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Brink v. Muscente

United States District Court, S.D. New York

September 23, 2014

CYNTHIA BRINK, Plaintiff,
v.
FRANCENE MUSCENTE, AL DePIERRO and THE CITY OF YONKERS, Defendants.

OPINION AND ORDER

EDGARDO RAMOS, District Judge.

This action arose from a dispute concerning the enforcement of a local sign ordinance in Yonkers, New York. Plaintiff Cynthia Brink (the "Plaintiff" or "Brink") commenced this action against the City of Yonkers (the "City") and two of its sign code enforcement officials, Francine Muscente ("Muscente") and Al DePierro ("DePierro, " and together with Muscente and the City, "Defendants"), alleging claims for (1) First Amendment retaliation under 42 U.S.C. § 1983 and (2) malicious prosecution under New York state law. The gravamen of Plaintiff's claim is that Defendants unlawfully targeted her-including by initiating a criminal case against her for alleged violations of the City Code-because they disapproved of the content of the signs that she posted in her yard, which criticized certain public officials. Following a jury trial before the undersigned, the jury returned a verdict in favor of Defendants on both counts.

Presently before the Court is Plaintiff's motion for a new trial pursuant to Rule 59 of the Federal Rules of Civil Procedure. Doc. 62. Plaintiff contends that the jury verdict is seriously erroneous, against the weight of the evidence and amounts to a miscarriage of justice. For the reasons set forth below, the motion is DENIED.

I. Factual Background[1]

As discussed at length in the Court's summary judgment opinion, the Yonkers City Code forbids the posting of signs on public property without a permit, but allows temporary signs to be posted on private property without requiring a permit. Doc. 38 (citing Y.C.C. §§ 47-1, 47-3, 47-6; 47-10). Plaintiff posted a number of signs on her property, some of which generally criticized certain Yonkers public officials or could otherwise fairly be described as containing political commentary. Plaintiff conceded that she never obtained a sign permit for any of her signs, but contended that she did not need such a permit because the signs that she posted were temporary and located on her own property. The chief factual disputes that the Court could not resolve on summary judgment, and therefore had to be submitted to a jury, included (1) whether Plaintiff posted her signs on public or private property, (2) whether Defendants had probable cause to issue violations of the City Code to Plaintiff, and (3) whether Defendants issued such violations based upon any improper motive. Id.

A jury trial in this matter began on May 13, 2014. The jury heard direct testimony and cross-examination from the following witnesses: Plaintiff; Steven Brink, Plaintiff's brother; Defendants Muscente and DePierro; and Conrad Orey, a former City employee who supervised Muscente. Maria Aff. Ex. D (Trial Tr. 14:2-14:13, May 14, 2014), Doc. 68; id. at Ex. G (Trial Tr. 2:9-2:16, May 14, 2014).

Perhaps unsurprisingly, the parties presented competing factual narratives at trial. Plaintiff testified that Muscente issued violations to her for her signs because they contained messages of which Muscente did not approve. As a result of the tickets, Plaintiff was compelled to attend a hearing in February 2010 concerning her signs. Bellantoni Decl. Ex. 1 (Trial Tr. 15:18-17:3, May 13, 2014), Doc. 63. In addition to Plaintiff, Muscente, Conrad Orey and Steven Brink attended the hearing. Id. At trial, Plaintiff testified as follows regarding the substance of the hearing:

Q. What was the sum and substance of the conversation between Ms. Muscente and yourself and your brother?
A. I could not have my signs. Shut up. Go away. You're not allowed. I make the rules here. That's basically what the substance was. It's not going to happen. They got to come down.
But I can have my gravestone tombstones for Halloween down on the front lawn. I can have Go Yankees, which we did have a huge sign up for Go Yankees. It was across our house because we're all Yankee fans. You can have Merry Christmas, which I have two huge signs. One of them sparkles all over. You can have - you can have anything, but you can't have anything like these. You cannot criticize or make a statement. You cannot tell anyone what you want to say. But I could have all the other signs. And she said don't worry, I don't bother coming out for the other signs; meaning the Merry Christmas and stuff.
Q. I'm sorry. She doesn't bother coming?
A. She doesn't bother coming out for Christmas signs and Go Yankees and things like that. She'll only come out for these signs.

Id. at 16:8-17:3. Regarding the procedure for obtaining a sign permit, Plaintiff further stated:

Q. What specifically did [Muscente] say with respect to submitting a proposed sign to her as part of the permit application?
A. Yes. She will get to decide whether or not it can be a sign... Whether the wording on the sign was okay with her.

Id. at 17:21-18:3. After the hearing, Plaintiff did not remove her signs, and testified that she received another ticket for displaying signs without a permit from Muscente, as well as a warning notice from DePierro for the offense of illegally "post[ing] private signs on City property" and a ticket for displaying private signs on the "City ...


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