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Wright v. Musanti

United States District Court, S.D. New York

January 20, 2017

SCOTT WRIGHT, Plaintiff,

          OPINION & ORDER

          KATHERINE B. FORREST United States District Judge

         This dispute arises from a physical altercation that took place between two individuals, previously unknown to one another, walking to work one morning near Penn Station. Jacqueline Musanti, the defendant in this action, believed Scott Wright, the plaintiff, intentionally cut in front of her on the sidewalk. She kicked him and things went downhill from there. Plaintiff ended up under arrest and in a holding cell. Shortly after the incident, he commenced this action for assault, battery and false arrest. On October 6, 2016, the Court held a one-day bench trial at which plaintiff and defendant testified, defendant appearing pro se.[1] At the conclusion of the trial, the parties presented brief closing arguments. This Opinion & Order constitutes the Court's findings of fact and conclusions of law. See Fed.R.Civ.P. 52. As set forth below, this Court finds that plaintiff is entitled to judgment on each of his claims. The Court imposes an award of compensatory and punitive damages.


         On November 12, 2014, plaintiff Scott Wright, a slight African American man, brought this action against New York Police Department Officer Michael Manetta and Jacqueline Musanti, a medium-sized Caucasian woman, asserting one claim under 42 U.S.C. § 1983 (“Section 1983”) against Officer Manetta and three claims under New York tort law against Musanti. (ECF No. 2.) Plaintiff's allegations flow from an altercation with Musanti and plaintiff's ensuing arrest by Officer Manetta.

         On February 5, 2016, the Court dismissed plaintiff's Section 1983 claim, see Wright v. NYPD Officer Manetta et al., No. 14-cv-8976 (KBF), at *5 (S.D.N.Y. Feb. 5, 2016), leaving Musanti as the only defendant (hereinafter “defendant”). Despite having dismissed the sole federal claim, the Court retained jurisdiction on the basis of diversity. (ECF No. 26; see also ECF No. 31 (denying reconsideration).)

         As to defendant, plaintiff claimed: (1) assault and battery (ECF No. 2 ¶¶ 52-58);[2] (2) false arrest (id. ¶¶ 59-66); and (3) malicious prosecution (id. ¶¶ 67-74). Defendant answered on March 13, 2015, asserting, inter alia, defenses of self-defense (to plaintiff's assault and battery claims) (ECF No. 9 ¶ 79) and probable cause (to plaintiff's false arrest claim) (id. ¶ 83).[3] Defendant did not counterclaim against plaintiff. (Id.) On September 14, 2016, the Court granted summary judgment dismissing plaintiff's malicious prosecution claim. (ECF No. 71.)

         Throughout the litigation, defendant appeared pro se. At various times, and based on specific application to this Court, defendant engaged the assistance of a per diem attorney to assist with filings and depositions. (See, e.g., ECF Nos. 39, 77.) As the case neared trial and it became clear that defendant did not lack resources, the Court encouraged defendant to retain the per diem attorney or other counsel to represent her at trial. (ECF No. 77.) Defendant chose not to do so and appeared at trial pro se.

         On October 6, 2016, this Court held a one-day bench trial on the remaining claims and defenses. As stated above, this Opinion & Order constitutes the Court's findings of fact and conclusions of law. See Fed.R.Civ.P. 52.

         II. FINDINGS OF FACT[4]

         The evidence in this case reflects a “he said, she said” dispute with a twist. The twist is a twenty-six second, silent surveillance videotape obtained from a building on 39th Street. (PX 1.)[5] This videotape captures the initial portion of the parties' encounter, thereby injecting a degree of objective truth into what is otherwise a credibility contest between plaintiff and defendant. Making a judgment about whose story to believe did not present a close call: plaintiff was in all respects credible and the Court credits plaintiff's version of events. Plaintiff's testimony was consistent and his demeanor was measured and calm. By contrast, defendant lacked credibility. This determination is based on the objective evidence on the videotape and her demeanor and lack of consistency. First, the surveillance videotape directly refutes defendant's depiction of plaintiff as the initial aggressor, instead demonstrating that defendant initiated the altercation. This discrepancy casts immediate doubt on defendant's testimony that plaintiff continued acting as the aggressor off-camera. Second, plaintiff's counsel used defendant's deposition testimony to repeatedly impeach her on cross-examination. Third, in contrast to plaintiff's demeanor, defendant appeared excitable, impulsive and defensive as she told her story.

         A. The Physical Altercation

         Plaintiff is a slightly built African American male who resides in Queens, New York. (See Tr. 10:5-9, 24:5-11, 46:23-24.)[6] At the time of the incident, he was employed as an account manager at Webgains, an online marketing company. (Id. 11:2-15.) He is currently employed as a human resource analyst at Marsh & McLennan. (Id. 10:15-20.) Defendant is a Caucasian female who previously worked at an apparel company located in New York City but now lives in Nashville, Tennessee. (See id. 80:10-19.) Defendant currently works on a freelance basis in the fashion industry. (Id.)

         On November 21, 2013-the date of the subject incident-plaintiff and defendant worked in neighboring office buildings on 39th Street between 7th and 8th Avenues. (See id. 11:2-10, 80:10-13.) Prior to November 21, 2013, plaintiff and defendant had never met. (Id. 12:13-14, 52:22-53:3.) They first encountered one another that morning during rush hour-at around 9:00 a.m.-while walking to work on 39th Street. (Id. 11:2-10, 11:19-21, 12:19-13:4, 52:22-53:3, 68:19-23.) The sidewalk was crowded.

         The surveillance videotape depicts the parties walking in the same direction in the middle of the sidewalk amidst numerous pedestrians. (PX 1 at 1”.) Defendant was initially walking a few paces diagonally behind plaintiff's right side. (Id.) Defendant then crossed in front of plaintiff and continued walking diagonally in front of his left side. (Id. at 1-2”.) After a few more steps, plaintiff passed in front of defendant on her right side and continued walking directly in front of her, leaving a very short distance-no more than a few feet-between them. (Id. at 2-11”; see also Tr. 87:2-11.)

         Defendant's central assertion is that “plaintiff started it” by bumping into her, cutting across her path and cutting her off. (See Tr. 70:2-17 (stating that plaintiff “bumped” her as she was walking, and “words were exchanged.”); see also id. 86:11-23.) The videotape is unclear as to whether plaintiff contacted defendant as he passed her. (See PX 1 at 7-8”.) However, based on plaintiff's overall demeanor and presentation at trial, the Court credits his testimony that he did not contact or say anything to plaintiff when he passed her. (See Tr. 14:7-9, 14:13-14; see also id. 55:14-17, 55:23-56:1.) Further, while plaintiff cut very closely in front of defendant and evidently obstructed her path, the Court likewise credits plaintiff's testimony that he did not cut her off intentionally. (See id. 14:10-12 (“Q: When you walked past Ms. Musanti on the sidewalk, did you try to trip her, get in her way, interfere with her in any way? A: No. Honestly, I'm simply just walking to work; so. . . .”).)

         Immediately after plaintiff passed defendant, defendant stepped on plaintiff's heel and stumbled. (PX 1 at 11-12”; Tr. 12:19-13:4, 87:19-25, 88:18-89:4.) After regaining her balance, defendant intentionally kicked plaintiff's calves as he continued walking down the sidewalk.[7] (PX 1 at 12-13”; Tr. 12:19-13:4, 13:17-19, 91:19-22; see also id. 115:17-19.) The parties then walked beyond the videotape's visible frame. (PX 1 at 12-13”.)

         The remainder of the alleged altercation is not captured on videotape. The most we see is the reaction of a bystander, who, at the end of the videotape, momentarily stopped walking to view something ahead. (Id. at 15-18”.) In the absence of further footage-and given that the sole testimony was from the parties themselves-there is some uncertainty regarding what occurred next. Nevertheless, the parties' accounts overlap to a degree, permitting the Court to make the following findings.

         First, shortly after defendant intentionally kicked plaintiff, plaintiff turned around and verbally confronted her, prompting a heated exchange. (Tr. 12:19-13:16, 14:15-22, 72:8-15, 97:16-25.) Plaintiff asked-in an emphatic tone of voice- “Did you really just kick me?” (Id. 12:19-13:16; see also id. 72:8-25 (recalling statement as, “[W]hat did you just do and why did you just do that?”).) Defendant responded to the effect of, “I f-ing kicked you, and I'll do it again, you know.” (Id. 14:15-22; see also id. 12:19-13:4.) During this verbal exchange, defendant raised a bent leg in front of her person and “kicked out at [plaintiff] to push him away from [her] face”. (Id. 96:1-6; see also id. 72:8-73:7, 95:14-17, 96:9-12.) Plaintiff did not respond to this remark or physical gesture.[8] (Id. 17:6-14; 59:19-24.) Instead, he turned around and walked towards the front door of his office building, which at that point was five-six feet away. (Id. 14:15-16:3.) As plaintiff walked away, defendant continued making statements to the effect of, “I'm going to f-ing kick you again” and positioned herself in front of plaintiff to block his entry into his office building (id. 15:15-16:3).

         Plaintiff then tried to move defendant out of the way. (Id. 15:15-16:18, 57:15-17.) In response, defendant turned around and went “ballistic”-hitting, kicking and scratching plaintiff and trapping him against his building's façade. (Id. 24:12-25:16, 57:18-21; see also id. 73:8-75:5 (admitting that defendant “turned around, and [] started yelling at [plaintiff]” and “put [her] leg up in defense mode”); id. 99:14-22 (admitting that defendant had her hands up and used her feet to “push[] him away from [her]”).) Plaintiff then grabbed defendant's coat collar and pulled her to the ground in an attempt to “neutralize” her. (Id. 24:12-25:16; see also id. 27:14-24, 57:22-58:1, 73:8-75:13.) A security guard from plaintiff's office (who plaintiff knew personally) approached plaintiff from behind and immobilized him in a “bear hug”. (Id. 24:12-25:16, 58:23-59:1.) Plaintiff placed his hands up and stated, “I do not want to fight”, to which the guard responded, “I know.”[9] (Id. 25:21-26:3; see also id. 29:5-15.) The guard released defendant soon thereafter. (Id. 29:5-15.)

         By this time, a crowd had assembled. (Id. 29:5-30:3, 75:6-23, 77:8-20.) When the security guard released plaintiff, defendant again attempted to physically block him from entering his office building. (Id. 29:5-30:3, 101:20-103:9; see also Id. 119:24-120:5.) Following a brief altercation near the doorway, plaintiff entered his office building and took the elevator up to his floor. (Id. 101:9-103:9; see also Id. 29:5-30:3, 59:13-18, 73:8-75:5.) From that point onward, plaintiff had no further direct interactions with defendant. (Id. 30:4-6.)

         B. The Arrest

         Although neither plaintiff nor defendant called the police to report the incident (id. 59:25-60:4, 77:21-22, 106:11-13), the police arrived on the scene shortly after plaintiff went into his office building (id. 77:13-20 (recalling that police arrived “a couple of seconds” later)). Soon thereafter, defendant, some witnesses and a few of her work colleagues gathered in the lobby of plaintiff's building (id. 78:8-23), and the police questioned those present about the altercation (id. 77:21-78:23, 106:11-18; see also 107:15-19). Defendant did not ask the other witnesses to speak with the police on her behalf (id. 113:16-21) and did not overhear any of their conversations (id. 108:2-4). In addition, plaintiff did not witness defendant or other individuals speaking with the police. (Id. 60:5-10.)

         Defendant told the police the same account to which she testified in Court. (Id. 77:21-78:3, 113:24-114:2; see also id. 114:16-115:2.) Specifically, defendant told the police, inter alia, that plaintiff purposefully cut her off on the street in order to trip her (id. 115:3-10), and that she kicked plaintiff in his calf (id. 115:17-20, 117:16-19) because she felt personally under attack (id. 116:6-9). Defendant did not tell the police that she was responsible for the altercation (id. 117:1-3) or that the altercation stemmed from a misunderstanding with plaintiff that spiraled out of control (id. 117:4-8).

         Meanwhile, about a minute after plaintiff reached his office, around seven to nine police officers came up to his floor. (id. 30:23-31:2; see also id. 60:11-13.) The officers approached plaintiff at his desk, informed him that he was under arrest and immediately placed him in handcuffs. (Id. 31:3-22.) One of plaintiff's colleagues witnessed the arrest. (Id. 31:23-32:7.) Although plaintiff repeatedly requested to press charges against defendant, the police told him he could not do so. (Id. 31:3-22, 33:6-23.) All told, the police were in plaintiff's office for about ten to fifteen minutes. (Id. 32:16-18.) The officers then rode the elevator down with plaintiff (id. 33:24-34:6) and escorted him through the lobby, then crowded with individuals (id. 34:7-15).

         The police ushered plaintiff into a patrol car parked outside, where he remained for roughly 45 minutes. (Id. 34:16-35:3.) During this time, a number of people walked by, some of whom took photographs of him in the back of the vehicle. (Id.) In addition, while plaintiff was in the patrol car, the police officers asked defendant “what [she] wanted to do”-that is, whether she wanted to press charges. (Id. 118:8-119:2, 119:5-10.) She informed them that she did. (Id. 119:3-4; see also id. 119:24-120:25.)

         The police then drove plaintiff to a nearby precinct, where he spent about forty minutes in a small cell.[10] (Id. 35:13-37:4.) After about an hour at the precinct, plaintiff was issued a desk appearance ticket to appear in New York City Criminal Court on January 6, 2014 and was released. (Id. 37:5-15, 38:18-39:2; PX 2.) Plaintiff then returned to work. (Tr. 62:2-4.) He did not seek medical treatment (id. 62:5-10), as his only physical injuries were a few minor scratches on his face (id. 30:7-12, 62:11-13; see also id. 57:7-8.) In total, approximately two hours passed from plaintiff's initial handcuffing to his release from the precinct. (Id. 41:23-42:3.)

         Plaintiff was arraigned on January 6, 2014 (id. 38:18-39:6), at which point he learned he had been charged with two counts of assault in the third degree, one count of attempt and one count of harassment in the second degree. (Id. 38:25-39:11; PX 4.) Plaintiff appeared in criminal court four or five times throughout 2014 to address these charges. (Tr. 44:1-4; see also id. 39:12-15.) They were ultimately dismissed on October 2, 2014. (Id. 42:7-8, 43:19-25, 44:5-8; PX 4.)

         Plaintiff's only out-of-pocket expenses stemming from the altercation were his legal and investigative fees in the criminal matter.[11] (Id. 39:16-41:6.) In this regard, plaintiff paid a flat fee of $5, 000 to engage a criminal defense attorney (id. 39:16-40:4) and an additional $300 to $400 for a private investigator recommended by his defense attorney (id. 40:20-41:1).

         Plaintiff testified consistently and credibly that he felt embarrassed and humiliated by the altercation and ensuing arrest. (Id. 34:7-15, 34:19-35:3, 45:15-46:4, 45:15-46:4.) For instance, when asked how these events affected him personally, plaintiff testified:

[U]ltimately, I felt embarrassed. I felt humiliated. I'm the one who is being attacked on the street. I'm the one who was being arrested in front of my coworkers. I'm the one who is being dragged through the lobby by seven to nine police officers, you know, in front of like my colleagues, in front of my clients and everything. So that's humiliating. I don't want that. It's embarrassing. Me sitting in the patrol car, ...

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