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Velez v. Bell

June 22, 2006


The opinion of the court was delivered by: John G. Koeltl, District Judge


This action, which alleged violations of the plaintiffs' rights under the United States Constitution, was brought pursuant to 42 U.S.C. § 1983 and was tried before a jury. The plaintiff Lissette Velez ("Ms. Velez") brought this action on behalf of herself and her two minor children against the City of New York and various current and former officers of the New York City Administration for Children's Services ("ACS") alleging violations of the plaintiffs' constitutional rights in connection with the initial seizure and continued retention of the children by ACS. The prior history and allegations in the case are detailed in this Court's prior opinion denying in substantial part the motion for summary judgment by the defendants, familiarity with which is assumed. See Velez v. Reynolds, 325 F. Supp. 2d 293 (S.D.N.Y. 2004).*fn1

The plaintiffs moved, at the close of the presentation of their case, for judgment as a matter of law under Rule 50 of the Federal Rules of Civil Procedure, and the defendants cross-moved for judgment as a matter of law under Rule 50 as well. The Court reserved decision on the motions at that time, and no further evidence was presented. After the defendants rested, the motions were renewed and the Court again reserved decision. Following a verdict in favor of the defendants on all claims, the plaintiffs additionally moved for a new trial pursuant to Rule 59 of the Federal Rules of Civil Procedure on the ground that the verdict was against the weight of the evidence. For the following reasons, the plaintiffs' motions are denied and the defendants' motion is denied as moot.


It is well-established that a district court should deny a Rule 50 motion unless "viewed in the light most favorable to the nonmoving party, 'the evidence is such that, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, there can be but one conclusion as to the verdict that reasonable [persons] could have reached.'" Cruz v. Local Union Number 3 of the Int'l Bhd. of Elec. Workers, 34 F.3d 1148, 1154-55 (2d Cir. 1994) (quoting Simblest v. Maynard, 427 F.2d 1, 4 (2d Cir. 1970)) (alteration in original); see also Fowler v. N.Y. Transit Auth., No. 96 Civ. 6796, 2001 WL 83228, at *1 (S.D.N.Y. Jan. 21, 2001); Dailey v. Société Générale, 915 F. Supp. 1315, 1321 (S.D.N.Y. 1996), aff'd in relevant part, 108 F.3d 451, 457-58 (2d Cir. 1997).

A trial court considering a motion under Rule 50(b) motion "must view the evidence in a light most favorable to the non-movant and grant that party every reasonable inference that the jury might have drawn in its favor." Samuels v. Air Transp. Local 504, 992 F.2d 12, 16 (2d Cir. 1993). A jury verdict should be set aside only when "there is such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise and conjecture, or [where there is] such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded [jurors] could not arrive at a verdict against [the movant]." Logan v. Bennington Coll. Corp., 72 F.3d 1017, 1022 (2d Cir. 1996) (internal quotations and citations omitted) (alteration in original); see also Dailey, 915 F. Supp. at 1321.

In the alternative, the plaintiffs move for a new trial pursuant to Rule 59. See Fed. R. Civ. P. 59(a).*fn2 In determining whether a new trial is appropriate under Rule 59(a), a court makes the same type of inquiry as on a motion for judgment as a matter of law, but it imposes a less stringent standard. See Katara v. D.E. Jones Commodities, Inc., 835 F.2d 966, 970 (2d Cir. 1987). A Rule 59(a) motion "ordinarily should not be granted unless the trial court is convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice." Patrolmen's Benevolent Assoc. v. City of New York, 310 F.3d 43, 54 (2d Cir. 2002) (internal quotations omitted); Katara, 835 F.3d at 970; Newmont Mines Ltd. v. Hanover Ins. Co., 784 F.2d 127, 132 (2d Cir. 1986); Fowler, 2001 WL 83228 at *2.


There was sufficient evidence introduced at trial from which the jury could have found as follows. In November 1997, the plaintiff Ms. Velez was living in an apartment in the Bronx, New York, with her sons John Velez ("John") and Steven Pagan ("Steven"), who were 6 and 5 years old, respectively, at that time. On November 19, 1997, an anonymous report was submitted to the New York State Central Registry alleging, among other things, that John was late to school many times, Ms. Velez was being physically assaulted by her "live-in boyfriend" (who the jury could conclude was Steven's father) in the presence of the children, that the mother is a drug/alcohol abuser, and that the children were not getting a minimum degree of care. The defendant Evelyn Ortiz ("Ortiz"), an officer of the ACS, visited the Velez residence the following day. While the initial report was determined to be unfounded, there were further reports and Ortiz returned to visit the family on numerous occasions over the following several months. (Tr. 99-109, 116-17, 1260, 1264-65; Pls.' Ex. 1, 2.) In the summer of 1998, Ortiz lost track of the family's whereabouts because they were no longer living in the same apartment. (Tr. 374-78, 1275-76.)

On September 17, 1998, Ortiz received notification from the school that John and Steven attended that another incident of domestic violence between Steven's father and Ms. Velez had taken place, and went to the school with a supervisor. (Tr. 120-22.) After meeting with Cruz, the school principal, John Velez, and Ms. Velez, Ortiz decided, along with her supervisor, to take the children into ACS custody immediately. (Tr. 122-27, 380-81.) No prior court authorization for this course of action had been granted. The following day, September 18, 1998, Ortiz filed a neglect petition relating to each child in the Bronx Family Court and a brief hearing was held at which an appointed attorney agreed, on behalf of Ms. Velez, that the children be remanded to ACS custody pending an additional fact-finding hearing. (Tr. 189-90, 208-09, 386-88; Pls.' Exs. 11 & 48) ACS placed John and Steven in foster care with their respective paternal grandmothers. (Tr. 127-28, 388-90.)

On November 30, 1998, a fact-finding hearing on the matter was held in the Bronx Family Court. (Tr. 209-11.) Ortiz was the sole witness; Ms. Velez did not attend but was represented at the hearing by appointed counsel. (Tr. 209-10, 398-400.) Following that hearing, Judge Allen Alpert of the Bronx Family Court entered orders requiring Ms. Velez to complete domestic violence counseling, substance abuse counseling, and parenting skills classes, and remanding John and Steven to ACS custody for a period of up to one year, and ordering that they reside with their respective paternal grandmothers. (Pls.' Ex. 53; Defs.' Ex. Q.)

Those orders expired, or lapsed, on November 30, 1999. (Tr. 457-59.) On August 2, 2000, the defendant Kathia Brown ("Brown"), an ACS case manager who entered ACS employment in January 2000 and assumed responsibility for Ms. Velez's case in April 2000, filed a new neglect petition in the Bronx Family Court, alleging that Ms. Velez had failed to complete the prescribed programs and requesting that the children remain in ACS custody. (Tr. 458-61; Pls.' Exs. 16 & 55.) On August 2, 2000, the New York Family Court ordered that the children remain in ACS custody until the next court date. (Tr. 506.)

The August 2000 petition, like the earlier petition filed by Ortiz, was later granted by order dated April 4, 2001. (Tr. 509-12; Defs.' Ex. BBB.) In these orders, Judge Alpert found that Ms. Velez had failed to comply with the family service plan prescribed in the November 30, 1998 order, and continued ACS custody of the children until April 4, 2002. (Defs.' Ex. BBB.)

On June 28, 2001, the Child Development Support Corporation (the "CDSC"), a foster care agency assigned to administer the children's foster care, reported to the Family Court that Ms. Velez had completed all of the social service requirements set forth in the November 30, 1998 Family Court order, and the only barrier to her regaining custody of the children was that she lacked adequate housing. (Tr. 519-20; Defs.' Ex. GGG.) In the summer of 2001, Ms. Velez was living in the two-bedroom apartment with her boyfriend and his mother, sharing a bedroom with her boyfriend. (Tr. 1328.) ACS did not consider Ms. Velez's housing suitable for the children. (Tr. 582-83.)

On February 15, 2002, with the assistance of a Section 8 voucher, Ms. Velez moved into a two-bedroom apartment in the Bronx. (Tr. 594-98; Defs.' Ex. RRR.) On February 28, 2002, following a trial discharge conference, Brown signed a trial discharge form returning the children to Ms. Velez's custody on a provisional basis. (Tr. 444-47, Pls.' Ex. 14.) On June 25, 2002, following a final discharge conference, Brown signed a final discharge form fully ...

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