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Tretola v. County of Nassau

United States District Court, E.D. New York

April 16, 2014


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For Plaintiffs: Charles H. Horn, Esq., Steven J. Harfenist, Esq., Friedman, Harfenist, Kraut & Perlstein LLP, Lake Success, New York.

For Defendants: Joseph Nocella, Esq., Ralph J. Reissman, Esq., Nassau County Attorney's Office, Mineola, New York.


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DENIS R. HURLEY, Senior District Judge

Martin Tretola, Marbles Enterprises, Inc. d/b/a T& T Gunnery, brought suit against the County of Nassau and " Police Officer Faltings," alleging that he was falsely arrested for reckless endangerment on June 1, 2007 and was thereafter maliciously prosecuted for that purported offense.[1] The case was tried before a jury over a period of six days in August of 2012, at the conclusion of which the jury returned a verdict in plaintiffs' favor for $5,000,000, consisting of $2,000,000 in compensatory damages and $3,000,000 in punitive damages.

Presently before the Court is defendants' motion, made pursuant to Fed.R.Civ.P. 50(b), seeking a vacatur of that judgment in toto as a matter of law or, in the alternative, for either a new trial pursuant to Rule 59 or a conditional order of remittitur to reduce as excessive the compensatory and punitive damage awards. For the reasons set forth below, defendants' Rule 50(b) and Rule 59 motions are denied. However, the application for a conditional order of remittitur is granted.


Martin Tretola (" plaintiff" or " Tretola" )[2] is the owner and operator of Marbles Enterprises, Inc. d/b/a T& T Gunnery (" T& T Gunnery" ) which is in the business of selling and repairing firearms. It has two places of business, one being in Seaford and the other in Garden City, both in Nassau County, New York. Given the nature of T& T Gunnery's business, its stores are subject to unannounced inspections being conducted by, inter alia, members of the Pistol Licensing Bureau of the Nassau County Police Department. Tr. at 136.

I. Facts Pertaining to Tretola's Arrest for Reckless Endangerment

" Police Officer Faltings," whose first name is Eric, (hereinafter " Faltings" ), is a Nassau County police officer, assigned to the Pistol Licensing Bureau. On May 9, 2007 Faltings, as well as representatives from (a) the Nassau County Fire Marshal's Office, (b) the Federal Bureau of Alcohol Firearms and Tobacco (" ATF" ), (c) the Hempstead Building Department and (d) the Nassau County Bomb Squad conducted a joint inspection of T& T Gunnery's Seaford facility. As a result of that inspection, a number of summonses were issued including one by Fire Marshal Szymanski charging Marbles Enterprises, Inc.

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with having " Numerous Portable Fire Extinguishers Throughout the Premises That Have not Been Serviced as Required." (Defs.' Ex. A at 3.) Marble Enterprises, Inc. pled guilty to a lesser included offense in the Hempstead District Court of Nassau County on June 26, 2007. (Defs.' Ex. B.) The disposition of the other summons issued on May 9th is unclear.

Principal among the observations made by Faltings on May 9th was the location of what appeared to be a gas heater -- seemingly fueled by an active gas line -- in close proximity and on the same wall as two " bullet traps" [3] with surrounding indentations evidencing " bullet strikes." Tr. at 172. Faltings perceived that combination as " an extremely hazardous condition." Id. at 170. Based on that perception, considered in conjunction with Tretola's acknowledgment that he used the bullet traps in operating his business, id. at 179-81, Faltings believed he had probable cause to arrest plaintiff for reckless endangerment in the first degree in violation of New York Penal Law Section 120.25.[4] For some unexplained reason, the arrest was not made on the date of the inspection, i.e. May 9th, but rather three weeks thereafter on June 1st.

In making the arrest, Faltings assumed that the gas heater was operational. Tr. at 178-79. In fact, it was not. It had been disconnected from the outside gas meter more than a decade earlier. Tr. at 229. That fact, however, was not communicated verbally or otherwise to Faltings on or before May 9, 2007.

As to the period from the May 9th inspection to the June 1st arrest, defendants state that " there was never any testimony at trial that Faltings was ever made aware [during that time frame] that the gas line may have been inactive, if indeed it was." (Defs.' Mem. in Supp. at 12.) However that statement, although not controverted by plaintiff, is incorrect. Tretola testified that when he was contacted while upstate by Faltings after May 9th and told to return to Nassau County by June 1st so that he could be arrested for reckless endangerment, plaintiff stated, albeit cryptically and to no avail, that the contemplated charge was bogus since " there is no gas in the pipe." Tr. at 353-54. Be that as it may, however, Faltings, based on his observations of May 9th at T& T Gunnery, arranged for Tretola to be arrested at the Seventh Precinct on that June 1st date absent any effort on his part to determine the validity of Tretola's assertion about the operational status of the heater.

The core of the background information thus far recited is largely undisputed. The same may not be said of the events triggering the May 9, 2007 multiple agency inspections.

Defendants produced evidence suggesting that (1) law enforcement's focus on T& T Gunnery started with Detective Loretta Brennan's (" Brennan" ) inspection of the business's " second hand dealers book" on April 10, 2007 during which she discovered certain bookkeeping errors regarding two weapons that Tretola had not " put into his long gun book" id. at 709; (2) since the " long gun book is what pistol licensing checks," id., she provided " Officer Leahy"

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of the Pistol Licensing Bureau with " a copy of the pages of the secondhand book where [she] found the two purchases that weren't in the long gun book" id. at 710; (3) Detective Kevin Haig (" Haig" ), then " a supervisor in pistol licensing" remembered Faltings receiving the materials from Brennan, rather than Officer Leahy; in any event, Haig testified that he, not Faltings, was primarily responsible for the May 9, 2007 inspections at T& T Gunnery. Id. at 734-38.

Plaintiff's view of the evidence and corresponding arguments to the jury painted a totally different picture with Faltings orchestrating the May 9th " raid" with the overriding purpose being, pure and simple, to punish Tretola. And " raid," construing the evidence most favorably to plaintiff, is an apt term. As explained by Hank Brehl (" Brehl" ), Tretola's landlord, the " whole street" upon which T& T Gunnery fronted was cordoned off and " there were all sorts of agencies going into the store." Tr. at 234. The scene was one of " [c]haos" with " ATF", " DEC" and " the building department" among the multiple agencies on hand. Id. at 235. " [E]veryone," Brehl opined, " was following it on the news. It was kind of a big happening." Id. at 237.

Ample evidence is in the trial record to support plaintiff's view, beginning with a heated verbal exchange between Tretola and Faltings said to have occurred in " late 2006." Tr. at 330. At that time, Faltings asked Tretola to condense the paperwork in a particular case by eliminating one step in the process that Tretola believed was legally required for an out-of-state permit holder to possess a weapon in New York State. Id. at 330-32. Faltings felt that Tretola's position was unsound, id. at 99, but rather than arguing the point further, he gave Tretola " permission" to proceed absent the document which was the subject of the dispute, a so-called " purchase document." Id. at 332. Tretola refused to do so unless furnished with written authorization, which Faltings declined to provide. In the end, Tretola's understanding of the necessary procedure was implemented by the out-of-state gun owner and the matter seemingly concluded. Id. at 99-100. However, such was not the case.

Afer Tretola spoke to Faltings, Faltings understood that Tretola told a T& T Gunnery employee that Faltings, in effect, did not know what he was talking about and was a " fucking asshole." Tr. at 103. That employee inexplicably relayed Tretola's assessment to Faltings. Id.

Several months later, sometime in " February 2007," Tretola had occasion to be in the public area of the " pistol licensing section" of the police department. Id. at 183. Faltings, upon spotting Tretola, called him into a different section of the office, whereupon he pronounced " you will not refer to me as a fucking asshole or anybody else in this office as a fucking asshole. Am I making myself perfectly clear?" Id. at 125-126. Such utterances and conduct, Faltings explained would " not be tolerated." Id. at 126. Indeed, at trial, Faltings characterized his February 7th conversation with Tretola as an " admonish[ment]," much like he had given to " many other licensees" previously. Id. at 130.

Less than two months after Faltings took it upon himself to scold Tretola, Officer Brennan checked T& T Gunnery's records as previously explained. Although she took no immediate action herself in response to the irregularity encountered, she relayed the information to the pistol licensing section. That event, plaintiff posits, was the catalyst that permitted Faltings to severely punish Tretola for his temerity in (1) vociferously refusing to consummate a gun transaction absent a required purchase document and (2) in

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thereafter challenging the officer's competence.

Faltings's conduct at T& T Gunnery on May 9, 2007 cannot be written-off as all in a days work. From the time he started in pistol licensing in " January of 2001," Tr. at 82, through to the time of his deposition in this case, to wit October 28, 2009, Faltings had made only one arrest, that being the arrest of Tretola on June 1, 2007. Id. at 164-65. He had, of course, conducted a number of inventory inspections of licensed premises over the years. But in none of those did he ask members of ATF or of the local building department to join him in a joint inspection as he did here. Id. at 150-52. In fact, it appears that the intensity and scope of May 9th inspections were unprecedented in Faltings's experience as a member of the pistol licensing section.

II. Facts Pertaining to Tretola's Malicious Prosecution Claim

Who arranged for the May 9th inspections at T& T Gunnery was disputed at trial. The thrust of Haig's testimony was that he, as a supervisor in the pistol licensing section, was responsible. However, there was abundant evidence as earlier outlined, demonstrating that the May 9th inspections were attributable, in least in significant part if not totally, to Faltings.

It is undisputed that Faltings was the " arresting officer" for, as he explained, he signed the June 1, 2012 felony complaint and swore to its accuracy. Tr. at 164; see also Tr. at 131. Faltings also took it upon himself to direct Tretola to return to Nassau County from upstate New York for purpose of being arrested at 7:00 a.m. on June 1st at the Seventh Precinct. Tr. at 353-54.

At this point and against the above background information, attention will now be directed to the legal standards governing the relief sought by defendants, followed by statements of the parties' respective positions and the Court's analysis of those position.


I. Legal Standards

A. Motion for Judgment as a Matter of Law -- Rule 50(b)

" The standard governing motions for judgment as a matter of law [ ] pursuant to Rule 50 [of the Federal Rules of Civil Procedure], formerly denominated motions for directed verdict or motions for judgment notwithstanding the verdict, is well established." Galdieri-Ambrosini v. Nat'l Realty & Dev. Corp., 136 F.3d 276, 289 (2d Cir. 1998)(internal citation omitted). A Rule 50 motion " 'may only be granted if there exists 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 the evidence in favor of the movant is so overwhelming that reasonable and fair-minded [persons] could not arrive at a verdict against [him].'" Kinneary v. City of New York, 601 F.3d 151, 155 (2d Cir. 2010)(alterations in original) (quoting Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 133 (2d Cir. 2008)). In considering the motion, " [a] court 'must give deference to all credibility determinations and reasonable inferences of the jury,' and may not weigh the credibility of witnesses or otherwise consider the weight of the evidence." Caruolo v. John Crane, Inc., 226 F.3d 46, 51 (2d Cir. 2000)(quoting Galdieri-Ambrosini, 136 F.3d at 289); see also This is Me, Inc. v. Taylor, 157 F.3d 139, 142 (2d Cir. 1998) (The issue on a Rule 50 motion is whether " '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

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as to the verdict that reasonable [persons] could have reached.'" ) (quoting Cruz v. Local Union No. 3, Int'l Bd. of Elec. Workers, 34 F.3d 1148, 1154-55 (2d Cir. 1994)).

B. Motion for a New Trial -- Rule 59

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.'" Patrolmen's Benevolent Ass'n of City of New York v. City of New York, 310 F.3d 43, 54 (2d Cir. 2002) (quoting Atkins v. New York City, 143 F.3d 100, 102 (2d Cir. 1998)). " A new trial may be granted, therefore, when the jury's verdict is against the weight of the evidence." DLC Mgmt. Corp. v. Town of Hyde Park, 163 F.3d 124, 133 (2d Cir. 1998). " Unlike judgment as a matter of law, a new trial may be granted even if there is substantial evidence supporting the jury's verdict." Id. at 134; accord Manley v. AmBase Corp., 337 F.3d 237, 244 (2d Cir. 2003). On a motion for a new trial pursuant to Rule 59, a court may weigh the evidence and need not view the evidence in a light most favorable to the party that prevailed at trial. See Song v. Ives Labs., Inc., 957 F.2d 1041, 1047 (2d Cir. 1992). Indeed, " the district court is permitted to 'examine the evidence through its own eyes.'" Green v. City of New York, 359 F.App'x 197, 199 (2d Cir. 2009) (summary order) (quoting Meloff v. New York Life Ins. Co., 240 F.3d 138, 147 (2d Cir. 2001)). " A court considering a Rule 59 motion for a new trial must bear in mind, however, that the court should only grant such a motion when the jury's verdict is egregious. Accordingly, a court should rarely disturb a jury's evaluation of a witness's credibility." DLC Mgmt., 163 F.3d at 134 (internal quotation marks and citations omitted).

II. Listing (With Analyses to be Provided, Infra) of Parties' Arguments Regarding Jury's Liability Determinations

A. Defendants' Arguments as Movant

In seeking relief from the jury's liability finding, defendants advance two alternative arguments with respect to the false arrest claim: (1) Tretola's June 26, 2007 plea of guilty to a lesser included offense under the Fire Code appearance ticket issued to Marbles Enterprises, Inc. by Fire Marshal Szymanski on May 9, 2007 provides probable cause for the reckless endangerment arrest (" First Argument" ), and (2) the bullet strikes on the wall near what appeared to be a gas-fired heater and accompanying fuel line also provided probable cause for that arrest (" Second Argument" ). Should the Court conclude otherwise, arguable probable cause existed to arrest Tretola thereby, defendants argue, insulating Faltings from personal liability under the federal causes of action.

With respect to the malicious prosecution claim, defendants contend " that the District Attorney's Office, not Faltings, determined to prosecute, and continued to prosecute, Tretola after the arrest on June 1, 2007." (Defs.' Mem. at 17.)

B. Plaintiff's Arguments in Opposition

Plaintiff contests the substance of defendants' First Argument regarding the false arrest claim on several disjunctive grounds, including that the corporation Marbles Enterprises, Inc. was the sole named defendant in People v. Marbles Enterprises, Inc., and, accordingly, its plea to the charge does not represent an admission by the plaintiff Tretola. That ground, as discussed infra, is dispositive of the issue thereby rendering plaintiff's alternate arguments academic.

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With respect to defendants' Second Argument directed at plaintiff's false arrest claim, plaintiff contends that defendants' probable cause argument concerning the reckless endangerment arrest is flawed because (1) it fails to address the elements of the crime charged including its mens rea requirement, (2) absent from the record is evidence indicating that Tretola discharged firearms in close proximity to the perceived gas meter and gas lines, (3) allowing others to utilize a firearm testing facility does not permit a reckless endangerment charge being leveled against the owner or operator of the facility, and (4) ...

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