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Brim v. City of New York

United States District Court, E.D. New York

June 6, 2017

KAREN BRIM, Plaintiff,

          MARSHALL SCOTT BLUTH, Attorney for Plaintiff

          COHEN & FITCH, Attorney for Plaintiff

          ZACHARY CARTER Jenny Weng Joshua J. Lax Attorneys for Defendant



         The facts and circumstances surrounding this action have been endlessly recounted in briefs upon briefs and orders upon orders. Familiarity with each side's version, and the case's procedural-posture, is assumed. At trial, witness testimony was inconsistent, to say the least, but there is no disputing that Plaintiff suffered a fracture of her lateral tibial plateau during the encounter with Officer Reilly.

         The jury reviewed the evidence and decided what to believe. They believed that Ms. Brim suffered a constitutional deprivation at the hands of Officer Reilly in the form of excessive force when the encounter landed her in the hospital with a broken leg. They also/ believed that Officer Reilly intended to inflict emotional distress on her during that altercation. They awarded her $30, 000 on each of those claims.

         The City filed a motion pursuant to' Federal Rule of Civil Procedure ("Rule") 50, seeking judgment as a matter of law in its favor on both claims. Plaintiff filed a Rule 59 motion seeking a new trial on the issue of damages. Plaintiff argued that the award of $30, 000 for her injuries related to the jury's finding of excessive force was grossly inadequate. These motions were referred to Magistrate Judge Ramon E. Reyes for a Report and Recommendation ("Report").

         The Report was issued on August 16, 2016 and recommended granting Plaintiffs motion for a new trial on damages, an entering judgment as a matter of law in favor of the City on Plaintiffs claim of intentional infliction of emotional distress. Only the City filed objections to the Report. < A district court judge may designate a magistrate judge to hear and determine certain motions pending before the Court and to submit to the Court proposed finding of fact and a recommendation as, to the disposition of the motion. See 28 U.S.C. § 636(b)(1). Within 10 days of service of the recommendation, any party may file written objections to the magistrate's report. See id- Upon de novo review of those portions of the record to which; objections were made, the district court judge may affirm or reject the recommendations. See id- The Court is not required to review, under a de novo or any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the report and recommendation to which no objections are addressed. See Thomas v. Arn, 474 U.S. 140, 150 (1985). In addition, failure to file timely objections may waive the right to appeal this Court's Order. See 28 U.S.C, § 636(b)(1); Small v. Sec'y of Health and Human Servs:; 892 F.2d 15, 1 6 (2d Cir. 1989).


         The Report and Recommendation by Judge Reyes took issue, if you will, with two of those findings.

         First, the Report found that there was no evidence that Ms. Brim suffered the "severe" emotional distress necessary for a jury verdict in her favor, but that she only endured "conventional pain and suffering." Neither side objects to this finding, and so it is hereby adopted. The $301, 000 award for intentional infliction of emotional distressed is set aside and this Court holds as a matter of law for the City on that Count.

         Second, although Ms. Brim suffered a fractured leg, was handcuffed to a hospital bed for 17 days, endured pain and suffering and subsequently required the use of crutches and leg braces, the City argues that the $30, 000 award is not insufficient compensation. The City somehow got into the collective minds of the jury and said;

More importantly, plaintiffs credibility in general was under attack. She was cross examined at length regarding her Medicaid fraud, inconsistency between her Medicaid documents, her testimony and her tax returns, Further, it, is possible that the jury in assessing what damages plaintiff was entitled to, may have considered that her general attitude against authority and dishonesty in civil society made her less worthy of compensation than someone else. The jury may have believed, based on the Court's instructions, that because plaintiff was lawfully arrested in this case, and continued to commit felonious acts through to trial through her Medicaid fraud, ...

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