaintiff's
document discovery proved unfruitful; an argument that no fees
should be awarded for the work of any attorney other than
plaintiff's lead trial counsel; and an assertion that the 25
hours expended on the plaintiff's in limine motions was
excessive. In opposing the application for attorneys' fees, the defendants
have not shown that the plaintiff's employment status is relevant
to the application, nor have they set forth a basis in law as to
how a retainer agreement or the defendants' disagreement with the
jury verdict would inform the Court's disposition of the
attorneys' fees issue. I therefore reject these arguments as
bases for not awarding attorneys' fees.
I consider the defendants' argument that attorneys' fees should
be limited because, they contend, the plaintiff's document
discovery was unfruitful. Defendants argue that prior to taking
the depositions of the defendants, the plaintiff engaged in
extensive document discovery of the Port Authority in search of
documents to support the plaintiff's assertion that an
anti-homosexual bias influenced the Port Authority's conduct.
Defendants assert that because there was no documentary evidence
to support this theory, "discovery was futile from its inception
and indefensible as strategy." (Def. Mem. at 3) Presumably, this
argument is directed toward Hensley's initial threshold
question of whether the plaintiff prevailed on his claims.
Although the trial court has discretion to reduce a lodestar
fee based on the number of hours expended on a severable,
unsuccessful claim, see Green v. Torres, 361 F.3d 96, 98 (2d
Cir. 2004) (per curiam), the defendant has not raised any
authority showing that attorneys' fees should be reduced when
document discovery relevant to a plaintiff's successful claims
does not produce a smoking gun. I note that the jury found in the
plaintiff's favor on his Monell claim that the Port Authority
conducted sweeps without regard to probable cause. Pretrial
discovery into the Port Authority was necessary for the
prosecution of this action, and the plaintiff contends that the
round of discovery that defendants frame as meritless yielded documents
that were introduced as trial exhibits, and helped to frame
counsel's questioning of witnesses at trial.
Although that round of document discovery may not have yielded
a smoking gun, there is no evidence indicating that it was
frivolous, dilatory or otherwise constituted harassment. See
Kennelly v. State of Rhode Island, 682 F.2d 282, 283 (1st Cir.
1982) (per curiam) (upholding attorneys' fees award for
plaintiff's police misconduct claim because "[i]n the course of
pretrial discovery, it was incumbent upon plaintiffs' counsel to
explore the degree of participation of the municipal defendants
in the incident in question."). Based on the record before me, I
conclude that plaintiff's attorneys' fees should not be reduced
based on the results of this round of document
I next consider the defendants' argument that any award should
exclude plaintiff's attorneys other than Mr. Spiegel. Defendants
posit that, because Mr. Spiegel was lead trial counsel
responsible for witness examinations and arguments to the jury,
all work performed by his co-counsel was duplicative and
unnecessary. Although the defendants' rationale is not altogether
clear, they appear to argue that because all of the evidence and
most of the legal argumentation in this action was funneled
through Spiegel, only Spiegel's time should have been included in
an attorneys' fees award.
The plaintiff proffered comprehensive time records for the
following individuals: 1.) Michael Spiegel, plaintiff's lead
trial counsel; 2.) Alicia Amezcua, a lawyer and associate of Mr.
Spiegel; 3.) Irum Taqi, another lawyer and associate of Mr.
Spiegel; 4.) Jeffrey Rothman, another of Mr. Spiegel's
associates; 5.) Larissa Chernock, a paralegal; and 6.) Lauren
Stephen-Davidowitz, another paralegal. (Spiegel Dec. Exs. A, C-D) Plaintiff also submits a declaration from Joshua Fuld
Nessen, a former associate of Spiegel's whose billing records
were lost in the attacks of September 11, 2001. (attached at
Spiegel Dec. Ex. C) Mr. Nessen proffers copies of memoranda that
reflect the results of his legal research for this case, and
estimates that he spent at least 40 hours working on this matter.
(Nessen Dec. ¶ 7) Scott A. Korenbaum, who assisted with legal
arguments at trial, has submitted a declaration setting forth
details as to the hours worked and services rendered since
October 2004. (Korenbaum Dec. Ex. B) Plaintiff also proffers
documentation supporting the $6,050.26 costs incurred in
litigating the claim, including copying expenses, costs for
on-line computer research, and transcript preparation fees and
compensation for a courtroom interpreter. (Spiegel Dec. Ex. E)
The defendants have not directed the Court to any portion of
the record to support their contention that plaintiff's attorneys
engaged in redundant services. Defendants challenge the work
performed by Ms. Amezcua. (Spiegel Dec. Ex. C) She spent roughly
17 hours researching and writing the motion to compel,
approximately 10 hours drafting and researching the Complaint,
and approximately four hours drafting interrogatories. (Spiegel
Dec. Ex. C) Mr. Spiegel spent approximately 2.5 hours reviewing
and revising the Complaint, approximately one hour working on
plaintiff's interrogatories, and approximately 13 hours
researching and writing the motion to compel. (Spiegel Dec. Ex.
A) I do not consider these amounts of time excessive or
redundant. Similarly, there appear to be no redundancies or
excesses in the billing records of Mr. Taqi, who spent a total of
9.8 hours preparing discovery materials that were provided to the
defendants, drafting a letter to opposing counsel on discovery
issues, and drafting the First Amended Complaint. (Spiegel Dec.
Ex. C) Defendants also argue that the paralegals utilized in this case performed
redundant tasks, an assertion that they do not support with any
citation to the record. I reject the defendants' contention that
the services rendered by Mr. Spiegel, his present and former
associates and paralegals were excessive, redundant or otherwise
Defendants have not set forth any basis for the Court to deny
attorneys' fees incurred by Mr. Korenbaum, who was co-counsel at
trial but not a part of Mr. Spiegel's law firm. Defendants argue
that it was excessive for Mr. Korenbaum and Mr. Spiegel to spend
25 hours researching and drafting in limine motions. (Def.
Mem. at 5) Moreover, they contend that Mr. Korenbaum's trial
presence was redundant. (Def. Mem. at 5) Both of these
contentions are without merit. The 25 hours spent on the in
limine motions was not excessive given the evidentiary issues
implicated therein. In addition, Mr. Korenbaum's trial role
focused on the legal and evidentiary issues that arose, as well
as witness preparation. (Korenbaum Dec. ¶ 13) This was neither an
unreasonable nor duplicative allotment of trial responsibilities.
I conclude that the fees incurred by the plaintiff's attorneys
are sought for prevailing claims, and that the plaintiff achieved
a level of success in his claims that warrant an award of
attorneys' fees under 42 U.S.C. § 1988.
Next, I consider whether the hourly rates sought by the
plaintiff are reasonable. "The statute and legislative history
establish that `reasonable fees' under § 1988 are to be
calculated according to the prevailing market rates in the
relevant community, regardless of whether plaintiff is
represented by private or nonprofit counsel." Blum,
465 U.S. at 886. "The legislative history explains that `a reasonable
attorney's fee' is one that is `adequate to attract competent
counsel, but . . . [that does] not produce windfalls to attorneys.'" Id. at 897 (ellipsis and
alteration in original). Coming on the heels of Hensley, Blum
reinforced that attorneys' fees under section 1988 should be
based upon an attorney's reasonable hours times a reasonable
rate. Id. at 897.
Plaintiff proffers declarations from two attorneys experienced
in litigating police misconduct actions. Robert L. Herber states
that in 2002, he was awarded fees at the then-current rate of
$400 per hour. (Herbst Dec. ¶ 11, attached at Spiegel Dec. Ex. B)
Jonathan C. Moore also states that in 2003, he was awarded
compensation at the rate of $400 per hour. (Moore Dec. ¶ 10,
attached at Spiegel Dec. Ex. B) These declarations are
uncontested by the defendants.
Mr. Spiegel's customary rate is $400 per hour. (Spiegel Dec. ¶
34) Mr. Korenbaum's customary rate is $325 per hour. (Korenbaum
Dec. ¶ 9) These rates are in keeping with other hourly rates
found reasonable by courts in this District. Davis v. New York
City Housing Authority, 2002 WL 31748586, at *3 (S.D.N.Y. Dec.
6, 2002) ($375 a reasonable hourly fee for seasoned litigator
with eighteen years' experience); Gonzalez v. Bratton,
147 F. Supp. 2d 180, 211-12 (S.D.N.Y. 2001) (collecting cases, with $425
per hour the highest rate cited). These hourly rates are
warranted in light of Mr. Spiegel's and Mr. Korenbaum's
experience. Mr. Spiegel received his law degree from New York
University in 1984, and subsequently clerked for a judge in this
District. (Spiegel Dec. ¶ 3) He has been litigating
constitutional claims since 1985, including police misconduct
cases. (Spiegel Dec. ¶¶ 3-5) Mr. Spiegel has litigated more than
20 police brutality cases and has represented a small number of
death-eligible criminal defendants. (Spiegel Dec. ¶¶ 9-10) Mr.
Korenbaum has practice law for sixteen years, including five
years at the New York City Law Department defending police misconduct actions
and other constitutional law claims. (Korenbaum Dec. ¶¶ 5, 8)
Mr. Spiegel spent a total of 490.9 hours on this case. (Spiegel
Dec. ¶ 34) Mr. Korenbaum spent 107.7 hours. (Spiegel Dec. ¶ 36)
Mr. Spiegel's associates recorded 159.1 hours on this case, at
the rate of $150 per hour, and his paralegals recorded 40.6 hours
at the rate of $75 per hour. (Spiegel Dec. ¶¶ 37-38) The billing
records are detailed as to the tasks performed by each attorney,
and billed to the tenth of an hour.
Considering that this action was actively litigated for nearly
four years, including multiple discovery disputes, a moderate
level of document production, five depositions, and preparation
for and the conduct of a four-day trial, plaintiff's attorneys
757.7 total hours (including the time of paralegals) is not
unreasonable. Moreover, based on the uncontested declarations of
Mr. Herber and Mr. Moore, and the declarations of Mr. Korenbaum
and Mr. Spiegel as to their hourly rates, I conclude that the
hourly rates are reasonable.
Having reviewed the billing records of plaintiff's attorneys
and their staff, I grant plaintiff's application for costs and
attorneys' fees in the amount of $264,322.76.
The defendants' motions pursuant to Rule 50 and Rule 59,
Fed.R.Civ.P., are DENIED, except to the extent that the defendants
seek a new trial and/or remittitur of the jury award on the false
arrest claim. A new trial on compensatory damages (other than
therapy expenses) arising out of the plaintiff's false arrest
claim is GRANTED, unless plaintiff accepts remittitur of damages
on the false arrest claim (other than for therapy expenses) from $1,000,000 to $360,000. Plaintiff shall,
in a written submission to be filed with the Court within 10 days
hereof, accept or reject the amount as remitted.
If remittitur is accepted, plaintiff's total damages (excluding
attorneys' fees) would be $464,000.
The plaintiff's application for costs and attorneys' fees is
GRANTED in the sum of $264,322.76.
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