The opinion of the court was delivered by: Gold, Steven M., U.S.M.J.:
Plaintiff, Melissa Stampf, asserts a variety of claims in this action.
After trial, the jury returned a verdict in plaintiff's favor on her
claim for malicious prosecution against her former co-worker,
defendant Angela Trigg. Stampf's claim is based on her allegation that
Trigg falsely told the police that Stampf improperly grabbed Trigg's
breast, leading to Stampf's arrest and prosecution.*fn1
The jury awarded plaintiff $200,000 in compensatory damages
for past emotional distress, $100,000 in compensatory damages for
future emotional distress, $30,000 in compensatory economic damages,
and $150,000 in punitive damages, for a total damages award of
$480,000. Defendant Trigg now moves for judgment as a matter of law, a
new trial, or remittitur. Def. Mem., Docket Entry 108.
A.Judgment as a Matter of Law
Trigg moves for judgment as a matter of law on Stampf's malicious prosecution claim pursuant to Federal Rule of Civil Procedure 50(b). Judgment as a matter of law may be granted under Rule 50 only if "the evidence, viewed in the light most favorable to the opposing party, is insufficient to permit a reasonable juror to find in her favor." Galdieri-Ambrosini v. Nat'l Realty & Dev. Corp., 136 F.3d 276, 289 (2d Cir. 1998).
The elements of a malicious prosecution claim under New York law are "(1) that the defendant commenced or continued a criminal proceeding against him; (2) that the proceeding was terminated in the plaintiff's favor; (3) that there was no probable cause for the proceeding; and (4) that the proceeding was instituted with malice." Kinzer v. Jackson, 316 F.3d 139, 143 (2d Cir. 2003). Trigg bases her motion on three grounds: (1) Stampf failed to establish that Trigg initiated a criminal proceeding against her, because (a) the issuance of a desk appearance ticket ("DAT") is not an initiation of a criminal proceeding and (b) even if issuance of a DAT commences a criminal proceeding, Trigg herself did not initiate the proceedings; (2) Stampf failed to establish that the criminal proceedings terminated in her favor; and (3) Stampf should be collaterally estopped from prevailing on her malicious prosecution claim in light of an arbitration award finding that Stampf improperly touched Trigg's breast. Def. Mem. 1. Each of defendant's arguments were raised previously in various motions, and I again reject them for substantially the same reasons.
Defendant first raised the argument that Trigg herself did not initiate the criminal proceedings in her motion for summary judgment, which I denied. Def. SJ Mem. 20-21, Docket Entry 44-12; M&O 19. The thrust of defendant's argument was that merely reporting a crime does not constitute initiating a criminal proceeding. As indicted in my decision, however, an individual who plays an active role in a prosecution, for example by encouraging the authorities to act, may be held liable for malicious prosecution. See Rohman v. New York City Transit Auth., 215 F.3d 208, 217 (2d Cir. 2000). See also Tadco Constr. Corp. v. Dormitory Auth. of the State of New York, 700 F. Supp. 2d 253, 270 (E.D.N.Y. 2010) (holding that providing false evidence to the police may support the first element of a malicious prosecution claim); Brown v. Sears Roebuck & Co., 297 A.D.2d 205, 210 (1st Dep't 2002) (same). Trigg's testimony at trial was that she told the police she had concern for her safety, causing the police to speak to and arrest Stampf. Tr. 400. This testimony provided the jury with a reasonable basis for finding that she encouraged the police to act. Moreover, as a participant in the underlying interaction with Stampf, Trigg knew whether Stampf grabbed her breast or not, and thus lied to the police when she accused Stampf if in fact Stampf never grabbed her breast. Stampf testified at trial that she did not grab Trigg's breast. Tr. 81. The jury's verdict indicates that the jurors believed Stampf's testimony that she did not grab Trigg's breast, and the jury's finding that Trigg deliberately lied to the police is itself sufficient to support a malicious prosecution claim. See Lupski v. County of Nassau, 32 A.D.3d 997 (2d Dep't 2006) (holding that, while "[m]erely giving false information to the authorities does not constitute initiation of the proceeding," malicious prosecution may be established if there is "an additional allegation or showing that, at the time the information was provided, the defendant knew it to be false, yet still gave it to the police"). Accordingly, this aspect of defendant's motion is denied.
In a letter motion seeking dismissal, Docket Entry 82, defendant argued that, as a matter of law, the issuance of a DAT does not commence a criminal proceeding and therefore may not form the basis of a malicious prosecution claim. In support of her argument, Trigg relied upon Puckowitz v. City of New York, 2010 WL 3632692 (S.D.N.Y. Sept. 17, 2010), and Garrett v. Port Authority of N.Y. & N.J., 2006 WL 2266298 (S.D.N.Y. Aug. 8, 2006). I denied that motion as well.*fn2 See Minute Entry for conference held on Dec. 2, 2010; Conf. held on Dec. 3, 2010 (no transcript available). Although I did not issue a written decision, I relied upon, and quoted at length from, the decision in Rosario v. Amalgamated Ladies' Garment Cutters' Union Local 10, 605 F.2d 1228, 1249-50 (2d Cir. 1979). After undertaking a detailed analysis of the issue, the Second Circuit concluded in Rosario that "if a New York court faced the question before us it would rule that the issuance of an Appearance Ticket commences a prosecution for purposes of determining whether an action for malicious prosecution lies." Id. at 1250.
Although Puckowitz and Garrett seem to support defendant Trigg's position, they do not address the Second Circuit's decision in Rosario or explain why Rosario does not control here. Indeed, in its post-trial motion, defendant is forced to resort to the argument that Rosario was wrongly decided. Def. Mem. 3. Of course, whether or not that is so is not for this Court to decide. Moreover, several other courts have followed Rosario and held that issuance of an appearance ticket provides a sufficient basis for a malicious prosecution claim. See, e.g., Tadco Constr. Corp., 700 F. Supp. 2d at 270 n.8; Lopez v. City of New York, 901 F. Supp. 684, 688 (S.D.N.Y. 1995); Snead v. Aegis Sec., Inc., 105 A.D.2d 1059 (4th Dep't 1984). See also Allen v. Town of Colonie, 182 A.D.2d 998 (3rd Dep't 1992) (reversing dismissal of malicious prosecution claim based on issuance of appearance ticket without discussing whether an appearance ticket is sufficient to trigger a malicious prosecution claim); N.Y. Pattern Jury Instructions-Civil 3:50 Comment (citing Rosario and Snead for the proposition that "[t]he issuance of an appearance ticket requiring a person to appear in a local criminal court (see CPL 150.10) is sufficient judicial activity for an action for malicious prosecution, even if an accusatory instrument is never filed"). In light of the clear Second Circuit authority supporting plaintiff's claim, this aspect of defendant's motion is denied as well.
In her final argument with respect to the elements of a malicious prosecution claim, defendant contends that plaintiff has failed to establish that the criminal proceedings were terminated in her favor. I rejected this argument when I denied defendant's motion for summary judgment. M&O 19-20. I review the issue again now in light of the evidence introduced at trial and the parties' submissions in connection with defendant's pending motion.
A form "declination of prosecution" was received in evidence during the trial. The form states in pertinent part that "[f]ollowing a review of the evidence and interviews with several witnesses, including the complaining witness, the People conclude that the case cannot be proven beyond a reasonable doubt. Consequently, the New York District Attorney's Office declines to prosecute this action at this time." Plaintiff's Trial Ex. 2, Docket Entry 108-4. Defendant argues that this declination did not constitute a favorable termination because it did not preclude the possibility that the charges could be renewed in the future.
Plaintiff, in support of her argument that the declination of prosecution constitutes a favorable termination, relies upon a provision in New York's Criminal Procedure Law stating that "a criminal action or proceeding against a person shall be considered terminated in favor of such person where . . . prior to the filing of an accusatory instrument in a local criminal court against such person, the prosecutor elects not to prosecute such person." Pl. Opp. 11, Docket Entry 109 (quoting N.Y. CRIM. PROC. LAW § 160.50(3)(i)). However, as defendant points out, Section 160.50(3) seems limited by its terms to defining favorable terminations for purposes of sealing records pursuant to Section 160.50(1). Def. Reply 9, Docket Entry 110. Indeed, an adjournment in contemplation of dismissal is defined as a favorable termination pursuant to Section 160.50(3)(b), yet well-settled case law establishes that it is not a favorable termination for purposes of a malicious prosecution claim. See, e.g., Rothstein v. Carriere, 373 F.3d 275, 287 (2d Cir. 2004).
Defendant cites supporting authority that, at least at first blush, seems to support her position. Def. Mem. 10 (citing Breytmen v. Olinville Realty, LLC, 46 A.d.3d 484 (1st Dep't 2007) (holding that a prosecutor's request for dismissal on the grounds that the People could not meet their burden at trial did not indicate innocence and therefore could not support a malicious prosecution claim)). However, New York courts have also held that even "[a] dismissal without prejudice qualifies as a final, favorable termination if the dismissal represents 'the formal abandonment of the proceedings by the public prosecutor.'" Smith-Hunter v. Harvey, 95 N.Y.2d 191, 197 (2000). Courts have also held that "[a]n affirmative demonstration of innocence is not required. What is required is a showing that the basis for dismissal was not inconsistent with innocence." Rivas v. Suffolk County, 326 F. Supp. 2d 355, 363 (E.D.N.Y. 2004).
In Verboys v. Town of Ramapo, 12 A.D.3d 665 (2d Dep't 2004), the Court held that there was sufficient evidence to support a malicious prosecution claim where the charges against the plaintiff were dismissed without prejudice. In reaching its decision, the Court in Verboys noted that the prosecution had conducted a full investigation and determined that the evidence was not sufficient to support the criminal charges. The same is true here; the declination form indicates that the conclusion that the evidence of guilt was insufficient to support a prosecution was reached after the complaining witness, presumably Trigg, and others were interviewed. Indeed, the prosecutor handling the criminal case against Stampf testified at trial that, at the time he prepared the declination of prosecution form, he had interviewed witnesses, determined the evidence was insufficient, and had no plans to continue investigating or prosecuting the case. Tr. 830-31, 834-35. Other courts have relied on Verboys to sustain malicious prosecution claims based upon criminal charges that were dismissed without prejudice. See, e.g., Landon v. County of Orange, 2009 WL 2191335, at *7 (S.D.N.Y. July 23, 2009) (finding a favorable termination where a prosecution was abandoned "under circumstances not inconsistent with [plaintiff's] innocence); Rohrs v. Rohrs, 17 A.D.3d 659 (2d Dep't 2005). For all these reasons, this aspect of defendant's motion is denied as well.*fn3
The final ground asserted by Trigg in support of her motion for judgment as a matter of law is that Stampf should be collaterally estopped from prevailing on her malicious prosecution claim in light of an arbitration award finding that Stampf improperly touched Trigg's breast. Defendant did not raise the arbitration award as a ground for her motion for judgment as a matter of law before the case was submitted to the jury, Tr. 844, and is therefore precluded from raising it now pursuant to Rule 50(b). "Because the Rule 50(b) motion is only a renewal of the preverdict motion, it can be granted only on grounds advanced in the preverdict motion." FED. R. CIV. P. 50 advisory committee's 2006 note. See also AIG Global Secs. Lending Corp. v. Banc of Am. Secs., LLC,386 Fed. Appx. 5, 6 (2d Cir. 2010) ("[A motion to enter a judgment as a matter of law] may be renewed after an unfavorable verdict, but limited only to the grounds specifically raised in the prior motion for judgment as a matter of law; new grounds may not be added post-trial."). Even if this ground could be raised, I would deny defendant's motion on the merits for the same reasons I previously stated in the Memorandum and Order I issued on November 16, 2010, Docket Entry 81, and on the record when I ruled on defendant's motion for reconsideration of my decision denying her motion for summary judgment, Tr. of 7/1/2010 at 4-8, Docket Entry 71.
For all these reasons, defendant's motion for judgment as a matter of law pursuant to Rule 50(b) is denied.
B.New Trial Pursuant to Rule 59
Defendant next moves for a new trial pursuant to Federal Rule of Civil Procedure 59 on the ground that various evidentiary rulings were made in error. Def. Mem. 11-18. Defendant also seeks a new trial on the issue of damages, contending that the jury impermissibly awarded damages for Stampf's arrest as opposed to solely for her prosecution. Def. Mem. 18-20.
A court "has significant discretion in deciding whether to grant a Rule 59 motion for a new trial." Manganiello v. Agostini, 2008 WL 5159776, at *8 (S.D.N.Y. Dec. 9, 2008) (citing Amato v. City of Saratoga Springs, 170 F.3d 311, 314 (2d Cir. 1999)). Unlike a Rule 50 motion, which calls upon a court to view the evidence in the light most favorable to the verdict winner, a court considering a Rule 59 motion "may independently weigh the evidence." Id. Nonetheless, a court should not grant a new trial unless the "court determines that, in its independent judgment, 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 omitted).
A court may grant a motion pursuant to Rule 59 if "substantial errors
were made in admitting evidence." Katt v. City of New York, 151 F.
Supp. 2d 313, 352 (S.D.N.Y. 2001) (internal quotation marks omitted).
Here, defendant contends that the court erred a) in admitting evidence
of Trigg's prior sexual behavior, b) in denying defendant's request to
admit evidence of an arbitration award, and c) ...