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Figueroa v. Mazza

United States District Court, E.D. New York

September 30, 2014


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[Copyrighted Material Omitted]

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For Eli Samuel Figueroa, a/k/a Eli Samuel: Robert M. Rambadadt, The Rambadadt Law Office, New York, NY; Rosa L. Barreca, Barreca Law, Philadelphia, PA.

For DonnaMarie Mazza, Christopher Karolkowski, Todd Nagrowski, Joseph Failla, Dennis Chan: Joseph A. Marutollo, Virginia Nimick, New York City Law Department, Special Federal Litigation Unit, New York, NY.

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Jack B. Weinstein, Senior United States District Judge.

Table of Contents

I. Introduction

II. Facts

III. Jury Verdict

IV. Law

A. Judgment as a Matter of Law Standard

1. Timely Fed.R.Civ.P. 50(b) Motion

2. " Untimely" Fed.R.Civ.P. 50(b) Motion

B. False Arrest Standard

C. Excessive Force Standard

D. New York State Law Assault Standard

E. Failure to Intervene Standard

V. Application of Law to Facts

A. False Arrest

C. Failure to Intervene

VI. Conclusion

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I. Introduction

Rejecting the verdict of a dedicated, intelligent, and assiduous cross section of the community--as this jury was--can only be justified on the strongest grounds. Here, the evidence stands stalwartly against a verdict in plaintiff's favor with respect to all his claims for false arrest, excessive force, and assault.

Plaintiff had an appealing background. He laid claim to a series of advanced degrees, among them in law and theology. He claimed to have lectured widely on theological and moral problems throughout the world. He testified to having earned the esteem of a coterie of wealthy individuals dedicated to philanthropy who, for decades, supported his efforts to disperse funds to persons he deemed " needy." That such a man was publicly humiliated by an arrest that occurred in his mother's home, leading to a public view of himself surrounded by more than a dozen police officers, might have offended the jury.

The police testified that plaintiff was cooperative and docile when they arrested him--an attitude inconsistent with the aggressive nature of plaintiff while testifying that he was outraged by the arrest. This incongruity was likely to have led the jury to conclude that the police officers on the stand had not been candid.

An attempt could be made to support the verdict on the ground that the police officers who testified could not be believed--that the evidence they gave in their favor was a tissue of lies against a person they all wanted to punish. But, as Learned Hand warned long ago, " although it is. . . true that in strict theory a party having the affirmative might succeed in convincing a jury of the truth of his allegations in spite of the fact that all the witnesses denied them, we think it plain that a verdict would nevertheless have to be directed against him." Dyer v. MacDougall, 201 F.2d 265, 269 (2d Cir. 1952). Despite its logic, disbelief of a positive assertion does not sufficiently prove the opposite. While the court recognizes a general jury antipathy toward police officers in many civil and criminal cases in recent years, defendants' possible mendacity alone does not sufficiently prove liability. The law does not countenance unsupported verdicts explicable only in the sympathy of the jury for the plaintiff.

In this case, the contemporary artifacts of evidence of crimes by plaintiff were so compelling as to have made a failure to arrest for probable cause almost a dereliction of duty. Plaintiff admitted physical resistance made appropriate the de minimis force used to move him from the place of his arrest to a police vehicle. Although the facts and the testimony of eyewitnesses support the finding that plaintiff was repeatedly struck by an unnamed police officer, the defendants he claims failed to intervene could not have interceded to stop the assault.

Charges against plaintiff were eventually dropped. Plaintiff sued. Four claims were tried. Three were pursuant to Section 1983 of Title 42: false arrest, excessive force, and failure to intervene; and one was a New York State law assault claim. Plaintiff alleged that (1) all five defendant police officers, DonnaMarie Mazza, Todd Nagrowski, Christopher Karolkowski, Joseph Failla, and Dennis Chan, falsely arrested him; (2) Karolkowski and Failla assaulted him and used excessive force against him; and (3) Failla and Chan failed to intervene when he was assaulted by an unnamed police officer.

After a five and one half day trial, defendants made a timely motion for a judgment

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as a matter of law (" JMOL" ) with respect to the false arrest, excessive force, and assault claims. Trial Tr. 681:16-685:21, Sept. 12, 2014. As to false arrest, the court reserved decision; as to excessive force and assault, the court denied the motion. Trial Tr. 682:8-12; 685:6-13. Defendants timely renewed their JMOL motions during jury deliberations and after verdict. Trial Tr. 837:5-10; 848:18-23, Sept. 17, 2014; Trial Tr. 871:20-24, Sept. 18, 2014. They first made a JMOL motion with respect to the failure to intervene claim during, and then after, jury deliberations. Trial Tr. 836:23-841:17, Sept. 17, 2014; Trial Tr. 872:6-874:21, Sept. 18, 2014.

Following three and one half days of deliberating, the jury returned a verdict in plaintiff's favor for false arrest, excessive force, and assault. They were unable to reach a verdict regarding failure to intervene. In total, the jury awarded plaintiff $574,000.

Despite misgivings articulated by the court at various points on the record with respect to the sufficiency of evidence regarding plaintiff's claims, following the dictate of the Court of Appeals for the Second Circuit, " in the interest of judicial efficiency," the court " refrain[ed] from granting a directed verdict" under Rule 50 and " allow[ed] the matter to be decided, at least in the first instance, by the jury." Williams v. Cnty. of Westchester, 171 F.3d 98, 102 (2d Cir. 1999) (citing cases). This is one of those rare cases in which--drawing all inferences of fact against defendants--the evidence overwhelmingly dictates dismissal. For the reasons stated below, judgment notwithstanding the verdict is granted.

II. Facts

On June 29, 2010, an employee at a Duane Reade store in Brooklyn presented police of the 72nd precinct with a series of photographs of a distressed boy, approximately two years of age, in various stages of undress in what appeared to be the public restroom of a McDonald's restaurant. Trial Tr. 77:13-86:15, Sept. 8, 2014; Trial Tr. 186:20-24; 217:22-218:4, Sept. 9, 2014. Some of the photographs contained detailed shots of the child's genitals and anus. Trial Tr. 78:17-19; 82:15-22; 83:1-7; 83:11-17; 83:21-84:3, Sept. 8, 2014. A date- and time-stamped money order and a copy of the June 25, 2010 Daily News appeared in the background of each photograph. Trial Tr. 77:13-86:16. The Duane Reade employee informed the police that, on June 29, 2010, he had received a phone call from a woman asking him to delete a photo order for these pictures. Trial Tr. 185:2-6; 186:6-10, Sept. 9, 2014. Various specialized units of the police force were mobilized to search for the boy, who appeared in these photographs. Trial Tr. 219:16-220:9; 234:9-235:1. Police spoke with the child's grandmother who reported that plaintiff had inflicted bruises on her daughter in order to exorcise demons from her. Trial Tr. 227:4-24.

On June 30, 2010, the cell phone number--through which the calls to the Duane Reade to cancel printing the photographs had been made (eleven in all)--was traced by police to a cell phone owned by plaintiff. Trial Tr. 445:24-446:17, Sept. 11, 2014; Trial Tr. 619:5-620:15; 629:19-22, Sept. 12, 2014. Police, including the five named defendants, who were assigned to the case with many other police officers, had not yet located the child or his mother despite extensive efforts to do so. On the evening of June 30, the Technical Assistance Response Unit of the New York City Police Department (" TARU" ) located the phone (and plaintiff) at 290 East 4th Street, apartment 2B, Manhattan, New York, the

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residence of plaintiff's mother. Trial Tr. 425:15-426:6; ...

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