United States District Court, E.D. New York
MEMORANDUM AND ORDER
F. Bianco, District Judge 
an unfavorable verdict resulting from a jury trial on pro
se plaintiff Anthony Conte's claim for tortious
interference with contract, defendants William Wallace,
Robert Emmons, and Michael Falzarano filed a Rule 50(b)
motion seeking judgment as a matter of law
(“JMOL”). In addition to challenging
plaintiff's claim under the statute of limitations,
defendants raised five substantive arguments regarding the
sufficiency of the evidence at trial and governmental
Memorandum and Order dated July 26, 2013 (the “July
2013 Order”) (ECF No. 624), this Court granted the
motion on the statute of limitations ground without
addressing the remaining five arguments and denied both
parties' Rule 59 motions for a new trial as moot.
Plaintiff appealed. The Second Circuit reversed and remanded
on the tortious interference claim with instructions
“to resolve that claim in further proceedings
consistent Case 2:06-cv-04746-JFB-GRB Document 716 with this
order.” Conte v. Cnty. of Naussau, 596 F.
App'x 1, 3 (2d Cir. 2014) [hereinafter “Conte
remand, the parties disputed the scope of Conte I.
Plaintiff argued that the only issue on remand was his Rule
59 motion for a new trial on damages, while defendants argued
that this Court was required to address all the arguments
they made in their Rule 50 motion. By Order dated April 2,
2015 (the “April 2015 Order”) (ECF No. 650), this
Court interpreted Conte I as only requiring it to
address plaintiff's Rule 59 motion based on language in
Conte I suggesting that the Second Circuit had
determined that the defendants waived their remaining Rule 50
defendants appealed the April 2015 Order, and the Second
Circuit again vacated and remanded, holding that “it
was this Court's intention that the district court
consider, in the first instance, all arguments related to
that claim other than the statute of limitations
claim.” Conte v. Emmons, 647 F. App'x 13,
14 (2d Cir. 2016) [hereinafter “Conte
considering the remaining five grounds defendants raise in
their Rule 50 motion, the Court concludes that defendants are
not entitled to JMOL and, therefore, denies their Rule 50(b)
motion. Specifically, the Court concludes that (1) defendants
waived their immunity and sufficiency of the evidence
arguments by failing to raise them before the verdict, and
(2) no manifest injustice will result from this Court
declining to address these arguments on the merits.
with the facts is assumed. As such, this section will only
summarize the procedural history relevant to defendants'
Filed 03/03/17 Page 2 of 24 PageID #: 17870 Rule 50 motion.
Substantive evidence elicited during the trial relevant to
specific issues will be summarized in the discussion section.
pro se, Conte filed this action against the County
of Nassau, Emmons, Wallace, Falzarano, Philip Wasilausky,
Christina Sardo, Tefta Shaska, and Larry Guerra, alleging
federal claims under 42 U.S.C. § 1983 for false arrest,
malicious prosecution, abuse of process, violation of the
First Amendment, conspiracy, and Monell liability
against the County. Plaintiff also asserted various state law
claims, including claims for false arrest, abuse of process,
and tortious interference with contractual relations.
discovery, plaintiff and all defendants filed motions for
summary judgment with the Court. In their motion, defendants
extensively argued that they were entitled to absolute
immunity and qualified immunity on plaintiff's federal
claims for false arrest and abuse of process. (Defs.' Br.
Supp. Mot. Sum. J., ECF No. 409 (“Defs.' Sum. J.
Br.”), at 14-22.) In a single sentence at the end of
their brief, defendants also raised governmental immunity as
a defense to the state law claims against Emmons, Wallace,
and Falzarano, including the tortious interference with
contract claim. (See Id. at 25-26).
detailed review of the record and submissions of the parties,
the Court issued a Memorandum and Order dated September 30,
2010 (the “Summary Judgment Order”) (ECF No.
462), granting in part and denying in part defendants'
motion for summary judgment and denying plaintiff's
motion for summary judgment in its entirety. In that Order,
the Court disposed of the defendants' state law
governmental immunity arguments with respect to Emmons,
Wallace, and Falzarano, concluding that, under New York law,
prosecutors are not entitled to governmental immunity
“when performing an investigation outside the auspices
of the grand jury, ” and there were factual issues over
whether the “defendants employed regularly issued legal
process with a collateral purpose.” (Summary Judgment
Order at 40.) This rendered summary judgment on the state law
claims on the grounds of governmental immunity improper.
(Id.) Between summary judgment and the jury's
verdict, defendants did not explicitly raise governmental
immunity in connection with the tortious interference with
contract claim. (See, e.g., County Defs.'
Proposed Portion of Pre-Trial Order, ECF No. 572
(“Defs.' Pre-Trial Order”), at 5; County
Defs.' Proposed Jury Verdict Sheet (“Defs.'
Verdict Sheet”), ECF No. 556, at 4-5.)
to the Summary Judgment Order, the following claims survived
summary judgment: (1) plaintiff's false arrest claim
against Wasilausky; (2) plaintiff's abuse of process
claim against all of the County defendants except Sardo; (3)
plaintiff's Monell claim against the County; and
(4) plaintiff's tortious interference with contract claim
against all of the defendants except Sardo and Shaska. The
matter was then tried before a jury.
conclusion of plaintiff's case in chief, defendants
orally moved pursuant to Rule 50(a) for JMOL. (Tr. 902-08).
With respect to plaintiff's tortious interference with
contract claim, defense counsel only raised a statute of
limitations argument. (See Id. at 902-05.) He then
spent considerable time discussing plaintiff's claims for
false arrest and abuse of process, neither of which is at
issue here. (See Id. at 905-08.) At the conclusion
of his argument on an abuse of process issue, counsel
remarked that he “did not fully brief that particular
issue.” (Id. at 908.)
at that point that the following exchange occurred:
The Court: That is preserved for purposes of renewing it at
the end of the case. Do you believe there is insufficient
evidence as a whole as well?
Mr. Scott: Absolutely.
The Court: In your summary judgment motion, you moved both on
absolute immunity [and] qualified immunity. And I assume that
that is continuing as well?
Mr. Scott: Yes. Thank you, Judge.
(Id.) Counsel did not elaborate on either of these
arguments, and the Court reserved decision on the Rule 50
motion. (Id. at 908, 912.)
end of the trial, the jury found that (1) Wasilausky
subjected plaintiff to an unlawful arrest; (2) none of the
defendants maliciously abused process in connection with
plaintiff's arrest on a bad check charge or in connection
with the issuance of Grand Jury subpoenas; and (3) Emmons,
Wallace, and Falzarano tortiously interfered with
plaintiff's contractual relationships. With respect to
damages, the jury awarded $500.00 in compensatory damages and
$26, 000.00 in punitive damages against Wasilausky in
connection with plaintiff's false arrest claim. As to
plaintiff's tortious interference with contract claim,
the jury awarded plaintiff $3, 500.00 in compensatory damages
for tor-tious acts that took place before June 1, 2005, and
$700, 000.00 in compensatory damages for tortious acts that
took place on or after June 1, 2005. The jury also awarded
punitive damages in connection with plaintiff's tor-tious
interference with contract claim: $60, 000.00 against Emmons;
$443, 000.00 against Wallace; and $175, 000.00 against
the trial, defendants Wasilausky, Wallace, Emmons, and
Falzarano moved for JMOL pursuant to Federal Rule of
Civil Procedure 50(b) on various grounds. As relevant here,
defendants argued that (1) plaintiff's tortious
interference claim was barred by the statute of limitations;
(2) plaintiff failed to adduce evidence of contracts he could
enforce; (3) plaintiff failed to establish defendants
breached any contract; (4) plaintiff failed to establish he
had suffered any economic harm; (5) plaintiff's
agreements with route distributors were terminable at will,
and thus could not give rise to an action; and (6)
plaintiff's claim was barred by governmental
im-munity. (See Defs.' Br. Supp. of Mot.
J. as Matter Law, ECF No. 601-20 (“Defs.'
Br.”), at 10-31). Plaintiff, meanwhile, moved under
Rule 59 for a new trial on damages, arguing that the Court
improperly denied him the opportunity to present to the jury
certain evidence of damages associated with the tortious
interference with contract claim.
July 2013 Order, this Court granted defendants' Rule
50(b) motion-finding that Emmons, Falzarano, and Wallace were
entitled to JMOL on plaintiff's tortious interference
with contract claim because plaintiff failed to prove that
any injury occurred within the limitations period. (July 2013
Order at 34). Because the Court vacated the jury's
verdict with respect to the tortious interference with
contract claim, the Court denied both parties' Rule 59
motions for new trials as moot.
appeal, plaintiff argued, as relevant here, that this Court
erred by granting the Rule 50(b) motion on his tortious
interference with contract claim against Wallace, Emmons, and
Falzarano and denying his Rule 59 motion for a new damages
trial. Defendants contested these arguments,
contending that this Court's statute of limitations
reasoning was correct and, in the alternative, that the
Second Circuit could affirm the judgment on the basis of the
other five issues raised in their Rule 50(b) motion.
December 17, 2014, the Second Circuit vacated this
Court's ruling granting JMOL (on the statute of
limitations ground) in favor of Wallace, Emmons, and
Falzarano in connection with Conte's claim for tortious
interference with contractual relations, and remanded.
Conte I, 596 F. App'x at 5-7. The Court held
that, because the factual issues relating to the statute of
limitations defense were not submitted to the jury, the
defendants were not entitled to have that issue decided by
the district court. Id. at 6. With respect to the
alternative grounds raised on appeal by defendants for JMOL
on the tortious interference claim, the Second Circuit
“decline[d] to address” defendants' immunity
or insufficiency of the evidence arguments “for the
first time on appeal” after noting that
“defendants did not specifically articulate these
grounds for reversal in their Rule 50(a) motion.”
Id. “To be entitled to judgment as a matter of
law on a factual issue, ” the Court continued,
“the movant must, at the close of the plaintiff's
case, identify the specific element that the defendant
contends is insufficiently supported.” Id.
(quoting Galdieri- Ambrosini v. Nat'l Realty &
Dev. Corp., 136 F.3d 276, 286 (2d Cir. 1998)). With
respect to the new trial motions under Rule 59, the Court
determined that plaintiff was entitled to have the district
court decide his new trial motion on remand. Id. at
6-7. With respect to the defendants' new trial motion,
the Court held that “because the defendants do not
raise any reason for a new trial on appeal, we see no reason
to deprive [Conte] of the benefit of the jury's
verdict.” Id. at 7 (citation omitted). In
closing, the Second Circuit directed this Court “to
resolve that claim [i.e., plaintiff's tortious
interference with contract claim] in further proceedings
consistent with this order.” Id.
remand, the parties disputed the scope of Conte I.
Plaintiff argued that the only issue for the Court to decide
was his motion for a new trial on damages, while defendants
contended that the mandate required the Court to revisit
their Rule 50 motion in its en-tirety-beyond the limitations
issue that precipitated the remand.
April 2015 Order, this Court interpreted Conte I as
only requiring it to address plaintiff's Rule 59 motion
for a new trial. It read the language in Conte I
regarding defendants' failure to “specifically
articulate these [alternative] grounds for reversal in their
Rule 50(a) motion, ” 596 F. App'x at 6, as a
holding that defendants waived their im- munity and
sufficiency of the evidence arguments “in the District
Court” (April 2015 Order at 4; see also Id. at
5 (“[T]he Second Circuit made it abundantly clear that
it had reviewed the record and found those exact arguments to
be waived. In other words, they could not be considered on
appeal because they had been waived in the District
Court.”)). Correspondingly, this Court held that
“the scope of the remand [from Conte I was]
clearly limited to consideration of plaintiff's motion
for a new trial on damages” and, therefore, declined to
address defendants' remaining substantive arguments.
(Id. at 6.)
appeal, the Second Circuit vacated the April 2015 Order and
remanded. Conte II, 647 F. App'x at 14. It
clarified that, in Conte I, “it was this
Court's intention that the district court consider, in
the first instance, all arguments related to [the tortious
interference with contract] claim other than the statute of
limitations claim.” Id. Consequently, it
“re-mand[ed] again to give the district court the
opportunity to do so.” Id.
such, the Court now considers defendants' Rule 50(b)
motion, including the five separate arguments raised as
grounds for relief that this Court previously declined to
address in its April 2015 Order. For the reasons set forth
below, defendants' Rule 50(b) motion is denied in its
Standard of Review
standard governing motions for JMOL pursuant to Rule 50 is
well-settled. A court may not properly grant JMOL under Rule
50 against a party “unless the evidence, viewed in the
light most favorable to the non-moving party, is insufficient
to permit a reasonable juror to find in his favor.”
Arlio v. Lively, 474 F.3d 46, 51 (2d Cir. 2007)
(citing Galdieri-Ambrosini, 136 F.3d at 289).
Generally, a court reviewing such a motion must defer to all
credibility determinations and reasonable inferences that the
jury may have drawn at trial. See Frank Sloup & Crabs
Un-ltd., LLC v. Loeffler, 745 F.Supp.2d 115, 120
(E.D.N.Y. 2010). That is, a court considering a Rule 50
motion “may not itself weigh the credibility of
witnesses or consider the weight of the evidence.”
Meloff v. N.Y. Life Ins. Co., 240 F.3d 138, 145 (2d
Cir. 2001) (quoting Galdieri-Ambrosini, 136 F.3d at
289); see also Playtex Prod., Inc. v. Procter &
Gamble Co., No. 02 CIV.8046 WHP, 2004 WL 1658377, at *2
(S.D.N.Y. July 26, 2004) (“A Rule 50(b) motion cannot
be granted ‘if, drawing all reasonable inferences in
favor of the nonmoving party and making all credibility
assessments in his favor, there is sufficient evidence to
permit a rational juror to find in his favor.'”
(quoting Sir Speedy, Inc. v. L&P Graphics, Inc.,
957 F.2d 1033, 1039 (2d Cir. 1992))).
JMOL is appropriately granted where “(1) there is 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 (2) there is such an
overwhelming amount of evidence in favor of the movant that
reasonable and fair minded [persons] could not arrive at a
verdict against [it].” Advance Pharm., Inc. v.
United States, 391 F.3d 377, 390 (2d Cir. 2004)
(alterations in original) (quoting
Galdieri-Ambrosini, 136 F.3d at 289); see also
Kinneary v. City of N.Y., 601 F.3d 151, 155 (2d Cir.
2010) (same); This is Me, Inc. v. Taylor, 157 F.3d
139, 142 (2d Cir. 1998) (stating that a court assessing a
Rule 50 motion must consider 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 as to the verdict that reasonable
[people] 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))). In
other words, this Court may only grant defendants' Rule
50(b) motion “if it cannot find sufficient evidence
supporting the jury's verdict.” Playtex
Products, 2004 WL 1658377, at *2; see also Black v.
Finantra Capital, Inc., 418 F.3d 203, 209 (2d Cir. 2005)
(“A court evaluating  a motion [for JMOL] cannot
assess the weight of conflicting evidence, pass on the
credibility of the witnesses, or substitute its judgment for
that of the jury.”). For this reason, a party moving to
set aside a jury verdict must clear “a high bar.”
Lavin-McEleney v. Marist College, 239 F.3d 476, 479
(2d Cir. 2001).
argue that (1) they raised their governmental immunity and
sufficiency of the evidence arguments in their Rule 50(a)
motion and (2) even if they had not done so, JMOL is
necessary to avoid a manifest injustice. For the reasons set
forth below, ...