United States District Court, S.D. New York
OPINION & ORDER
KATHERINE B. FORREST United States District Judge
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. 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.
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.
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
defendant, plaintiff claimed: (1) assault and battery (ECF
No. 2 ¶¶ 52-58); (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). 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.)
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.
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.
FINDINGS OF FACT
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.) 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.
The Physical Altercation
is a slightly built African American male who resides in
Queens, New York. (See Tr. 10:5-9, 24:5-11,
46:23-24.) 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.)
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.
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.)
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. . . .”).)
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. (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”.)
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.
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. (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).
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.” (Id.
25:21-26:3; see also id. 29:5-15.) The guard
released defendant soon thereafter. (Id. 29:5-15.)
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.
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.
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).
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
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.)
police then drove plaintiff to a nearby precinct, where he
spent about forty minutes in a small cell. (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.
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.)
only out-of-pocket expenses stemming from the altercation
were his legal and investigative fees in the criminal
matter. (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.
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, ...