United States District Court, E.D. New York
MEMORANDUM AND ORDER
Y. SHIELDS, United States Magistrate Judge.
Tara Przybyla (“Plaintiff”) commenced this action
against defendants County of Suffolk (the
“County”), and Suffolk County Police Officers
Brian McMurray, Robert Mudzinski and Peter Ervolina
(collectively the “Individual Defendants (collectively
“Defendants”). Her complaint alleged violations
of her constitutional rights pursuant to 42 U.S.C. §
1983 (“Section 1983”) and New York State
case proceeded to trial before the undersigned against the
named Defendants on February 27, 2017. The sole claim that
proceeded to the jury was the excessive force claim against
Defendant Police Officer Mudzinski. See Docket Entry
herein (“DE”) 76 (Memorandum and Order explaining
the Court's decision as to the claim to be charged to the
jury). On March 6, 2016, the jury returned a defense verdict.
Plaintiff was granted 30 days in which to submit any
post-trial motion. That deadline was later extended, and
Plaintiff filed her post-trial motion on April 20, 2017. DE
84. That motion was opposed on June 9, 2017, DE 88, and is
now ripe for decision.
moves for a new trial pursuant to Rule 59 of the Federal
Rules of Civil Procedure. In support of the motion Plaintiff
argues that Defense counsel “participated in attorney
misconduct” during her closing argument by
“making inappropriate remarks, misstatements of law and
speculation unsupported by the record.” DE 84 at 2. For
the reasons set forth below, this Court disagrees, and denies
the motion for a new trial in its entirety.
Legal Principles: Standard for Rule 59 Motion for a New
59(a)(1) of the Federal Rules of Civil Procedure codifies a
trial court's ability to grant a new trial after a jury
trial “for any reason for which a new trial has
heretofore been granted in an action at law in federal court
. . . .” Fed.R.Civ.P. 59(a)(1) (“Rule 59”).
Among the grounds for granting a new trial is attorney
misconduct in the form of making inappropriate comments
during summation. Where such comments are held to have
improperly influenced a jury, a new trial may be granted.
See e.g., Pappas v. Middle Earth Condominium
Ass'n., 963 F.2d 534, 539 (2d Cir. 1992). While
counsel certainly has latitude in remarking upon the
evidence, that latitude does not include comments that offend
the “fundamental sense of fairness which guides our
system of justice, and by the rules governing the ethical
conduct of attorneys.” Id. at 540.
considering whether counsel's conduct warrants the grant
of a Rule 59 motion, the Court must evaluate challenged
statements in the context of the entire trial, and the
evidence presented therein. Moreover, it is the trial Court
that is in the best position to evaluate whether a jury
verdict has been so tainted as to warrant a new trial. Not
all allegations of misconduct warrant a new trial.
“Some conduct is de minimis in the context of
the entire trial, and some is promptly dealt with by the
trial court's rulings and curative instructions. Yet,
when the conduct of counsel in argument causes prejudice to
the opposing party and unfairly influences a jury's
verdict, a new trial should be granted.” Id.
at 540 (citations omitted).
these standards in mind and the Court's recollection of
the entire trial clear, the Court now turns to the merits of
Plaintiff s motion.
noted, Plaintiffs Rule 59 motion is based upon statements
made by defense counsel during summation. In particular,
Plaintiff argues that the jury was tainted by counsel's
characterization of Plaintiff as a “drama queen,
” a term that is deemed inappropriate because it is
gender-specific, and which tended to portray Plaintiff as a
“silly woman who overreacts to everything”.
Plaintiff further argues that defense counsel exceeded the
bounds of appropriate closing remarks when she:
• indicated that police officers shouldn't be
discouraged from making arrests for fear of being named as
defendants in future civil lawsuits,
• implied that Plaintiff s lawsuit was motivated by a
desire to retaliate against law enforcement,
• indicated that an award to Plaintiff would cheapen the
cause of those who have genuinely been injured by police
• stated that it was the Plaintiff s burden to prove
that the named police officer ...