The opinion of the court was delivered by: Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
Plaintiffs Necdet Aktas and Lisa Filomia-Aktas commenced the within action against defendants alleging various contractual and negligence claims arising out of work performed at their home on 223 Mill Creek Road in Adirondack, New York. Presently before the Court is plaintiffs' motion for judgment as a matter of law pursuant to Rule 50(b) of the Federal Rules of Civil Procedure and a new trial pursuant to Rule 59 of the Federal Rules of Civil Procedure. (Dkt. No. 197). JMC Construction Co., Inc. ("JMC") opposes the motion. (Dkt. No. 198). In addition, Stephen M. Jung ("Jung") requests that the Court apply General Obligations Law 15-108 to the jury's verdict. (Dkt. No. 196). No party has responded to that application.
Familiarity with the facts of this case is assumed based on this Court's previous Memorandum--Decision and Order. See Aktas v. JMC Constr. Co., Inc, et. al., 09--CV--1346 Dkt. No. 125 (June 28, 2012). The trial in this action commenced on January 7, 2013 and was eight days in length. Numerous witnesses were called to testify and many documents were admitted into evidence. While plaintiffs move for judgment as a matter or law and a new trial, plaintiffs did not cite to any testimony, evidence or portion of the trial transcript in support of the application.
After trial, the jury found that plaintiffs had proven that defendant Jung breached an implied contract and awarded plaintiffs $3,500.00 in damages on that claim. On the negligence claims, the jury found that Jung and plaintiffs were negligent and apportioned fault as follows:
50% to plaintiffs and 50% to Jung. The jury awarded plaintiffs $50,000.00 on the negligence claims. The jury also found that defendant JMC had proven that plaintiffs breached their contract and awarded JMC $20,000.00 in damages on that counterclaim.
A. RULE 50(B) MOTION OF JUDGMENT AS A MATTER OF LAW
The standard governing a Rule 50 motion for judgment as a matter of law is well settled:
Judgment as a matter of law may not properly be granted under Rule 50 unless the evidence, viewed in the light most favorable to the opposing party, is insufficient to permit a reasonable juror to find in her favor. In deciding such a motion, the court must give deference to all credibility determinations and reasonable inferences of the jury, and it may not itself weigh the credibility of witnesses or consider the weight of the evidence.
Galdieri--Ambrosini v. Nat'l Realty & Dev. Corp., 136 F.3d 276, 289 (2d Cir.1998) (internal citations omitted).
Consequently, a court should not enter judgment as a matter of law unless: (1) 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 (2) there is such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded [persons] could not arrive at a verdict against [it]. Cruz v. Local Union No. 3, 34 F.3d 1148, 1154 (2d Cir.1994) (quoting Bauer v. Raymark Indus., Inc., 849 F.2d 790, 792 (2d Cir. 1988) (internal quotation marks omitted)).
On a post-trial motion for judgment as a matter of law, the moving party must fulfill the procedural prerequisite of moving for judgment as a matter of law before the case was submitted to jury. See Fed.R.Civ.P. 50(a)(2); ...