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Farganis v. Town of Montgomery

April 29, 2010



Plaintiff Peggy Farganis has Multiple Sclerosis, as a result of which her speech is slurred, she has weakness in her lower extremities, her balance is compromised, she walks with a limp and her foot drags when she walks. On March 18, 2005, plaintiff was arrested and charged with Endangering the Welfare of a Child. On or about July 11, 2006, plaintiff commenced an action against the Town of Montgomery and several of its police officers, alleging disability discrimination pursuant to Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12132 et seq., the Rehabilitation Act ("RA"), 29 U.S.C. § 794, and the Equal Protection clause of the Fourteenth Amendment, as made actionable by 42 U.S.C. § 1983. On or about December 21, 2007, plaintiff commenced a second action alleging false arrest, malicious prosecution and violation of procedural due process against three of the individual police officers named in the original action. Both actions were thereafter consolidated.*fn1

Following resolution of defendants' motions for summary judgment, plaintiff's remaining cause of action was her claim against the Town of Montgomery for discrimination under Title II of the ADA, on the ground that the arresting officers were motivated by either discriminatory animus or ill will due to her disability. Plaintiff's claim was tried before a jury beginning on January 19, 2010. On January 22, 2010, the jury returned its verdict in favor of defendant. This Court entered judgment for defendant on January 26, 2010. Presently before this Court is plaintiff's motion for a new trial pursuant to Rule 59 of the Federal Rules of Civil Procedure ("FRCP"). For the reasons that follow, plaintiff's motion is denied.


A court may grant a new trial pursuant to FRCP 59 "in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted." Fed. R. Civ. Proc. 59(a). Generally, a new trial may be warranted if "the verdict is against the weight of the evidence, damages are excessive, the verdict is inconsistent, substantial errors were made in admitting or excluding evidence, or in charging the jury, or because a material issue was improperly submitted or withdrawn from a jury." Dewitt v. New York State Hous. Fin. Agency, No. 97 Civ. 4651, 1999 WL 672560, at *1 (Aug. 26, 1999) (internal quotation and citation omitted). Rule 59's threshold for granting a new trial is lower than Rule 50's threshold for granting judgment as a matter of law because the trial judge "is free to weigh the evidence himself and need not view it in the light most favorable to the verdict winner." United States v. Landau, 155 F.3d 93, 104 (2d Cir. 1998) (internal quotation and citation omitted). Thus, "a motion for a new trial may be granted even if there is substantial evidence to support the jury's verdict." Caruolo v. John Crane, Inc., 226 F.3d 46, 54 (2d Cir. 2000). However, "[a] motion for a new trial 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." Hugo Boss Fashions, Inc. v. Federal Ins. Co., 252 F.3d 608, 623 (2d Cir.2001).


Here, plaintiff asserts that she is entitled to a new trial because the Court erroneously: (1) precluded plaintiff's husband's testimony regarding two phone calls allegedly made by a town police officer; and (2) allowed defendant to question plaintiff about her 1996 conviction for petty larceny. It is well-settled that trial courts are afforded "wide latitude in determining whether evidence is admissible at trial." See Meloff v. New York Life Ins. Co., 240 F.3d 138, 148 (2d Cir. 2001). Further, under FRCP 61, an error in admitting or excluding evidence is not grounds for granting a new trial unless the error affects a party's "substantial rights." See Fed. R. Civ. P. 61. "Whether an evidentiary error implicates a substantial right depends on the likelihood that the error affected the outcome of the case." Tesser v. Board of Educ., 370 F.3d 314, 319 (2d Cir. 2004) (quotation and citation omitted). "Thus, an evidentiary error in a civil case is harmless unless [the party seeking post-verdict relief demonstrates that] it is likely that in some material respect the factfinders' judgment was swayed by the error." See id.

A. Plaintiff's Husband's Testimony

Plaintiff's counsel called Dan Farganis to testify, and attempted to elicit testimony from him regarding two telephone calls he allegedly received while he was at the hospital with his son. It had already been established that the police had taken plaintiff's cell phone from her when they booked her at the police station. Mr. Farganis testified that he received a call and the incoming phone number was Peggy's. He further testified that he answered the phone, and "one of the officers from Montgomery" was on the other end, "yelling and screaming and raising his voice saying that Peggy . . . " (10).*fn2 Defendant then objected.

After the jury was excused, plaintiff offered the following proffer regarding the testimony he sought to elicit from Mr. Farganis:

Yes, he's going to testify that the phone rang, it was from Peggy's phone, but it wasn't Peggy, it was a male who began screaming and yelling and making comments that he's an accident reconstructionist, Peggy has MS and she shouldn't be driving. And Dan then debated the issue with him and said, yes, she can. And the officer was saying the same things to Dan that Barnett was saying to Peggy.

So, you know, we can presume that it was Barnett who made this phone call. There were actually two calls back to back, the same conversation, the same yelling. They took Peggy's phone at the police station, we know that.

Who else made the call? I think the only person you can presume made the call was Officer Barnett. So how -- that's not hearsay, it's an adverse admission by a town police officer whose very acts and state of mid are at issue in this trial (11).

The discussion then turned to the sufficiency of the identity of the caller (11-13):

MR. WALSH: An unidentified town police officer. They have no idea ...

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