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Vilkhu v. City of New York

March 2, 2009


The opinion of the court was delivered by: Sifton, Senior Judge.


Plaintiff Harwinder Vilkhu ("Vilkhu") commenced this action on May 5, 2006 against defendants the City of New York ("City"), Police Officer and/or Sergeant Hoehl ("Hoehl"), and Adam Jangel ("Jangel") (collectively, "defendants"),*fn1 alleging that defendants violated his rights under 42 U.S.C. §§ 1983, 1981 and the New York State Constitution, and raising state tort claims. A jury trial took place between September 29, 2008 and October 14, 2008. The jury returned a verdict in favor of plaintiff and awarded him $20,000 in compensatory damages. Presently before this Court is defendant's motion for a new trial pursuant to Federal Rule of Civil Procedure 59 ("Rule 59"). For the reasons set forth below, defendant's motion is denied.


Familiarity with the factual background of the case is presumed based on the record of prior proceedings before the undersigned. For a description of the underlying facts, see Vilkhu v. City of New York, No. 06-CV-2095, 2008 WL 1991099, at *1-4 (E.D.N.Y. May 4, 2008). What follows is a procedural history of the parties' relevant motions during and after trial.

Admission of "Similar Act" Evidence

By motion in limine, plaintiff sought permission to introduce at trial evidence of prior complaints against the individual defendants. I reserved decision on the application, noting that pattern evidence is appropriate where a question exists as to an individual's identity, but that no such issue had been raised. Transcript of September 25, 2008 Oral Argument at 6. At trial, during cross-examination of plaintiff, counsel for defendants engaged in a line of questioning concerning the name of the officer who allegedly assaulted plaintiff. Transcript of Trial Proceedings ("Tr.") at 196-99.*fn2 I summoned counsel to the sidebar and warned defendants that I had not realized there might be a dispute concerning identity, and that if such a dispute existed, the pattern of conduct evidence might be admissible.

Tr. at 200:2-7. Subsequently, counsel for defendants again questioned a witness concerning the identity of the officers who allegedly assaulted plaintiff. Tr. at 713-15.*fn3 Following this testimony, plaintiff renewed his application to introduce evidence concerning defendants' prior similar acts and to cross-examine defendants concerning those acts, Tr. at 750, and I granted the application. Tr. at 779-82.

Omission of Nominal Damages Charge

At a charge conference held on October 9, 2008, I read my proposed charges to counsel for both sides and requested that any exceptions be taken at that time. My proposed charges included an instruction on nominal damages, which defendants, but not plaintiff, had requested. Tr. at 1155:6-8, 1178:5-13. Plaintiff objected to the nominal damages charge. Tr. at 1182:7-9. I directed counsel for plaintiff to submit case law in support of plaintiff's position by the end of the day. Tr. at 1182:18-20.

On October 10, 2008, counsel for both parties delivered their summations to the jury. Defendants argued, inter alia, that the evidence presented at trial showed that plaintiff had suffered no medical injury. Tr. at 1265, 1273-84, 1286-87. After summations were complete, counsel for plaintiff handed a letter to the bench setting forth plaintiff's objection to a charge on nominal damages and including relevant case law. Tr. at 1314:22-23; Letter of Kennisha A. Austin dated October 10, 2008. Defendants responded by letter dated October 13, 2008, reiterating their request for a nominal damages charge. Letter of Arthur G. Larkin and Robyn Pullio dated October 13, 2008.

On October 14, 2008, I charged the jury. I did not include an instruction on nominal damages. At sidebar, defendants took exception to the absence of the nominal damages instruction. Tr. at 1355:4-7, 22-23. I ruled that the jury would not be instructed on nominal damages because plaintiff had not sought them. Tr. at 1355:6-7. Subsequently on the same day, during its deliberations, the jury sent a note to the Court stating as follows: "How do we determine compensatory damages? (A) Guess at expenses? (B) review some reference material." Tr. at 1360:4-6. After the jury's note was read to the parties, defense counsel reiterated defendants' request for a charge on nominal damages. Tr. at 1359:18-19. I denied the request on the grounds that it was plaintiff's prerogative to request or forego a nominal damages charge. Tr. at 1359:20-25.*fn4


I. Rule 59 Standard

Rule 59 provides that a new trial may be granted "for any reason for which a new trial has heretofore been granted in an action at law in the in federal court." Fed. R. Civ. P. 59(a). The Second Circuit has held that a motion for a new trial may be granted when "the jury has reached a seriously erroneous result or its verdict is a miscarriage of justice," Nimely v. City of New York, 414 F.3d 381, 392 (2d Cir. 2005) (internal quotation marks and citations omitted), or the verdict is "egregious." DLC Mgmt. Corp. v. Town of Hyde Park, 163 F.3d 124, 134 (2d Cir. 1998) (quoting Dunlap-McCuller v. Reese Org., 980 F.2d 153, 158 (2d Cir. 1992)). A motion for a new trial may be granted even if there is substantial evidence to support the jury's verdict. The court "is free to weigh the evidence, and need not view it in the light most favorable to the verdict winner." DLC Management Corp., 163 F.3d at 134 (citing Song v. Ives Labs, Inc., 957 F.2d 1041, 1047 (2d Cir. 1992)). However, "[w]here the resolution of the issues depended on ...

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