ANTHONY MANGANIELLO, Plaintiff, - against - DET. LUIS AGOSTINI, Individually and as a New York City Police Detective, Defendant.

07 Civ. 3644 (HB)

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

2009 U.S. Dist. LEXIS 3861


January 21, 2009, Decided
January 21, 2009, Filed

OPINION & ORDER

Hon. HAROLD BAER, JR., District Judge:

The reader's familiarity with the underlying facts of this case is assumed. 1 On June 24, 2008, a jury found Agostini and another defendant, Shawn Abate ("Abate"), to be liable for malicious prosecution. Question 3 on the verdict sheet asked the jury: "State the total amount of compensatory damages you award to the Plaintiff." The jury responded by stating that the total compensatory damages were $ 1,426,261.00. Question 4 on the verdict sheet [*3] then asked the jury to "state the amount of compensatory damages for which each Defendant whom [the jury found to be liable] is liable." The jury responded that Abate was liable for $ 142,626.10, which amounts to ten percent of the total compensatory damages, and that Agostini was liable for $ 1,283,634.90, which amounts to ninety percent of the total compensatory damages. These two amounts add up to the total compensatory damages found by the jury.

FOOTNOTES

1 See this Court's opinion on Defendants' motion for summary judgment. Manganiello v. City of New York, No. 07 Civ. 3644, 2008 U.S. Dist. LEXIS 44765, 2008 WL 2358922 (S.D.N.Y. June 10, 2008).


On August 6, 2008, this Court granted qualified immunity to Abate, and thus Abate is not liable for any portion of the damages award. The Court asked the parties to argue as to whether Agostini should be held joint and severally liable and be required to pay the total amount of compensatory damages found by the jury, or only the portion that the jury allotted to him.

I. DISCUSSION

A. Jury Verdict Form

The first issue to be addressed is whether the verdict form in this case was submitted to the jury in plain error. The verdict form may have been ambiguous as to whether the Court viewed [*4] the defendants as jointly and severally liable, since the form asked jury to apportion damages among them. Although the Second Circuit has advised that this type of question should be "avoided in cases where the defendants, if found liable, are jointly and severally liable," the form here is not plain error. See Aldrich v. Thomson McKinnon Securities, Inc., 756 F.2d 243, 248 (2d Cir. 1985) (discerning the intent of the jury as to whether compensatory damages were to be awarded jointly and severally, despite incongruous verdict form); Rodick v. City of Schenectady, 1 F.3d 1341, 1348 (2d Cir. 1993) (internal citation omitted) (finding reversible error on the ground that errors as to the theory of respondeat superior in the verdict form created too much confusion for the jury but not solely on the ground that the form was ambiguous as to joint and several liability).

However, to the extent that the Circuit recommends that, where defendants are jointly and severally liable, the jury should be asked only the total amount of compensatory damages, see Aldrich v. Thomson McKinnon Securities, Inc., 756 F.2d 243, 248 (2d Cir. 1985), this Court should have omitted the question that asked the jury [*5] to apportion damages. However, it should be noted that at trial no party raised the issue or objected to questions 3 or 4 on the verdict sheet. Indeed the parties, as I recall, approved both questions.

The verdict form did not constitute plain error and reversal or a new trial on this issue is not appropriate.

B. Joint and Several Liability

Because Abate has been granted qualified immunity, a finding that Defendants are jointly and severally liable would mean that Agostini is accountable for the entire amount of compensatory damages. Conversely, a finding that each Defendant is liable for only his individual assessment would mean that Agostini is responsible for only ninety percent of the total amount of compensatory damages and Manganiello would not recover the full amount of damages that the jury found he suffered.

Malicious prosecution is an intentional tort. Rodick, 1 F.3d at 1348. Intentional tortfeasors are held jointly and severally liable for assessed compensatory damages, provided they have caused a single injury to the plaintiff. Id. If the tortfeasors are jointly and severally liable, one tortfeasor is not relieved from liability simply because the other tortfeasor also committed [*6] liability-causing actions, nor are the damages against either tortfeasor diminished to his or her proportion of fault. Edmonds v. Campganie Generale Transatlantique, 443 U.S. 256, 271, 99 S. Ct. 2753, 61 L. Ed. 2d 521 (1979); see also Weeks v. L.R. Chaboudy, 984 F.2d 185, 189 (6th Cir. 1993) (internal quotation marks and citation marks omitted). This principal of liability is not altered even when one tortfeasor is immune from liability. Weeks, 984 F.2d at 189; Restatement (Second) of Torts § 880.

However, joint and several liability will only apply where there is a single, indivisible injury. Watts v. Laurent, 774 F.2d 168, 179 (7th Cir. 1985) (citing Restatement (Second) of Torts, § 875). Thus, where the injury is divisible and separate causation is attributable to each tortfeasor, joint and several liability will not apply. Weeks, 984 F.2d at 189.

Plaintiff argues Agostini is responsible for the entire award of compensatory damages because the harm caused by the Defendants is an indivisible injury. Specifically, Plaintiff avers that the damages are indivisible because the jury awarded a single compensatory award and then distributed the award with regard to a proportion of fault for each defendant. Indeed, it is clear [*7] that the jury found Agostini to be ninety percent at fault and Abate to be ten percent at fault and apportioned damages based on these proportions.

Similarly, in Aldrich the jury awarded the plaintiff one aggregate amount and then allocated the amount between the two defendants according to an easily discernable proportion of fault--in that case, 50-50. See 756 F.2d at 245. The Court held that the amounts showed that the jury intended to award the plaintiff the total amount of compensatory damages against the two defendants jointly and severally, and that the only reason the jury entered separate amounts for each defendant was that the verdict form asked it to do so. Id. at 248. Likewise, here it appears that the intent of the jurors was to award the Plaintiff an aggregate amount of $ 1,426,261, while attributing liability to Abate at ten percent and to Agostini at ninety percent because the Court asked it to enter separate amounts for each liable defendant.

Defendant contends that joint and several liability does not apply in this case because Manganiello's injuries are divisible. Defendant relies on the summation of Manganiello's counsel, who requested that the jury compensate Manganiello [*8] for the ten days that he spent in jail after his arrest at the amount of $ 15,000 per day, or $ 150,000, in addition to his other damages. Defendant then points out that the jury's award against Abate, $ 142,626.10, is close to $ 150,000. Because Abate was involved in placing Manganiello under arrest, Defendant argues that the jury intended its award against Abate to compensate Manganiello for the divisible injury resulting from his ten-day confinement. A better explanation for the award against Abate, however, is that it is ten percent of the total compensatory damages of $ 1,426,261.00. An average juror could easily calculate this percentage. Further, if the jury had intended to hold Abate responsible for Manganiello's confinement, there is no explanation for why the jury would reduce the amount suggested by Manganiello's counsel, i.e., $ 150,000, by exactly $ 7,223.90 to arrive at the $ 14,262.10 figure.

Finally, a divisible injury requires separate causation on the part of each defendant. Weeks, 984 F.2d at 189. Here, the evidence at trial established malicious prosecution based on the actions of both of Defendants acting in concert. Defendants did not produce evidence that either [*9] of their actions caused a separate harm to the Plaintiff. Although the Plaintiff may have asked for compensation based on both misrepresentations made to the Assistant District Attorney and time spent in police custody, there was evidence that both Defendants contributed to both incidents, and these incidents together contributed to Manganiello's injury. The jury's verdict thus suggests that actions by both Defendants were proximate causes of the injury caused to Manganiello, and thus Abate and Agostini, as joint intentional tortfeasors, were jointly and severally liable.

Finally, the Defendant argues that joint and several liability cannot attach in this instance because Abate has been granted qualified immunity. This argument is without merit. Although Abate was granted qualified immunity on the basis that the evidence at trial did not suggest he knew by a preponderance of the evidence that he was making material misrepresentations, granting immunity for one tortfcasor does not affect the principal of liability towards the other tortfeasor. See Weeks, 984 F.2d at 189; Restatement (Second) of Torts § 880.

Therefore. this Court finds that Defendant Agostini is jointly and severally liable [*10] for malicious prosecution and is liable for the full compensatory damages awarded by the jury, in the amount of $ 1,426,261.00.

IT IS SO ORDERED.

New York, New York

January 21, 2009

/s/ Harold Baer

U.S.D.J.

ANTHONY MANGANIELLO, Plaintiff, -against- THE CITY OF NEW YORK, DET. LUIS AGOSTINI, Individually and as a New York City Police Detective, SHAWN ABATE, individually and as a New York City Police Detective, DEREK PARKER, individually and as a New York City Police Detective, LT. HENRY SCOTT, individually and as a New York City Police Lieutenant, P.O. ALEX PEREZ, individually and as a New York City Police Officer, P.O. MIRIAN NIEVES, individually and as a New York City Police Officer, MICHAEL PHIPPS, individually and as a Commanding Officer of the 43rd Precinct, JOHN McGOVERN, individually and as a New York City Police Detective Sergeant, ROBERT MARTINEZ, individually and as a New York City Police Detective, GERYL McCARTHY, individually and as a New York City Police Deputy Inspector, Defendants.

07 Civ. 3644 (HB)

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

2008 U.S. Dist. LEXIS 44765


June 10, 2008, Decided
June 10, 2008, Filed

OPINION & ORDER

HAROLD BAER, JR., District Judge:

On April 17, 2008, defendants City of New York, retired Detective Luis Agostini, retired detective Shawn Abate, retired Detective Derek Parker, retired Lieutenant Harry Scott (sued herein as "Lt. Henry Scott"), retired Police Officer Alex Perez, retired Police Officer Miriam Nieves, Inspector Michael Phipps, Lieutenant John McGovern, retired Detective Richard Martinez (sued herein as "Robert Martinez") and retired Deputy Inspector Geryl McCarthy (collectively, "Defendants"), moved this Court for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons set forth below, summary judgment is GRANTED in favor of defendants City of New York, Parker, Scott, Phipps, McGovern and McCarthy, and summary judgment is DENIED with respect to defendants Agostini, Abate, Perez, Nieves and Martinez.

I. FACTUAL BACKGROUND

The following facts, inter alia, are not disputed. On the morning of February 12, 2001, Albert Acosta, a security guard for the Parkchester South Condominium Security Department ("Parkchester Security"), was found lying face down, dead, with a [*3] gunshot wound to his head in the basement of 1700 Metropolitan Avenue in the Parkchester South Condominium Complex. Plaintiff Anthony Manganiello ("Plaintiff"), also a Parkchester Security guard, was working in the vicinity of 1700 Metropolitan Avenue that day. Pl.'s & Defs.' Statements of Facts Pursuant to Local Rule 56.1 ("Statements") PP 1-3. At approximately 10:14 a.m. Parkchester Security received a telephone call from a person stating that there was a "man down" in the basement of 1700 Metropolitan Avenue. Frommer Decl. Ex. D. A minute later, the Parkchester Security central dispatcher transmitted this information over the Parkchester radio system. After hearing the broadcast, Plaintiff went to 1700 Metropolitan Avenue. Pl.'s & Defs.' Statements PP 9, 12. At some point, a call to 911 was made, and the NYPD central radio dispatcher broadcast over the NYPD radio system that there was a "10-13," or uniformed person in distress, at 1700 Metropolitan Avenue. Id. PP 14-15.

Defendants Police Officers Nieves and Perez, who were partners, responded to the scene. Id. P 17. Several other members of the NYPD arrived at the scene, and detectives from the 43rd Precinct Detective Squad commenced [*4] an investigation. Later that day, Defendant Agostini was assigned as the case detective. Id. P 19. The Bronx County District Attorney's ("DA's") Office was provided with information about the police investigation, including that Acosta had been shot and killed with a .22 caliber gun, id. P 33, and that Plaintiff's hands had tested negative for gunshot residue, id. P 27. The DA's Office was also made aware that Terrance Alston, a pretrial detainee housed in a correctional facility on Rikers Island, claimed to know someone who sold Plaintiff a .22 caliber gun. Id. PP 34-35.

The police investigation concluded on or about April 20, 2001, and that day Defendant Agostini signed a felony complaint for Plaintiff's arrest, an arrest warrant was obtained, and the DA's Office directed the 43rd Precinct Detective Squad to arrest Plaintiff. Defs.' Statement P 20; Frommer Decl. Ex. V. Defendant Abate took Plaintiff into custody on April 20, 2001. Pl.'s & Defs.' Statements P 21.

Defendants Agostini, Perez, Nieves and Abate testified before the Grand Jury. Joseph Decl. Ex. 28. Three civilian witnesses also testified before the Grand Jury. Walter Cobb testified that the Plaintiff was present at the scene [*5] of the crime immediately after the fatal shots were fired. Id. P 68. Christopher Tartone testified that Plaintiff was heard asking individuals if anyone was selling a gun. Id. P 69. Alston testified that he heard Plaintiff say he intended to kill another security guard. Id. P 70. The Grand Jury indicted Plaintiff on May 7, 2001, and charged him with two counts of Murder in the Second Degree and other related charges. Frommer Decl. Ex. X.

The criminal trial of People v. Manganiello commenced before Judge Martin Marcus and a jury in Bronx County Supreme Court on June 28, 2004. Plaintiff was acquitted.

II. PROCEDURAL HISTORY

On May 8, 2007, Plaintiff filed a complaint against Defendants alleging malicious prosecution in violation of 42 U.S.C. § 1983. Defendants' motion for summary judgment was fully briefed on May 22, 2008, and this Court heard oral argument on May 28, 2008. Trial is scheduled to commence on June 16, 2008. Plaintiff's motion, filed April 10, 2008, for various orders pursuant to Fed. R. Civ. P. 37, remains open, and during oral argument the Court requested Defendants' counsel to submit a response.

III. STANDARD OF REVIEW

A court will not grant a motion for summary judgment [*6] pursuant to Fed. R. Civ. P. 56 unless it determines that there is no genuine issue of material fact and the undisputed facts are sufficient to warrant judgment as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); Anderson v. Liberty Lobby Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). In determining whether there is a genuine issue of material fact, the court must resolve all ambiguities, and draw all inferences, against the moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 8 L. Ed. 2d 176 (1962) (per curiam). "There is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson, 477 U.S. at 249. The Second Circuit has held that a "moving party may obtain summary judgment by showing that little or no evidence may be found in support of the nonmoving party's case." Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1223 (2d Cir. 1994). The nonmoving party may not overcome summary judgment by relying "merely on allegations or denials in its own pleading." Fed. R. Civ. P. 56(e). Rather, the nonmoving party's "response must-by affidavits or as otherwise provided in [Fed. R. Civ. P. 56]-set [*7] out specific facts showing a genuine issue for trial." Id.

IV. DISCUSSION

A. Individual Defendants

1. Summary Judgment Granted to Defendants Parker, Scott, Phipps, McGovern and McCarthy

Under well-settled law in this Circuit, to succeed on a claim for malicious prosecution, a plaintiff must show that (1) a prosecution was initiated against him or her, (2) that it was brought with malice (3) and without probable cause to believe that it could succeed, and (4) that the prosecution terminated in favor of the accused plaintiff. Boyd v. City of New York, 336 F.3d 72, 76 (2d Cir. 2003). The fourth prong is not disputed, as Plaintiff was acquitted.

a. Parker

Plaintiff bases his claim against Defendant Parker on Parker's alleged involvement with Alston, the witness who was a pretrial detainee at Riker's Island and who claimed to know someone who had sold a gun to Plaintiff. Parker, unlike other Defendants in this matter, did not work in the 43rd Precinct. Parker Dep. Tr. 9-11, Ex. 6 to Joseph Decl. Rather, he specialized in crimes involving the rap and hip-hop industries. Id. Alston was a confidential informant to Parker, and Parker was one of Alston's "handlers." Id. at 68; Scaccia Dep. Tr. 34-35, [*8] Ex. 25 to Joseph Decl. When Alston told him that he had information about a murder in the Bronx, Parker called the 43rd Precinct to refer them to Alston. Parker Dep. Tr. 39-40. Parker testified that he was not involved in the initial conversations between Agostini and Alston. Id. at 69. Indeed, there is no evidence that Parker had any conversations with Alston about the information that Alston claimed to know about the murder, or that Parker knew the content of the conversations between Alston and Agostini. The evidence submitted by Plaintiff shows only that Alston told Agostini that Johnny Baker had sold Plaintiff a gun, that Agostini then interviewed Johnny Baker, who denied the story, that Alston was angry at Agostini for having spoken with Johnny Baker without him present, and that Agostini continued to work with Alston after the incident. See Complaint Follow-up by Agostini regarding conversation with Alston, Ex. 16 to Joseph Decl.; Agostini Dep. Tr. 178-79, Ex. 3 to Joseph Decl.

The evidence demonstrates that Parker was later invited to a meeting between Alston, Agostini, Assistant District Attorney Christine Scaccia and Mark Damon, a 17-year-old who Alston had subsequently said [*9] sold a gun to Plaintiff. Parker Dep. Tr. 76-77. Parker testified that he had no recollection of Mark Damon being present at the meeting and he never met with him outside of that meeting. Id. at 82. He testified that he believed the reason he was invited was because he was Alston's "handler" and Alston may have felt comfortable with him. Id. at 81.

Mark Damon later recanted his statement that he had sold Plaintiff a gun. By this time, Alston was no longer incarcerated. Plaintiff claims that Alston provided false testimony in exchange for his release from jail and that this is evidence of malicious prosecution by Agostini and Parker because they should have known, based on Alston's first lie with regard to Johnny Baker, that Alston's second statement, with regard to Mark Damon, was also false. However, there is no evidence that Parker had any knowledge of the first lie about Johnny Baker, or that he had any involvement at all with Alston in connection with Acosta's homicide investigation other than to refer Alston to the 43rd Precinct and to sit in on the meeting between Damon, Alston and the Assistant District Attorney. There is no evidence that Parker brokered any deal with Alston [*10] to get him out of jail early. Assistant District Attorney Scaccia testified that she told Parker that she would enter into a cooperation agreement with Alston and that once he was out of jail Parker was to be his handler, but that Parker never spoke with her on Alston's behalf to expedite his release. Scaccia Dep. Tr. 34-35, 59, Ex. 25 to Joseph Decl.

Finally, Plaintiff makes much to-do about a book authored by Parker in which Parker says that as a specialist in crimes in the hip-hop and rap industries, he often found unorthodox methods to be effective. In his deposition, he testified that this could mean "finessing" the witness. See Pl.'s Br. 4-5, 28. It would be a stretch of the imagination, without more, to extrapolate from these statements any significance or relationship to the criminal prosecution of Plaintiff. Even generally speaking, the statements do not reveal unethical or questionable conduct by Parker, but rather at most a somewhat maverick personality.

Plaintiff has not shown sufficient evidence that Parker initiated or continued the prosecution, or harbored any malice toward the prosecution of Plaintiff, or, even if he did participate in the prosecution of Plaintiff, that [*11] he had no probable cause to believe the proceeding would succeed, and therefore summary judgment is granted to Parker.

b. Scott, Phipps, McGovern and McCarthy

Upon a review of all of the parties' submissions and evidence, it is evident that Plaintiff does not allege facts sufficient to support a malicious prosecution claim against Defendants Scott, Phipps, McGovern and McCarthy, either. Pl.'s Br. 6. While Plaintiff claims that McGovern, Scott and McCarthy "actively" encouraged the actions of other Defendants, including Agostini, Plaintiff has produced no evidence to show any such encouragement. Plaintiff asserts that McGovern and Scott reviewed Agostini's Complaint Follow-up reports, which allegedly attributed conflicting statements to officers who were with Plaintiff at 1700 Metropolitan Avenue, that they failed to "intervene" and that they either ignored or authorized the continued use of Alston, when they knew he had lied. Id. 7. However, none of the evidence submitted suggests that McGovern or Scott knew Alston had lied or that the Complaint Follow-up reports that they reviewed contained material conflicting statements.

Neither McGovern nor Scott testified before the Grand Jury. Moreover, [*12] merely having a supervisory position in the precinct is not sufficient to find that the supervisor initiated the prosecution. See Rohman v. New York City Transit Auth., 215 F.3d 208, 217 (2d Cir. 2000) (requiring a showing that defendant played an "active role in the prosecution, such as giving advice and encouragement or importuning the authorities to act"). Finally, with respect to Defendant Scott, Plaintiff alleges that at the time of his arrest in February 2001, Scott said he believes Plaintiff was guilty because he was "lawyered up." Pl.'s Opp. 7, 20. This fact, even if true, hardly creates a genuine issue of material fact as to the malicious prosecution claim against Scott in the absence of any real involvement by Scott in the investigation or prosecution of Plaintiff.

Similarly, although Plaintiff claims that Defendant McCarthy failed to intervene in the actions by other Defendants, including Agostini, there is no evidence in the record that McCarthy had any knowledge of any alleged wrongdoing by any other Defendants, even though he was the highest ranking officer associated with the investigation. He did not testify before the Grand Jury, nor did he or McGovern ever speak with [*13] anyone at the DA's Office regarding the prosecution of Plaintiff. Finally, with respect to Defendant Phipps, Plaintiff alleges no specific facts at all.

Therefore, Plaintiff has not shown a genuine issue of material fact as to his malicious prosecution claim against Defendants Scott, Phipps, McGovern and McCarthy and the undisputed facts are sufficient to warrant judgment as a matter of law.

2. Summary Judgment Denied to Defendants Agostini, Abate, Perez, Nieves and Martinez

a. Assistant District Attorney Was Not Superseding Cause

Defendants argue that the Assistant District Attorney's independent actions broke any causal connection between Defendants and the allegedly malicious prosecution and cite Townes v. City of New York, 176 F.3d 138, 147 (2d Cir. 1999), in which the Second Circuit addressed a § 1983 claim founded on an allegation of unreasonable search and seizure in violation of Fourth Amendment rights. That case, however, is not analogous to the case at bar. First, the causes of action are different. Second, the Court in Townes found that the trial court's failure to suppress certain evidence constituted a superseding cause of the plaintiff's conviction and imprisonment and thus [*14] the police officers were not liable for malicious prosecution. Here, Defendants argue that the prosecutor was a superseding cause.

A case in the Eastern District, however, is apposite. See Mejia v. City of New York, 119 F. Supp. 2d 232 (E.D.N.Y. 2000). In that case, the court observed that witnesses may be considered complaining witnesses if they falsely gave the prosecutor information that induced the prosecutor to act. 1 Id. at 272. It was significant to the Mejia court that "[p]laintiffs' claim is not that [the defendants] simply went to prosecutors and related the facts as they honestly believed them to be and then let the prosecutor make his or her determination whether to commence proceedings." Id. (emphasis added). Instead, the plaintiff alleged that the defendants misrepresented to prosecutors the true circumstances leading to the arrest and, "thus, induced the prosecutor to commence proceedings based on manufactured evidence [and] further induced the prosecutor to continue the proceedings by giving testimony before the grand jury that was false and/or contained material omissions." Id. In Ricciuti v. New York City Transit Auth., 124 F.3d 123, 130 (2d Cir. 1997), the Second [*15] Circuit held that "initiation" of prosecution may include preparing false evidence, forwarding it to prosecutors, suborning perjury and committing perjury. That is precisely what Plaintiff alleges here with regard to Defendants Agostini, Abate, Perez, Nieves and Martinez. Therefore, the Assistant District Attorney's actions do not constitute an intervening cause that shields these Defendants from liability.

FOOTNOTES

1 Although the Mejia court made this observation in the context of qualified immunity, not "initiation" of prosecution, qualified immunity and "initiation" of prosecution are conceptually intertwined. Id. ("Whether a witness is a complaining witness [for purposes of qualified immunity] is a fact-based question that coincides with the determination of whether the witness played such a role initiating the proceedings that it can be said the witness commenced or continued proceedings against the plaintiff within the meaning of the law of malicious prosecution.").


b. Presumption Created by Grand Jury Indictment Is Rebutted

Defendants further argue that the Grand Jury indictment created a presumption of probable cause that cannot be rebutted. While the Grand Jury indictment did create [*16] a presumption of probable cause, this presumption may be rebutted by evidence demonstrating that the defendants engaged in fraud, perjury, the suppression of evidence or other police conduct undertaken in bad faith. See, e.g., Savino v. City of New York, 331 F.3d 63, 72 (2d Cir. 2003). The Savino court held that the district court erred when it permitted the plaintiff to rebut the presumption of probable cause with mere "conjecture" and "surmise" that his indictment was procured as a result of conduct undertaken by the defendants in bad faith. Id. at 73. The Mejia court, on the other hand, found that the presumption of probable cause created by the grand jury indictment was rebutted where the plaintiff produced evidence of fraud, suppression of evidence and police misconduct. 119 F. Supp. 2d at 256. The court held that the plaintiff had rebutted the presumption to the extent that the indictment was based on alleged misrepresentations that the defendants-the City of New York, a U.S. Customs Service special agent, two police officers and a private corporation that acted under color of law and had state actor status--made about telephone calls between the plaintiff and the corporate defendant. [*17] Similarly, here, Plaintiff has produced evidence that the indictment depended upon the alleged misrepresentations made by at least some of the Defendants. Id.

Here, Plaintiff has produced sufficient evidence to rebut the presumption created by a grand jury indictment. For example, Agostini's Complaint Follow-up report dated February 27, 2001, which states that Sal Miro told him that Plaintiff said he owned a .22 caliber gun and carried it on him sometimes, was directly contradicted by Sal Miro's declaration, dated February 29, 2008, that he never told any detective that he spoke with Plaintiff or that Plaintiff said he owned a .22 caliber gun. Assistant District Attorney Scaccia admitted that the initial statement as provided by Agostini played a role in her decision to initiate the prosecution against Plaintiff. Scaccia Dep. Tr. 91, Ex. 25 to Joseph Decl. Moreover, Agostini testified that if Booth had not told him anything about Plaintiff during their interview, Agostini would have made "inquiries" about the gambling slips that he found in Booth's pocket. Agostini did not "think" he made any inquiries, once Booth told Agostini what he wanted, i.e., that Plaintiff had asked him if he [*18] had a "rod" (gun). Agostini Dep. Tr. 225-26, Ex. 3 to Joseph Decl. Martinez and Abate also met with Booth. Finally, as set forth above, Agostini continued working with Alston as an informant after it was clear that Alston had lied about Johnny Baker, and albeit Agostini admitted during a recent deposition that this had raised concerns for him about Alston's believability. Id. at 181. Agostini admitted that his conversation with Alston undermined Alston's credibility in his view but that he knew "he was playing games, because he was in jail and maybe he wanted to be out of jail before he gave me like the correct person who did it." Id. at 182.

Agostini signed the felony complaint, dated April 20, 2001, in the Bronx Criminal Court, which reads in part: "Deponent [Agostini] states, based upon official investigation, [Plaintiff's] statements, and witnesses known to the Police Department, that, at the above time and place, the Defendant did cause the death of Albert Acosta by shooting him with a loaded firearm." The complaint is signed only by Agostini. Frommer Decl. Ex. V. Agostini testified that he filled out "numerous paperwork" to obtain a warrant for Plaintiff's arrest, that to obtain [*19] the arrest warrant he "presented evidence," including witnesses Cobb, Alston, Booth and Cartone, to a judge, and that he "went to the DA's office, and we obtained an arrest from the judge." Agostini Dep. Tr. 203-05 (emphasis added). Moreover, Agostini testified that he gave his "whole file" to Assistant District Attorney Scaccia. Agostini Dep. Tr. 127-28, Ex. I to Frommer Decl. Scaccia testified that "[t]here was a time that I had access to the entire case folder, and that would have been probably at the grand jury stage. I did not maintain possession of that folder between the grand jury and the trial." Scaccia Dep. Tr. 22-24, Ex. 25 to Joseph Decl. "Having access" to the case file meant that "when a detective comes to see you regarding a case they generally bring their file with them." Id. at 23.

Further, it appears that Agostini may have provided false testimony during a pretrial hearing in the criminal matter in which he testified that a note found in Plaintiff's locker read, "I feel like killing somebody." In fact, the note said, "I pray every day that I will never have to kill someone." Joseph Decl. Ex. 3 at 105-07, Ex. 9. Agostini testified that he did not know if he ever provided [*20] the Assistant District Attorney with a copy of the note. Joseph Decl. Ex. 3 at 104. It also seems that Agostini may not have provided the Assistant District Attorney with everything he knew about the criminal investigation. For example, Assistant District Attorney Scaccia testified that Agostini never provided her with a copy of his handwritten interview notes, and the entire file, which was last in Agostini's possession, went missing before trial. 2 Scaccia Dep. Tr. 25, Ex. 25 to Joseph Decl. The cumulative effect of the evidence set forth above is sufficient to rebut the presumption of probable cause provided by a grand jury indictment.

FOOTNOTES

2 During Plaintiff's criminal trial, Agostini testified that the box that contained materials relating to the homicide investigation went missing in February 2003. Joseph Decl. Ex. 7 at 279. In March of 2004 he "basically searched the whole precinct" for the box but could not find it. Id. at 279-80. Of the materials in the box, he had copied the DD-5s, or complaint follow-ups. Id. at 280.


c. Genuine Issues of Material Fact as to Agostini, Abate, Perez, Nieves and Martinez

Plaintiff has demonstrated genuine issues of material fact as to these Defendants' [*21] liability for malicious prosecution. Agostini signed the felony complaint and provided the file to the Assistant District Attorney. Abate signed a search warrant for Plaintiff's car, according to Agostini-the search warrant itself has disappeared along with much of the file. Joseph Decl. Ex. 3 at 97. Abate, along with Martinez, were involved with the witness, Booth, and some evidence, as set forth above, shows that Booth's testimony may have been coerced. See Joseph Ex. 29 at 72-74, Ex. 8. Defendants Agostini, Abate, Nieves and Perez all testified before the Grand Jury. There is some evidence that Nieves and Perez misrepresented the facts during their testimony before the Grand Jury with respect to whether the Parkchester Security radio transmission identified the victim as a Parkchester Security guard and with respect to statements made by Plaintiff to Nieves. 3 See Joseph Decl. Ex. 28 at TP4-TP7, TP12, 13, Ex. 7 at 150, 210.

FOOTNOTES

3 It should be noted that Perez has not yet appeared for a deposition despite having been timely noticed. During oral argument, this Court instructed Defendants' attorney to make another effort to produce Perez for a deposition and instructed Defendants' attorney [*22] to respond to Plaintiff's Rule 37 motion, which request, inter alia, an order deeming Plaintiff's allegation as to Perez as established.


Drawing all reasonable inferences in Plaintiff's favor, a reasonable juror could find that the evidence reveals malicious prosecution by each of these Defendants. At this stage of the litigation, while more material issues of fact were presented, this is sufficient to deny the motion.

B. Absolute Immunity

Defendants argue that Agostini, Perez and Nieves are entitled to absolute immunity for their testimony before the Grand Jury. The Supreme Court has held that a police officer has absolute immunity from liability under 42 U.S.C. § 1983 based on the substance of his trial testimony. Briscoe v. LaHue, 460 U.S. 325, 103 S. Ct. 1108, 75 L. Ed. 2d 96 (1983). The Second Circuit has held that police officers are entitled to the same protection for testimony that is provided to a grand juror. White v. Frank, 855 F.2d 956 (2d Cir. 1988). However, the Supreme Court has carved out "[a]n exception to this wall of immunity for trial and pretrial testimony [of] a 'complaining witness.'" Malley v. Briggs, 475 U.S. 335, 340, 106 S. Ct. 1092, 89 L. Ed. 2d 271 (1986). In White, the Second Circuit explained that "the common law made a [*23] subtle but crucial distinction between two categories of witnesses with respect to their immunity for false testimony. Those whose role was limited to providing testimony enjoyed immunity; those who played a role in initiating a prosecution-complaining witnesses-did not enjoy immunity." 855 F.2d at 958-59. To qualify as a complaining witness, and thereby be disqualified from absolute immunity, a witness must play a sufficient role in initiating the prosecution. Id. at 962. The Seventh Circuit has noted that "[o]f course, merely providing false testimony to a grand jury is not enough." Cervantes v. Jones, 188 F.3d 805, 810 (7th Cir. 1999) (citing White, 855 F.2d at 961). Rather, a complaining witness is one "who actively instigated or encouraged the prosecution of the plaintiff." Cervantes, 188 F.3d at 810.

Here, the gravamen of Plaintiff's lawsuit is that Defendants were "complaining witnesses," i.e., that they instigated or encouraged a malicious prosecution against him. As explained above, a reasonable juror could find that Defendants Agostini, Perez and Nieves instigated or encouraged Plaintiff's prosecution. Therefore, this Court declines to hold that these Defendants enjoy absolute [*24] immunity for their Grand Jury testimony. 4

FOOTNOTES

4 I need not decide whether the remaining Defendants, in whose favor summary judgment is granted, would be entitled to absolute immunity. See Rolon v. Henneman, 517 F.3d 140, 147 n.2 (2d Cir. 2008) (declining to decide whether defendant was a "complaining witness" or entitled to absolute immunity because Court already concluded that plaintiff had failed to state a legally cognizable claim against defendant).


C. Qualified Immunity

Defendants further argue that all of the individual Defendants are entitled to qualified immunity. Again, I will address the qualified immunity claim only for those Defendants for whom summary judgment is not granted: Agostini, Abate, Martinez, Perez and Nieves. The Supreme Court has recently held that "[i]n resolving questions of qualified immunity, courts are required to resolve a threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" Scott v. Harris, 550 U.S. 372, 127 S. Ct. 1769, 1774, 167 L. Ed. 2d 686 (2007) (quotation marks omitted). This inquiry "usually means adopting . . . the plaintiff's version of the facts." Id. at 1775. [*25] Here, as explained above, taken in the light most favorable to Plaintiff, the facts alleged, if true, would show that Defendants Agostini, Abate, Martinez, Perez and Nieves violated Plaintiff's constitutional rights to be free from malicious prosecution and not to be indicted without probable cause.

The "'next, sequential step is to ask whether the right was clearly established . . . in light of the specific context of the case.'" Id. at 1774 (quotation marks omitted) (quoting Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001). The Supreme Court in Scott never reached this question because it held that the facts alleged did not show a violation of a constitutional right. In Saucier, the Supreme Court explained that "[t]he relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." 533 U.S. at 202. Here, the right to be free from malicious prosecution in the absence of probable cause is a well-established constitutional right and was one at the time of the alleged prosecution. If Plaintiff's allegations, e.g., that Defendants falsified evidence and suborned [*26] perjury, are true, then certainly it would be clear to a reasonable officer that this conduct was unlawful. The concern expressed by the Supreme Court in Saucier, that "reasonable mistakes can be made as to the legal constraints on particular police conduct" and "[i]t is sometimes difficult for an officer to determine how the relevant legal doctrine . . . will apply to the factual situation," do not come into play here. See id. at 205. While an officer is entitled to the immunity defense "[i]f the officer's mistake as to what the law requires is reasonable," if Plaintiff's factual allegations concerning Defendants Agostini, Abate, Martinez, Nieves and Perez are true, there could be no such mistake. See id. That is, no reasonable police officer would mistake the law so as to include and permit fabrication of evidence, suborning of perjury and perjury.

The inquiry, however, necessarily encounters a lacuna at this point, as it is not clear at this stage in the litigation whether Plaintiff's allegations are, in fact, true: they rest on disputed facts. For example, if Defendant Agostini fabricated Complaint Follow-up reports, or Martinez, Abate and Agostini coerced Booth to give a false [*27] statement, or Perez and Nieves misrepresented to the Grand Jury their recollection of the radio transmissions and their interactions with Plaintiff, then this Court could reach a determination as to whether such conduct was clearly unlawful to a reasonable officer. Whether Defendants actually did these acts, and the nature of their conduct, are factual questions that must be answered by the jury. In Saucier, on the other hand, the conduct alleged, a "gratuitously violent shove" amounting to excessive force, did not require a factual finding by the Supreme Court, which held that the circumstances, based on facts that appear to have been undisputed, disclosed substantial grounds for the officer to have concluded he had legitimate justification to "shove" the plaintiff. Id. at 208. Here, the facts are bitterly contested.

Therefore, despite the Supreme Court's instruction that "[w]here the defendant seeks qualified immunity, a ruling on that issue should be made early in the proceedings so that the costs and expenses of trial are avoided, id. at 200, I must follow the lead of the court in a more recent case, Zellner v. Summerlin, 399 F. Supp. 2d 154 (E.D.N.Y. 2005). As recounted by the [*28] Second Circuit, which reviewed the district court's post-jury-verdict judgment as a matter of law, the district court refused "[b]ecause of the factual issues" to determine qualified immunity before the jury could make its determination. Zellner v. Summerlin, 494 F.3d 344, 359 (2d Cir. 2007). The district court told the parties during trial that "the factual dispute has to be resolved before there can be a finding of whether or not there is qualified immunity." Id. at 360. The district court's approach was not criticized in the Court of Appeals' decision. I thus reserve judgment on the qualified immunity defense with regard to Defendants Agostini, Abate, Martinez, Nieves and Perez until the jury determines the facts. 5

FOOTNOTES

5 I need not address whether the other individual defendants are entitled to qualified immunity, as summary judgment is granted in their favor.


D. Municipal Liability

In Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690-91, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978), the Supreme Court held that to hold a municipality liable as a "person" under the meaning of 42 U.S.C. § 1983, as Plaintiff seeks to do here, the plaintiff must show that a policy or custom of the municipality caused the deprivation of his federal [*29] constitutional rights. "A municipality cannot be held liable under § 1983 on a respondeat superior theory." Id. at 691. Here, Plaintiff has not demonstrated any genuine issue of material fact with respect to the existence of a policy or custom of malicious prosecution at the City of New York. Plaintiff alleges that the City of New York

had a custom, policy and practice of improper training, improper supervision, allowing and permitting constitutional violations, tacitly permitting the subordination of perjury, tacitly permitting the fabrication of evidence, tacitly permitting the destruction and withholding of exculpatory evidence and the commencing and continuation of criminal prosecutions without probable cause and of other improper police practices at the 43rd Precinct, which amounted to a deliberate indifference to plaintiff's rights.

Compl. P 195.

However, the "mere assertion that a municipality has such a policy is insufficient to establish Monell liability," Perez v. City of New York, 97 Civ. 2915, 2002 U.S. Dist. LEXIS 4297, *4 (E.D.N.Y. Mar. 14, 2002), and in any case Plaintiff may not overcome summary judgment by relying "merely on allegations or denials in its own pleading," [*30] Fed. R. Civ. P. 56(e). Here, Plaintiff has not shown a set of facts, by affidavit, deposition or otherwise, that could lead a reasonable juror to conclude that Monell liability is appropriate for the City of New York. The standard for liability based on a claim of failure to train is a high hurdle to overcome. A plaintiff must establish through admissible evidence that "the failure to train amounts to deliberate indifference to the rights of those whom municipal employees will come into contact," and "only where a failure . . . reflects a deliberate or conscious choice by a municipality . . . can a city be liable for such failure under § 1983." City of Canton v. Harris, 489 U.S. 378, 388-89, 109 S. Ct. 1197, 103 L. Ed. 2d 412 (1989).

The Second Circuit has held that where an official has final authority over significant matters involving the exercise of discretion, the choices he makes represent government policy. Rookard v. Health & Hosps. Corp., 710 F.2d 41 (2d Cir. 1983). Plaintiff thus argues that Defendants McGovern, Scott and McCarthy were final policy makers for the NYPD because McGovern and Scott "for all practical purposes" had the discretion to make the ultimate decisions concerning homicide investigations in [*31] the 43rd Precinct and because McCarthy was an operational commander and the higheest ranking officer associated with the investigation. Pl.'s Br. 25. Even if these Defendants were policy makers, however, there is no indication that they had any knowledge of the alleged wrongdoing, as set forth above. See Amnesty America v. Town of West Hartford, 361 F.3d 113, 126 (2d Cir. 2004) (requiring plaintiff to show that a final policy-maker knew to a moral certainty that employees would confront a given situation and that the policy-maker had notice of a potentially serious problem of constitutional conduct such that the need for corrective action was obvious ). Plaintiff has failed to make any such showing here. See also Turpin v. Mailet, 619 F.2d 196, 203 (2d Cir. 1980) (finding the standard is "undoubtedly difficult to meet" and was not met where the plaintiff claimed only that senior policy makers failed to take disciplinary action).

V. CONCLUSION

For the reasons stated, Plaintiff has raised material with respect to the liability of Defendants Agostini, Abate, Martinez, Nieves and Perez. Accordingly, Defendants' motion for summary judgment with respect to these Defendants is DENIED. As explained [*32] above, Defendants' motion for summary judgment is hereby GRANTED in favor of Defendants City of New York, Parker, Scott, McCarthy, McGovern and Phipps. The balance of the Rule 37 motion is DENIED. What is sought there constitutes the proof at trial, stipulations and perhaps jury charges--possible fodder for motions in limine but not for the Court to decide at this time.

IT IS SO ORDERED.

New York, New York

June 10, 2008

Harold Baer, JR.,

U.S.D.J.

ANTHONY MANGANIELLO, Plaintiff, - against - DET. LUIS AGOSTINI, Individually and as a New York City Police Detective, Defendant.

07 Civ. 3644 (HB)

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

2008 U.S. Dist. LEXIS 99181


December 9, 2008, Decided
December 9, 2008, Filed

OPINION & ORDER

Hon. HAROLD BAER, JR., District Judge:

The reader's familiarity with the underlying facts of this case is assumed. 1 Plaintiff Anthony Manganiello ("Manganiello") brought an action for malicious prosecution pursuant to 42 U.S.C. § 1983 against Defendant Luis Agostini ("Agostini"), nine other police officers of the New York City Police Department ("NYPD") and the City of New York. After this Court granted summary judgment in favor of the City and five of the police officers, a trial proceeded against Agostini, and four other NYPD officers. On June 24, 2008, a jury found only Agostini and another defendant, Shawn Abate ("Abate"), to be liable for malicious prosecution, and awarded Manganiello compensatory damages in the [*3] amount of $ 1,426,261. The verdict sheet asked the jury to apportion compensatory damages among the defendants, and the jury determined that Agostini was liable for 90 percent of the compensatory damages, or $ 1,283,634.90, and Abate, 10 percent, or $ 142,626.10.

FOOTNOTES

1 See this Court's opinion on Defendants' motion for summary judgment. Manganiello v. City of New York, No. 07 Civ. 3644, 2008 U.S. Dist. LEXIS 44765, 2008 WL 2358922 (S.D.N.Y. June 10, 2008).


On August 6, 2008, this Court granted qualified immunity to Abate based on the Court's view of the law juxtaposed with the jury's answer to a special interrogatory on the verdict sheet. That same day, following oral argument by the parties as to punitive damages, the jury assessed punitive damages against Agostini in the amount of $ 75,000.

Agostini moves for judgment as a matter of law in favor of Agostini pursuant to Fed. R. Civ. P. 50 and 59 and for qualified immunity. In the alternative, Agostini seeks remittitur of the damages award pursuant to Rule 59 or to set aside the verdict and order a new trial pursuant to Rule 59. Manganiello moves for attorneys' fees pursuant to 42 U.S.C. § 1988. For the reasons set forth below, Agostini's motions are denied, and Manganiello's [*4] motion is granted.

I. AGOSTINI'S MOTION FOR JUDGMENT AS A MATTER OF LAW

The Second Circuit has instructed that

[j]udgment as a matter of law may not properly be granted under Rule 50 unless the evidence, viewed in the light most favorable to the opposing party, is insufficient to permit a reasonable juror to find in her favor. . . . In deciding such a motion, the court must give deference to all credibility determinations and reasonable inferences of the jury, . . . and it may not itself weigh the credibility of witnesses or consider the weight of the evidence . . . . Thus, judgment as a matter of law should not be granted unless

'(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 [the defendant].'

Galdieri-Ambrosini v. Nat'l Realty & Dev. Corp., 136 F.3d 276, 289 (2d Cir. 1998) (internal citations omitted) (quoting Cruz v. Local Union No. 3 of the Int'l Brotherhood of Electrical Workers, 34 F.3d 1148, 1154 (2d Cir.1994) (internal [*5] quotation marks and citation omitted)).

The court "cannot assess the weight of conflicting evidence, pass on the credibility of witnesses, or substitute its judgment for that of the jury." Tolbert v. Queens College, 242 F.3d 58, 70 (2d Cir. 2001) (quotation marks and citation omitted). The court must make credibility assessments, and draw all inferences, against the moving party. Piesco v. Koch, 12 F.3d 332, 343 (2d Cir. 1993).

Agostini rests his motion on several different arguments, each of which is discussed in turn below.

A. Presumption of Probable Cause Created by Grand Jury Indictment

To succeed on his claim for malicious prosecution, Manganiello shouldered the burden of proving, by a preponderance of the evidence, that Agostini initiated a prosecution against him, with malice and without probable cause to believe that it could succeed, and that the prosecution terminated in favor of Manganiello. Boyd v. City of New York, 336 F.3d 72, 76 (2d Cir. 2003). That the prosecution terminated in Manganiello's favor is not disputed, as he was acquitted by the jury at his criminal trial.

Agostini asserts that Manganiello failed to prove that Agostini lacked probable cause to believe that the [*6] prosecution could succeed. Specifically, Agostini contends that Manganiello failed to elicit any evidence during trial which rebutted the presumption of probable cause created by his grand jury indictment. The rule in the Second Circuit is that:

'[o]nce a suspect has been indicted . . . the law holds that the Grand Jury action creates a presumption of probable cause.' . . . 'The presumption may be overcome only by evidence establishing that the police witnesses have not made a complete and full statement of facts either to the Grand Jury or to the District Attorney, that they have misrepresented or falsified evidence, that they have withheld evidence or otherwise acted in bad faith.' . . . Thus, in order for a plaintiff to succeed in a malicious prosecution claim after having been indicted, 'he must establish that the indictment was produced by fraud, perjury, the suppression of evidence or other police conduct undertaken in bad faith.'

Rothstein v. Carriere, 373 F.3d 275, 282-83 (2d Cir. 2004) (quoting Colon v. City of New York, 60 N.Y.2d 78, 82-83, 455 N.E.2d 1248, 468 N.Y.S.2d 453 (N.Y. 1983)) (emphasis added).

Here, the jury was properly instructed that the grand jury indictment created a presumption of probable cause [*7] and that Manganiello bore the burden to overcome the presumption, under the rule set forth in Rothstein. Manganiello provided enough evidence at trial that a reasonable juror could conclude that Agostini and Abate failed to make a "complete and full statement of facts" to the District Attorney, "misrepresented or falsified evidence," "withheld evidence or otherwise acted in bad faith." See id. For example, Manganiello testified that when Agostini questioned him at the precinct immediately after Albert Acosta ("Acosta") was shot, Manganiello told him about an earlier incident where some Blood gang members threw Acosta through a window and another where local thugs threatened to shoot Acosta. (Transcript of Trial ("Tr."), Ex. A to Okereke Decl., at 68.) A reasonable juror could conclude, since there was no evidence to dispute these allegations, that Agostini had failed to investigate the incidents and that had he investigated, he might have determined that Acosta's killer was linked to those gang members or thugs. Further, he failed to inform the District Attorney's office of such leads. Although Manganiello testified that he had cooperated with Agostini and given him his address and [*8] telephone number during their interview shortly after the Acosta murder, Agostini accused Manganiello of killing Acosta, prepared a "follow-up report," or "DD5," that implied that Manganiello was evasive when questioned, and later testified at Manganiello's criminal trial that Manganiello had been evasive. (Tr. 66-68, 200, 202-04, 217.)

The evidence at trial showed that Detective Robert Martinez created a DD5 that documented the fact that two other police officers told him that the morning of Acosta's murder Manganiello had gone to a separate apartment in the building to address an altercation that had been reported there, that Manganiello seemed normal at that time, and that he then left the building with the police officers. (Tr. 173-74, 413.) However, Agostini created a DD5 two weeks later that stated that Manganiello left the apartment before the other officers, which may have left the impression that Manganiello was alone in the other apartment building when Acosta arrived and thus had an opportunity to shoot him. (Tr. 189.) Agostini admitted during trial that his DD5 was in "stark contrast" to the DD5 created by Martinez two weeks earlier. (Tr. 190.)

Soon after Agostini had to [*9] release Manganiello because there was no probable cause for his arrest, Agostini met with Terrance Alston ("Alston"), a Bloods gang member who was incarcerated. (Tr. 243, 475.) Agostini knew that Alston was in jail on the date of Acosta's murder and for four months before Acosta was murdered. (Tr. 82, 244-45, 475.) Alston was a confidential informant to Detective Derek Parker, who specialized in crimes involving the rap and hip-hop industries. Prior to Agostini's meeting with Alston, Parker had interviewed him for an hour about the Acosta murder, and Alston did not mention that Manganiello had tried to hire him to kill another security guard. (Tr. 475-76, 484.) After Agostini met with Alston, he prepared a DD5 that stated that Alston said Manganiello had asked him to kill another security guard as a favor, that Alston asked Manganiello "how much," but Manganiello did not give a price. (Okereke Decl. Ex. G; Tr. 82.) Manganiello, however, testified that he had never met or spoken with Alston. (Tr. 78-79.)

Alston told Agostini that his friend, Johnny Baker, had sold Manganiello a .22 caliber gun, the same caliber as the weapon used in Acosta's murder. (Tr. 250-51.) However, when Agostini [*10] interviewed Baker, Baker said that Alston had lied, and Agostini believed Baker that Alston had lied. (Tr. 251, 258.) When Agostini confronted Alston about his lie, Alston said that he did not want Agostini to interview any witnesses that Alston produced without Alston being present. Alston indicated to Agostini that he would find a witness who would implicate Manganiello within four weeks, if Alston could be released from jail. (Tr. 248, 251-52, 255, 258.) Agostini testified that he thought that Alston was playing games to get out of jail. (Tr. 248, 252-56, 312, 314-15.) However, Agostini never brought this to the attention of the District Attorney's office, nor did Agostini memorialize his impression that Alston was lying to get out of jail or that Alston did not want the witnesses that he produced to be interviewed without Alston being present. (Tr. 253-57, 330, 457, 647.) Agostini further admitted that he was supposed to cease working with informants who were not credible. (Tr. 249.) Agostini testified that he later told the Assistant District Attorney ("Assistant DA") that Alston knew someone who had sold Manganiello a gun but wanted to get out of jail before revealing that information. [*11] (Tr. 315.) The Assistant District Attorney testified that Alston was released from jail in exchange for his testimony against Manganiello. (Tr. 647.)

Once Alston was released, Alston produced another witness, Mark Damon, who met with Agostini and the Assistant DA and told them that he had sold Manganiello a .22 caliber gun. (Tr. 259.) Agostini prepared a DD5 that reported that Damon said, "with permission from [Alston]," that in January 2001 he had sold a .22 caliber gun to an Italian, white, male, heavyset security guard, i.e., a person matching Manganiello's description. (Tr. 86, 258-60.) Manganiello testified that he had never met Damon and never purchased a .22 caliber handgun. (Tr. 86.) Damon subsequently admitted that he had lied because Alston had "made him say it." (Tr. 261, 641.)

Agostini and Abate approached Michael Booth, a local bookie and/or loan shark. (Tr. 268-69.) Agostini told Booth that he had information that a security officer for the Parkchester South Condominium Security Department ("Parkchester"), where Manganiello was a security officer, tried to buy a gun from him. (Tr. 272-73.) At first, Booth said he knew nothing about this and did not want to talk with the [*12] detectives. (Tr. 271-72.) Agostini and Abate brought Booth to the precinct, searched him, found a knife and betting slips with names and monetary amounts on them. (Id.) Agostini told Booth that they would tell the organized crime bureau about him, and only then did Booth write a statement to the effect that Manganiello had tried to buy a gun from him. Agostini created a DD5 that documented this statement. (Tr. 84, 272-73.) Manganiello testified that he had never had such a conversation with Booth. (Tr. 84.) After Booth signed the statement, the detectives gave him back his knife, he left the precinct, no charges were filed, the gambling slips disappeared and Booth's name was not given to the organized crime bureau. (Tr. 273-74.) Agostini informed the Assistant DA of Booth's statement, and ultimately the Assistant DA called Booth to testify at Manganiello's murder trial that Manganiello had tried to buy a gun from him. The Assistant DA testified that she never authorized Agostini or any other detective to withhold criminal charges against Booth in exchange for a statement implicating Manganiello. (Tr. 638.)

Further, approximately two weeks after Acosta's homicide, a cab driver told Agostini [*13] that he had overheard one of his passengers, Alfred Vasquez ("Vasquez"), tell someone over his cell phone that he had witnessed the murder. (Tr. 233.) Agostini questioned Vasquez, and Vasquez told him that although he had told someone on his cell phone that he had witnessed the murder, he was just making it up. However, Agostini did not investigate Vasquez further or even have his fingerprints compared with those found at the scene. (Tr. 234-35.)

Moreover, although Agostini testified that he had given the Assistant DA the entire homicide case file, including his handwritten notes, he had previously testified at a pretrial hearing in the criminal proceedings that he never gave the Assistant DA his spiral notebook, which contained his handwritten notes, including notes of his interview with Manganiello hours after the murder. (Tr. 167-68, 170.) The Assistant DA testified that the homicide case file disappeared when she asked Agostini to bring it to her so that she could copy it. (Tr. 616-17.) The Assistant DA told the jury that she had represented to the criminal trial judge that she never had possession of the homicide case file. (Tr. 610-12.) She also testified that Agostini never gave [*14] her copies of the handwritten interview and investigative notes for her to maintain as part of her file. (Tr. 614.) She testified that, consequently, such notes were never turned over to Manganiello's criminal defense lawyer. (Tr. 615-18.)

Finally, in Manganiello's criminal proceedings, and keeping in mind that he was a security guard, Agostini testified at a pretrial hearing that he had found a note in Manganiello's locker that said, "I feel like killing somebody." In fact, the note said, "I pray every day that I will never have to kill someone." (Tr. 266-67.)

The testimony described above is just some of the testimony from which a reasonable jury could find that Manganiello successfully rebutted the presumption of probable cause that was created by the grand jury indictment.

Agostini mistakenly relies on a statement by the Second Circuit in Rothstein that was particular to the facts of that case, and which neither expresses the general rule nor applies to this case. In Rothstein, the Circuit explained that the plaintiff was required "to establish what occurred in the grand jury, and to further establish that those circumstances warrant a finding of misconduct sufficient to erode the [*15] premise that the Grand Jury acts judicially." 373 F.3d at 284 (quotation marks and citation omitted). Because the content of the defendant's grand jury testimony was unknown, and the plaintiff's counsel conceded that he had no idea what happened before the grand jury, the Circuit in Rothstein held that the plaintiff could not rebut the presumption created by his grand jury indictment and the district court should have granted summary judgment for the defendant. Id. at 284-85. Agostini argues that Manganiello failed to rebut the presumption because he failed to establish at trial that Agostini testified in bad faith to the grand jury. However, the crucial difference between Rothstein and this case is that the defendant in Rothstein was a cooperating witness, not a police officer. Id. at 279. Where the defendant is a police officer, like Agostini, as the Circuit articulated in Rothstein, the plaintiff's avenue for rebuttal is not limited to proof of misconduct in the grand jury alone. Rather, the plaintiff may show that the officer misrepresented the facts to the District Attorney or otherwise acted in bad faith in a way that led to the indictment. Id. at 282-83. Here, Manganiello met [*16] this burden.

B. Elements of Malicious Prosecution

Agostini argues that Manganiello failed to prove that Agostini commenced or continued a criminal proceeding against him without probable cause and with malice. To support his argument, Agostini relies primarily on his own trial testimony, but this carries little weight as the Court must make credibility assessments, and draw all inferences, against the moving party. See Piesco, 12 F.3d at 343. On this score, Agostini's credibility before me, coupled with his demeanor on the stand and at defense table, was at least questionable and at most perjurious, while Manganiello appeared in all respects credible.

1. Initiation or Commencement of Criminal Proceeding

Manganiello was required to prove that Agostini played an active role in the prosecution, which could include giving advice, encouraging the authorities to act, filing criminal charges against the plaintiff, being instrumental in bringing about the criminal charges, or providing false information to the prosecutors. See, e.g., Rohman v. New York City Transit Auth., 215 F.3d 208, 217 (2d Cir. 2000); Ricciuti v. New York City Transit Auth., 124 F.3d 123, 130 (2d Cir. 1997).

In Mejia v. City of New York, 119 F. Supp. 2d 232 (E.D.N.Y. 2000), [*17] the court observed that witnesses may be considered complaining witnesses if they falsely give the prosecutor information that induced the prosecutor to act. 2 Id. at 272. It was significant to the Mejia court that "[p]laintiffs' claim is not that [the defendants] simply went to prosecutors and related the facts as they honestly believed them to be and then let the prosecutor make his or her determination whether to commence proceedings." Id. (emphasis added). Instead, the plaintiff alleged that the defendants misrepresented to prosecutors the true circumstances leading to the arrest and, "thus, induced the prosecutor to commence proceedings based on manufactured evidence [and] further induced the prosecutor to continue the proceedings by giving testimony before the grand jury that was false and/or contained material omissions." Id. See also Ricciuti, 124 F.3d at 130 ("initiation" of prosecution may include preparing false evidence, forwarding it to prosecutors, suborning perjury and committing perjury).

FOOTNOTES

2 Although the Mejia court made this observation in the context of qualified immunity, not "initiation" of prosecution, qualified immunity and "initiation" of prosecution are conceptually [*18] intertwined. "Whether a witness is a complaining witness [for purposes of qualified immunity] is a fact-based question that coincides with the determination of whether the witness played such a role in initiating the proceedings that it can be said the witness commenced or continued proceedings against the plaintiff within the meaning of the law of malicious prosecution." 119 F. Supp. 2d at 272.


Assessing credibility against Agostini and drawing all inferences in favor of Manganiello, as this Court must, there was enough evidence for the jury to reasonably conclude that Agostini commenced or initiated the criminal prosecution. For example, in addition to the testimony described above, Abate testified that Agostini provided the District Attorney's office with all the information that led to the authorization for Manganiello's arrest. (Tr. 386.) Agostini also signed the felony complaint. (Tr. 658.) See Ricciuti, 124 F.3d at 130 (holding that "a jury could clearly find" that the defendant initiated the prosecution "because no one disputes that he started the prosecution by filing the charges of second-degree assault").

2. Absence of Probable Cause

Manganiello was required to prove that Agostini [*19] did not have probable cause to commence or continue criminal proceedings against him. Probable cause is the knowledge of facts strong enough to justify a reasonable belief that there are lawful grounds for prosecuting a person for a crime. Rounseville v. Zahl, 13 F.3d 625, 629 (2d Cir. 1994). Probable cause requires more than rumor or suspicion. United States v. Fisher, 702 F.2d 372, 375 (2d Cir. 1983).

Where officers fabricate evidence, there is sufficient evidence of a lack of probable cause to support a malicious prosecution finding. See Richardson v. City of New York, No. 02 Civ. 3651, 2006 U.S. Dist. LEXIS 69577, 2006 WL 2792768, at *5 (E.D.N.Y. Sept. 27, 2006). Assessing the witnesses' credibility and drawing inferences in favor of Manganiello, a jury could reasonably conclude that Agostini provided false information to the Assistant DA and fabricated evidence. For example, Agostini knew that his main witness, Alston, was not credible and yet failed to provide such evidence to the prosecutor. Further, Agostini's failure to inquire further into various leads, when a reasonable person would have done so, evidences a lack of probable cause. See Lowth v. Town of Cheektowaga, 82 F.3d 563, 571 (2d Cir. 1996) (citing [*20] Colon, 60 N.Y.2d at 82).

The jury was instructed that it could not return a verdict in favor of Manganiello, unless it found, inter alia, "the absence of probable cause" for the criminal proceeding against him. The jury's verdict in Manganiello's favor means that it found an absence of probable cause, and thus chose to credit Manganiello's version of the events and to discredit Agostini's testimony. Here, there was not "such an overwhelming amount of evidence in favor of" the notion that Agostini had probable cause to initiate and continue the prosecution, and the jury's verdict was not the result of "sheer surmise and conjecture." See Galdieri-Ambrosini, 136 F.3d at 289.

3. Malice

Manganiello was required to show that Agostini commenced or continued the criminal prosecution out of malice. "Malice may be shown by proving that the prosecution complained of was undertaken from improper or wrongful motives, or in reckless disregard of the rights of the plaintiff." Pinsky v. Duncan, 79 F.3d 306, 313 (2d Cir. 1996) (quotation marks and citation omitted). Moreover, "[m]alice may be inferred from the lack of probable cause." Id.

The jury was instructed that if they found that Agostini did not [*21] have probable cause to believe that Manganiello committed the crime, they could, but were not required, to infer that Agostini acted maliciously. See Ricciuti, 124 F.3d at 131 ("[A] jury could find that probable cause for the charges against the plaintiffs was lacking, and that finding alone would support an inference of malice."); Lowth, 82 F.3d at 573 ("In most cases, the lack of probable cause--while not dispositive--'tends to show that the accuser did not believe in the guilt of the accused, and malice may be inferred from the lack of probable cause.'") (quoting Conkey v. State, 74 A.D.2d 998, 427 N.Y.S.2d 330, 332 (N.Y. App. Div. 1980)). Here, since the jury found that there was no probable cause for Manganiello's prosecution, it was entitled to infer the existence of malice.

C. Qualified Immunity

Agostini argues that the Court should grant him qualified immunity. Qualified immunity "shields government officials performing discretionary functions 'from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Zellner v. Summerlin, 494 F.3d 344, 367 (2d Cir. 2007) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982)).

"Whether [*22] a defendant officer's conduct was objectively reasonable is a mixed question of law and fact." Zellner, 494 F.3d at 367 (citing Kerman v. City of New York, 374 F.3d 93, 109 (2d Cir. 2004)). In Zellner, the Second Circuit clarified the appropriate procedures for determining qualified immunity when material facts pertaining to immunity are in dispute. See id. at 368. Zellner directs that the jury should resolve "any disputed facts that are material to the qualified immunity issue," but the court must make the "ultimate determination of whether the officer's conduct was objectively reasonable." Id. (citing Stephenson v. Doe, 332 F.3d 68, 81 (2d Cir. 2003)). The jury should make the factual determinations through responses to special interrogatories. Id. Because qualified immunity is an affirmative defense, the defendant bears both the burden of proof and the obligation to request the specific factual interrogatories that would be necessary to enable the court to make the appropriate legal determination. Id. at 368. "To the extent that a particular finding of fact is essential to a determination by the court that the defendant is entitled to qualified immunity, it is the responsibility [*23] of the defendant to request that the jury be asked the pertinent question. . . . If the defendant does not make such a request, he is not entitled to have the court, in lieu of the jury, make the needed factual finding." Id.

Here, the defendants' counsel failed to make such a request, i.e., that the jury be asked specific factual questions to enable the Court to make a determination as to qualified immunity, despite the Court's having noted on the record that the defendants' counsel should do so. 3 (See Tr. 586-87, 799.) Nonetheless, despite counsel's failure, the Court presented the jury with a special interrogatory, so that the Court could base its decision on the factual findings made by the jury. The jury found that Agostini misrepresented the evidence to prosecutors, or failed to provide the prosecutor with material evidence or information, or gave testimony to the grand jury that was false or contained material omissions, and knew that he was making a material misrepresentation or omission or giving false testimony.

FOOTNOTES

3 The defendants' counsel only requested that the Court ask the jury directly, on the verdict sheet, whether each defendant should be granted qualified immunity. This [*24] was not a factual question. As the Court may not ask the jury to decide the legal issue of qualified immunity, but must make that determination itself, the defendants' request was denied. See Zellner, 494 F.3d at 367; Stephenson v. Doe, 332 F.3d 68, 78-81 (2d Cir. 2003) (holding that district court erred in charging the jury on qualified immunity).


Based on the jury's factual finding, I had to determine "whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." See Saucier v. Katz, 533 U.S. 194, 202, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001). The right to be free from malicious prosecution in the absence of probable cause is a well-established constitutional right. The concern expressed by the Supreme Court in Saucier, that "reasonable mistakes can be made as to the legal constraints on particular police conduct" does not come into play here. See id. at 205. An officer is entitled to the immunity defense "[i]f the officer's mistake as to what the law requires is reasonable." Id. Here, the jury's finding was not surmise or conjecture; there was, as described above, evidence that Agostini made material misrepresentations or omissions, such as the Alston's credibility [*25] problems, and that he knew he was doing so. Therefore, it would not have been objectively reasonable for Agostini to believe that his actions or omissions were in sink with clearly established constitutional rights. Put another way, there could be no disagreement among officers of reasonable competence that the conduct was unlawful. Agostini's affirmative defense of qualified immunity is denied.

II. AGOSTINI'S MOTION FOR A NEW TRIAL

The court has significant discretion in deciding whether to grant a Rule 59 motion for a new trial. See, e.g., Amato v. City of Saratoga Springs, 170 F.3d 311, 314 (2d Cir. 1999). In determining whether to order a new trial under Rule 59, a district court may independently weigh the evidence. See, e.g., Song v. Ives Labs, Inc., 957 F.2d 1041, 1047 (2d Cir. 1992). A motion for a new trial "may be granted even if there is substantial evidence to support the jury's verdict." Id. A jury's verdict, however, should not be disturbed unless it is seriously erroneous:

The trial judge, exercising a mature judicial discretion, should view the verdict in the overall setting of the trial; consider the character of the evidence . . . ; and abstain from interfering with [*26] the verdict unless it is quite clear that the jury has reached a seriously erroneous result. The judge's duty is essentially to see that there is no miscarriage of justice.

Bevevino v. Saydjari, 574 F.2d 676, 684 (2d Cir. 1978); see also Caruolo v. John Crane, Inc., 226 F.3d 46, 54 (2d Cir. 2000) ("A motion for a new trial ordinarily should not be granted unless the trial court is convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice.") (quotation marks and citation omitted).

Agostini moves for a new trial on several grounds, discussed in turn below.

A. Failure to Bifurcate Liability and Damages

Agostini argues that the Court's refusal to bifurcate the liability and damages portions of the trial resulted in undue prejudice. Fed. R. Civ. P. 42(b) allows a court to bifurcate a trial where doing so would be "conducive to expedition and economy." Factors to be considered by the court include, but are not limited to,

(1) whether the issues are significantly different from one another; (2) whether the issues are to be tried before a jury or to the court; (3) whether the posture of discovery on the issues favors a single trial or bifurcation; [*27] (4) whether the documentary and testimonial evidence on the issues overlap; and (5) whether the party opposing bifurcation will be prejudiced if it is granted.

Guidi v. Inter-Continental Hotels Corp., No. 95 Civ. 9006, 2003 U.S. Dist. LEXIS 5739, 2003 WL 1846864, at *1 (S.D.N.Y. Apr. 8, 2003) (citing Dallas v. Goldberg, 143 F. Supp. 2d 312, 315 (S.D.N.Y. 2001)). The moving party bears the burden of establishing that bifurcation is warranted. Id.

Prior to trial, the defendants in this case submitted a motion in limine that argued, inter alia, that substantial prejudice to the defendants would result if the trial were not bifurcated. The defendants argued, as Agostini does now, that the testimony of Manganiello's expert witness as to Manganiello's economic losses and the testimony of his treating psychiatrist as to his post-traumatic stress disorder would evoke undue sympathy on the part the jury prior to any deliberation on liability. At trial, Manganiello called an expert witness, Dr. Frank D. Tinari, an economist, who opined as to Manganiello's economic losses due to having lost his jobs as a Parkchester security guard and as a part-time state police officer and assuming he would be unable to work and would have [*28] retired in the year 2023. (Tr. 594-600.) Dr. Rehana Latif, a licensed psychiatrist and Manganiello's treating psychiatrist, testified that Manganiello suffers from post-traumatic stress disorder as a result of his criminal prosecution and is unable to function in his daily activities or to work. (Tr. 679-82.)

Courts have broad discretion to decide whether to bifurcate issues of liability and damages. See Simpson v. Pittsburgh Corning Corp., 901 F.2d 277, 283 (2d Cir. 1990). Here, I refused to bifurcate the trial because it did not appear that the defendants would be prejudiced and any possibility of prejudice could be mitigated by a limiting instruction to the jury. Indeed, I instructed the jury:

If you find that plaintiff has proven all of the elements of his claim for relief, you will then consider damages. You should not interpret the fact that I am giving instructions about damages now as an indication that I believe that the plaintiff should, or should not, be awarded damages. It is your task and yours alone to decide whether the defendant whom you are considering is liable. Only if you find that any defendant is liable may you reach the issue of damages.

(Tr. 790-91.)

As to the expert, [*29] Dr. Tinari, I instructed the jury that

like any other witness, you may reject the expert's opinion if you find the facts to be different from those which form the basis of his opinion. His opinion is not gospel. You may also reject an opinion if, after careful consideration of all the evidence in the case, expert and otherwise, you disagree with that opinion. In other words, you are not required to accept an expert's opinion to the exclusion of the facts and circumstances disclosed by other testimony. Such an opinion is subject to the same rules concerning reliability as the testimony of any other witness. It is given to assist you in reaching a proper conclusion; it is entitled to such weight as you find the expert's qualification in the field warrant and must be considered by you, but is not controlling upon your judgment.

Keep in mind that the testimony of the expert, Dr. Tinari, is relevant only to damages, and you should consider it only if you find one or more of the defendants to be liable for the malicious prosecution.

(Tr. 779.)

"It is a fundamental proposition that a jury is presumed to follow the instructions of the trial judge." Britt v. Garcia, 457 F.3d 264, 272 (2d Cir. 2006) [*30] (quotation marks and citation omitted). Moreover, the record contains no indication that the jury was unable to follow the limiting instruction. Nor, in light of the jury's finding that three of the five defendants were not liable, the expert and other witnesses' testimony in connection with damages were not "devastating" to Agostini's defense. See United States v. Becker, 502 F.3d 122, 130 (2d Cir. 2007) (courts must "presume that juries follow limiting instructions," unless "there is an overwhelming probability that the jury will be unable to follow the court's instructions and the evidence is devastating to the defense").

B. Manganiello's Testimony about His Detention and Arrest

Prior to trial, the defendants submitted a motion in limine that sought to preclude Manganiello from testifying about Agostini and Abate's questioning of him at the precinct shortly after the homicide. The Court denied the motion. The defendants argued, as Agostini does now, that Agostini's conduct during his interview of Manganiello on that date is irrelevant to the issue of whether Agostini acted improperly in connection with the evidence put before the grand jury by the Assistant DA, and that such evidence [*31] would be unduly prejudicial pursuant to Fed. R. Evid. 402 and 403.

At trial, Manganiello testified that when he arrived at the precinct for questioning, he was having heart palpitations from running down the street and from what he saw at the scene of the homicide and that, rather than medical attention, he was placed in an "interrogation room" with Agostini. (Tr. 65.) After Agostini asked several pedigree questions, including his address and phone number, Manganiello underwent a medical examination by the NYPD Emergency Services Unit and sensors were placed on his chest. (Tr. 66.) Agostini refused Manganiello's request for a further medical examination due to his heart palpitations. (Tr. 66.) Manganillo testified that Agostini then asked him if he had killed Acosta, and that he responded, "Are you fucking crazy?" (Tr. 68.) He testified that Agostini was "pissed off" and looked at him as if Manganiello were a "piece of garbage." (Tr. 68.) Agostini and Abate laughed at Manganiello as they stripped him of his clothes, jacket, shirt, belt and keys. (Tr. 69.) Manganiello further testified that Agostini ripped off a band-aid from Manganiello's finger and told Manganiello that he would not [*32] need it any more. (Tr. 69.) When Manganiello was placed in a holding cell with only his pants and T-shirt, he asked Agostini for the rest of his clothes since he was cold, but Agostini laughed and walked away. (Tr. 70.) Manganiello was kept in the holding cell overnight and was not released until 5 a.m. the next morning. (Tr. 70.) At that time, Agostini told him to leave but did not give him his car keys. He also did not permit Manganiello to lace up or tie his shoes at the precinct, but rather told him to get out of the "fucking station house." (Tr. 71.) Manganiello testified that he was nauseous and dizzy and could not sleep thereafter. (Tr. 71.)

Agostini also argues that the Court should not have permitted Manganiello to testify about his arrest that occurred several months later. In April 2001, Manganiello was filling up his car at a gas station when two officers with guns pointed ran toward him. Manganiello testified that he did not know they were police officers and thought he was being carjacked. He testified that the officers threw him against a car and handcuffed him. (Tr. 73-74.) He testified that Agostini said, "now we got him good," and that at the precinct he was strip-searched [*33] and put into the holding cell while Agostini and the other detectives were laughing. (Tr. 74.) Manganiello ultimately spent ten days in custody at Riker's Island. (Tr. 76.)

The Court permitted this testimony at trial for it bore directly on the issue of malice, which Manganiello had to prove. A jury could infer from this testimony that Agostini bore a personal grudge against Manganiello and that this at least in part motivated Agostini to pursue the prosecution. Moreover, Manganiello was released from the precinct not as a volitional act by Agostini, but only after his supervisors concluded that there was no probable cause for his arrest. A juror might easily infer from Agostini's behavior that Agostini was frustrated that he was unable to obtain an arrest warrant and thereby keep Manganiello in jail even longer. See Lowth, 82 F.3d at 573) (defining malice as "a wrong or improper motive, something other than a desire to see the ends of justice served"). Agostini's treatment of Manganiello is relevant to the issue of malice, and this conduct more than meets the Lowth test.

C. Dr. Latif's Testimony

Agostini argues that Dr. Latif, Manganiello's treating physician, should not have been permitted [*34] to testify as to her opinion concerning the cause of Manganiello's post-traumatic stress disorder because this opinion was based solely on statements made to her by Manganiello. (See Tr. 689-90.) Agostini asserts that in permitting Dr. Latif to testify as to her opinion, the Court allowed her to testify as if she were an expert, despite the fact that Manganiello never proffered her as an expert or provided any Rule 26(a)(2) disclosure. Agostini further contends that Dr. Latif's testimony to the effect that Manganiello's psychological injuries were caused, to a reasonable degree of medical certainty, by his prosecution was extremely prejudicial to Agostini. (See Tr. 681-82.) Reading the City's brief, one cannot help but wonder if, in its view, only evidence not prejudicial to its client is admissible.

The Court overruled the defendants' objection to Dr. Latif's testimony, explaining that "[s]he is a treating doctor and relating to us her opinion during the course of that treatment and what it portends. I can't imagine a better treating doctor type of testimony . . . ." (Tr. 683.) Agostini argues that the Court's statement improperly bolstered Dr. Latif's testimony.

The law is quite to [*35] the contrary: (1) because Dr. Latif was a treating physician, and not an expert witness, Manganiello had no duty to provide any Rule 26(a)(2) disclosure; and (2) Courts in this Circuit have regularly held that treating physicians may testify as to opinions formed during their treatment, including causation, severity, disability, permanency and future impairments, without the obligation to submit an expert report. See, e.g., Zanowic v. Ashcroft, No. 97 Civ. 5292, 2002 U.S. Dist. LEXIS 3857, 2002 WL 373229, at *2 (S.D.N.Y. Mar. 8, 2002) ("There can be no serious dispute that, as a treating physician, Dr. Giovinazzo was free to testify to opinions he formed in the course of treating [plaintiff], without regard to the disclosure requirements of Rule 26(a)(2)."); see also Smolowitz v. Sherwin-Williams Co., No. 02 Civ. 5940, 2008 U.S. Dist. LEXIS 91019, 2008 WL 4862981, at *4 (E.D.N.Y. Nov. 10, 2008) (noting that some cases suggest "that treating physicians may render expert opinion testimony regarding causation even without submitting a detailed report"); NIC Holding Corp. v. Lukoil Pan Americas, LLC, No. 05 Civ. 9372, 2007 U.S. Dist. LEXIS 36680, 2007 WL 1467424, at *1 (S.D.N.Y. May 16, 2007) (observing that "treating physicians often are allowed to express their opinions [*36] as to the causes of an injury, based on their training and experience").

Here, Dr. Latif's testimony was based solely on her treatment of Manganiello and Manganiello's medical and psychological history as communicated to her by Manganiello himself. Therefore, Agostini was not denied a fair trial on account of Dr. Latif's testimony.

D. Conduct of the Trial

Agostini asserts that the Court's comments during the trial, and the conduct of the trial, were unduly prejudicial. Agostini complains that the Court refused to hold side-bar discussions with counsel during the trial and thus all of the Court's comments were made in the presence of the jury. (See Tr. 270.) According to Agostini, the Court on several occasions openly criticized the sufficiency or importance of the defendants' crucial evidence. For example, during the cross examination of a former police lieutenant, the defendants introduced a DD5 that indicated that Manganiello had been involved in a physical altercation with Acosta many years earlier. The defendants proffered this evidence in an attempt to show that there was probable cause for the prosecution. During Manganiello's examination on redirect, I addressed the jury and said [*37] that

[t]he reason we are letting any of this in, really, is on a flimsy basis, it seems to me. But if it's far away from the time of the incident in question, then it really ought not to be given any weight by the jury. So the only reason that he's asking these questions is because he can't tell when it happened, and if it was long ago it should be given less weight.

(Tr. 462-63.)

Agostini also argues that the Court bolstered the evidence that Manganiello presented in connection with Booth and why he was not arrested after he provided a statement to Agostini. Despite the fact that I previously had denied the defendants' in limine motion seeking to exclude such evidence, the defendants' counsel objected to the evidence during the trial. In response to the objection, I stated:

Let me clarify how you may have misunderstood the ruling with respect to the motion in limine, but the bottom line is that the evidence with respect to Booth and the fact that he had not been arrested was something I found to be relevant, and I can tell you why, but in fact that's partially the way I came out with respect to this and differently with respect to Alston.

(Tr. 272.) Later in the trial, I also stated, "I [*38] will, again, take judicial notice. That [i.e., threatening a witness] would not be good police practice." (Tr. 421.)

Agostini further argues that I was "openly hostile" to his explanation about the so-called "missing box" of evidence in the case. (Defs.' Mem. of Law at 23.) After Agostini contradicted himself during his testimony, I asked him, "Detective, is there any doubt in your mind that within the last ten minutes you changed from having given it [i.e., the spiral notebook from the box] to her [i.e., the Assistant DA] to not having given it to her?" (Tr. 170.) I made several other inquiries of Agostini to the effect of whether it often happens that detectives' notes are misplaced and not turned over to defense counsel in a criminal proceeding. Agostini argues that the Court's comments regarding the "missing box" were unduly prejudicial and grounds for a new trial, in light of Agostini's "rational" explanation for why the box was missing. 4

FOOTNOTES

4 Agostini explained that the box went missing in the course of renovations of the precinct that occurred after he was transferred, and that the box was available to the Assistant DA at the time of the grand jury presentation but went missing [*39] three years later when the Assistant DA was preparing for the criminal trial. (See Tr. 202, 204, 612-17.) He also argues that Agostini, Abate and Martinez each testified that they transposed the notes that they took in their spiral notebooks to their DD5s, which contained the same information and were not lost. (See Tr. 283, 378, 404.)


Agostini asserts that the Court "berated" him during his testimony and that the Court made it appear as if Agostini were responsible for Alston's release from jail when I asked him, "Is it your decision whether he gets out of jail or not? . . . Where did you have to go to make that happen?") (See Tr. 315.)

These remarks do not constitute grounds for a new trial. The issue is not "whether the trial judge's conduct left something to be desired, or even whether some comments would have been better left unsaid[, but] . . . whether the judge's behavior was so prejudicial that it denied [a party] a fair, as opposed to a perfect, trial." United States v. Rosa, 11 F.3d 315, 343 (2d Cir. 1993) (quotation marks and citation omitted). Further, "asking numerous and probing questions of witnesses" is "unquestionably proper," especially where, as here, my "questioning [*40] [related] to inquiries necessary to clarify ambiguities, correct misstatements, or obtain information necessary to make rulings." United States v. Manko, 979 F.2d 900, 905 (2d Cir. 1992). The Circuit "will reverse on the basis of a judge's improper remarks if the judge expresses [his] opinion on an ultimate issue of fact in front of the jury or [argues] for one of the parties." Shah v. Pan Am. World Servs., Inc., 148 F.3d 84, 98 (2d Cir. 1998) (alterations in original).

All the questions that this Court posed to witnesses were for clarification and due to the fact that, in the case of Agostini, his testimony was frequently contradictory and ambiguous and appeared less than candid and forthcoming. In any event, the jury was thoroughly instructed that they were not to draw any inferences from the Court's questions:

I also ask you to draw no inference from the fact that upon occasion I may have asked questions of certain witnesses. Such questions were only intended for clarifications or to expedite matters and certainly were not intended to suggest any opinion on my part as to the verdict you should render or whether any of the witnesses may have been more credible than any other of the [*41] witnesses.

(Tr. 772.) As the jury is presumed to follow their charge, see Britt, 457 F.3d at 272, my comments were hardly a miscarriage of justice and did not lead the jury to a seriously erroneous result.

Agostini asserts that this Court's "unsolicited and prejudicial comments regarding irrelevant points of law or misstatements of the law" caused a miscarriage of justice. (Defs.' Mem. of Law at 25.) For example, during Officer Nieves' direct examination by Manganiello regarding her testimony before the grand jury, I stated that "[t]he element here that is most disturbing to, I believe, all of us is that we have to show--indeed the plaintiff has to show that a defendant or more than one acted maliciously, [and] if indeed this woman testified to the effect that--differently than she had heard only a few minutes before, that seems to me to go to that element." (Tr. 490.) As the jury was later instructed completely on the meaning of "malice," this was hardly an incorrect statement of the law. Indeed, a "deliberate act punctuated with awareness of 'conscious falsity'" is evidence of malice, and if Officer Nieves had deliberately testified falsely, this would "go to that element." See Brogdon v. City of New Rochelle, 200 F. Supp. 2d 411, 423 (S.D.N.Y. 2002) [*42] (quotation marks and citation omitted).

Agostini also bases his Rule 59 motion on this Court's prohibition of the use of certain DD5s during defense counsel's summation, i.e., those that had not been introduced into evidence during the trial, even though I had previously explained to counsel that my practice is to review all of the exhibits prior to trial and make preliminary determinations as to which are admissible. As I explained, during the jury's deliberations I do not permit the jury to view exhibits that were not actually introduced into evidence during the trial and authenticated by a witness. Put another way, simply because this Court rules that an exhibit is "admissible" does not mean that the exhibit is "admitted," nor does it obviate the need for the party that submits the exhibit to the Court to introduce it into evidence. The defense attorneys' brief mischaracterizes the transcript when they state that "the Court admitted that the DD5s had in fact [*43] been entered into evidence, and that the confusion was its own fault. Defendants, however, were not allowed to reopen their closing to utilize the additional DD5s they intended to use, nor was the jury advised of the confusion." (Defs.' Mem. of Law at 26.) In fact, what the Court told defense counsel, out of the presence of the jury, according to the transcript, is as follows:

I just want to clarify . . . . The DD5s that I presume you were interested in [using in your summation], which were P-2 and Z-7 . . . . I think what happened is that those were declared admissible on my list of all the evidence that was provided so that I could rule on them, but, as I told you at the outset, I am not anxious having thousands of pieces of paper before the jury. So the way I limit it, even though I spend the time to go through all of them, is to make sure that I only admit those that actually go to the jury, not whether or not they are admissible; only those that a witness looks at or talks about or identifies. So far as I am concerned, neither P2 nor Z-7 pass that test.

On the other hand, from what I can glean from the transcript hurriedly is there was some conversation about putting all of them [*44] in, all of the DD5s into evidence.

(Tr. 763.)

After more colloquy, I allowed, assuming no objection or different recollection and assuming the jury asks for them, that the jury might see all of the DD5s. (Tr. 763.) Ultimately, while not my practice and over Manganiello's objection, I told defense counsel that he could either reopen his summation to present the two DD5s or have all the DD5s moved into evidence so that the jury, upon request, could see them. Defense counsel opted for the latter, and indeed the jury asked to see all the DD5s "that were brought into evidence." (Tr. 767, 804.) Thus, there was no prejudice. 5

FOOTNOTES

5 Similarly, Agostini's argument that this Court caused a miscarriage of justice when it imposed time limits on defense counsel's repetitive and irrelevant questioning of witnesses is without merit. See Defs.' Mem. of Law at 27. The Court has the obligation to conduct its trials efficiently and without too much duplicative testimony. See Fed. R. Evid. 403.


Finally, while hardly necessary, the impartiality of this Court is evident throughout the litigation. The fact is that I granted summary judgment in favor of the City of New York and five police officers, more than half [*45] of the individual defendants. Moreover, at trial, the jury found that two of the four remaining police officer defendants were not liable for malicious prosecution. On a related matter, and looking at the trial transcript in its entirety, it is evident that any comments of mine to the effect that counsel should hasten their presentations were made equally to Manganiello's attorney as to the defense. It is perhaps worth noting that the Court's impartiality in this matter was maintained despite the fact that the evidence and testimony failed to cast the NYPD in its "finest" light.

With respect to this Court's rulings on objections and comments to counsel in the presence of the jury, any prejudice was cured by the following limiting instruction to the jury:

During the trial, I have been called upon to make rulings on various questions. Those rulings are not evidence and need not be considered by you. Procedural matters are matters of law and, although you may have been curious about them, you should not consider them. The rulings I have made during the trial are not any indication of my views of what your decision should be.

(Tr. 772.)

Therefore, Agostini's motion for a new trial based on [*46] alleged improper conduct by this Court is denied.

E. Consistency of the Jury Verdict

Agostini argues that he is entitled to a new trial because the jury's verdict with respect to another defendant, Abate, was inconsistent. The jury found that Abate had maliciously prosecuted Manganiello, but when asked whether Abate misrepresented the evidence to prosecutors, failed to provide the prosecutor with material evidence or information, or gave testimony to the grand jury that was false or contained material omissions, and knew that he was making such a material misrepresentation or omission or giving false testimony, the jury answered "no." This was not an inconsistent verdict, as it is conceivable that an officer could commence or continue a prosecution, without probable cause, and motivated by malice, but yet not have committed such egregious acts as those that were listed in the special interrogatory to the jury. Based on the jury's answer to this question, this Court determined that Abate's "conduct [did] not violate clearly established statutory or constitutional rights of which a reasonable person would have known," and thus granted Abate qualified immunity. See Zellner, 494 F.3d at 367. [*47] The jury's answer does not indicate that the jury misunderstood the instructions, and thus a new trial is not warranted.

F. Jury Instruction on Adverse Inference

Agostini asserts that the Court's adverse inference instruction to the jury concerning documents or other evidence that was not produced in the lawsuit was "so confusing as to be wholly improper and unduly prejudicial and must result in a new trial." (Defs.' Mem. of Law at 29.) Specifically, the Court instructed the jury:

If you find that a party could have produced documents or other evidence in this lawsuit, and that such evidence was at one time within that party's control or in his or her custody, and that this evidence would have been relevant in deciding facts in dispute in this lawsuit, you are permitted, but not required, to infer that the evidence, if produced, would have been unfavorable to that party.

In [*48] deciding whether to draw this inference, you should consider whether the evidence that was not produced would merely have duplicated other evidence already introduced. You may also consider whether the party has offered a reason for not producing this evidence, and whether that reason was explained to your satisfaction.

(Tr. 782-83.)

The instruction accurately stated the law. See, e.g., Cordius Trust v. Kummerfeld, No. 99 Civ. 3200, 2008 U.S. Dist. LEXIS 1824, 2008 WL 113664, at *3-4 (S.D.N.Y. Jan. 11, 2008). Further, Manganiello showed that Agostini had control over the handwritten notes and other evidence in the box that went missing and had an obligation to timely produce it, that the missing evidence was relevant to Manganiello's defense in the criminal case and to his malicious prosecution claim in this case, and that a reasonable jury could find that Agostini had a "culpable state of mind" when the box went missing. See 2008 U.S. Dist. LEXIS 1824, [WL] at *3 (quoting Residential Funding Corp. v. Degeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2002)).

The handwritten notes that Agostini took during his interviews of Manganiello and of other witnesses, which were all contained in the homicide case box that went missing, could have been relevant, [*49] were they available, to show that Agostini lacked probable cause. The missing box also contained all the other police officers' handwritten notes. Moreover, the Assistant DA's file, which may have contained information concerning the agreement reached with Alston for his release from jail, also disappeared, as Manganiello's counsel learned when he attempted to subpoena it. The missing relevant information warranted the adverse inference instruction, and were this unfairly prejudicial, it was mitigated by the instruction to the jury to consider whether any party had offered a reason for not producing the evidence, and whether the evidence would have merely duplicated other evidence already produced. Therefore, the adverse inference instruction was not a miscarriage of justice, nor did it or could it lead to a seriously erroneous verdict.

G. Defendants Were Not Permitted to Argue Motions at Close of Evidence

Agostini argues that he is entitled to a new trial because his counsel were not permitted to argue their Rule 50 and 59 motions following the completion of the plaintiff's and defendants' cases. (See Tr. 694-95, 762.) It is this Court's practice to assume that all motions which could [*50] be made have been made and to reserve decision until after the verdict, and this practice is well within this Court's discretion. In fact, Agostini offers no case law or other authority to the contrary, and so his motion is denied. The fact is that, should I believe that the Plaintiff has failed to make out a prima facie case and thus might likely grant the motion and conclude the litigation, I always permit argument. This was hardly the case here.

H. Failure to Issue Special Interrogatories on Qualified Immunity

Agostini argues that this Court failed to give special interrogatories to the jury on qualified immunity, but as explained in detail above, the Court had no such obligation in the absence of any specific request by the defendants, see Zellner, 494 F.3d at 368, and this Court did, in fact, sua sponte pose a special interrogatory to the jury on qualified immunity. Indeed, this Court based its decisions on whether to grant qualified immunity to Agostini and Abate on the jury's factual finding as expressed in its answer to the special interrogatory proposed by the Court and with no assistance from defense counsel.

I. Jury Instruction on Probable Cause

Finally, Agostini asserts that [*51] this Court's jury instruction on the probable cause element was misleading and improper. Specifically, Agostini objects to the portion of the instruction that told the jury that there was no probable cause for the prosecution if the defendants failed to make "a complete and full statement of facts to the grand jury," and that this caused an "immeasurable" prejudicial effect on Agostini.

The language to which Agostini refers is not in the Court's main instruction on probable cause, but rather in the instruction on the evidence required to rebut the presumption of probable cause created by the grand jury indictment, which is discussed at length above. The Court's instruction in its entirety was:

The grand jury's indictment of Mr. Manganiello creates a rebuttable presumption of probable cause. The plaintiff may overcome this presumption by showing by a preponderance of the evidence that the defendant whom you are considering did not make a complete and full statement of facts either to the grand jury or to the district attorney, that he or she misrepresented or falsified evidence, or that he or she withheld evidence or otherwise acted in bad faith, and that this action or omission by the [*52] defendant had an impact on the grand jury's decision to indict Mr. Manganiello. Put another way, to rebut the presumption of probable cause created by the grand jury indictment, the plaintiff must establish by a preponderance of the evidence that the grand jury's indictment was the result of fraud, perjury, the suppression of evidence or other police conduct undertaken in bad faith. Such conduct could include failing to provide documents or other testimony or providing false documents, such as a false DD5, or other false testimony, to either the grand jury or the district attorney, so long as such conduct by the defendant had an impact on the grand jury's decision to indict Mr. Manganiello.

(Tr. 788-89.)

As this language was taken nearly verbatim from the Second Circuit's statement of the law in Rothstein, or a logical consequence thereof, Agostini's argument is unavailing. See 373 F.3d at 283.

III. AGOSTINI'S MOTION FOR REMITTITUR

Finally, Agostini moves pursuant to Rule 59 for an order of remittitur to reduce the total jury award of $ 1,426,621. The jury's verdict may be overturned where it is so excessive that it shocks the conscience of the court. See Matthews v. CTI Container Transp. Int'l. Inc., 871 F.2d 270, 278 (2d Cir. 1989). [*53] "While a jury has broad discretion to award damages as it feels appropriate . . . a jury verdict cannot stand if it is the result of a miscarriage of justice and represents a windfall to the plaintiff without regard for the actual injury." Denman v. Sanders, No. 05 Civ. 25, 2006 U.S. Dist. LEXIS 7612, 2006 WL 452018, at *8 (S.D.N.Y. Feb. 24, 2006) (quoting Carter v. Rosenberg & Estis, P.C., No. 95 Civ. 10439, 1998 U.S. Dist. LEXIS 4010, 1998 WL 150491, at *5 (S.D.N.Y. Mar. 31, 1998)). In determining whether a damages award is shockingly excessive, the court should consider the amounts awarded in other comparable cases. See Mathie v. Fries, 121 F.3d 808, 813 (2d Cir. 1997). Agostini argues that recent jury verdicts for compensatory damages in malicious prosecution cases have been in the "range" of $ 250,000. (Defs.' Mem. of Law at 33.)

A plaintiff in an action pursuant to 42 U.S.C. § 1983, like Manganiello, is entitled to compensatory damages for pecuniary loss, humiliation, injuries, damage to reputation, mental anguish and suffering. See Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 306, 106 S. Ct. 2537, 91 L. Ed. 2d 249 (1986). Here, Dr. Latif, Manganiello's psychiatrist for seven years, testified that she diagnosed Manganiello with post-traumatic stress disorder [*54] with anxiety symptoms and major depression. (Tr. 674, 676, 679, 681-82, 688.) Dr. Latif testified that Manganiello suffered from moderate to severe panic attacks, which caused him to be unable to function in any capacity or to work. (Tr. 675-77.) Dr. Latif testified that the severe stress caused Manganiello to have a chemical imbalance that has permanently disabled him and his prognosis is poor to fair. (Tr. 679, 680-85.) She further testified that Manganiello is unable to pursue any work because his cognitive functioning, emotions, concentration, understanding and energy levels are too impaired. (Tr. 679, 680, 684.)

Moreover, the evidence established that Manganiello lost his jobs as a Parkchester security officer and part-time policeman, and lost his police certification, because of the prosecution. (Tr. 108.) Dr. Tinari, Manganiello's expert economist, calculated Manganiello's pecuniary losses conservatively, e.g., by making various reductions from Manganiello's base earnings to account for time that he may have spent out of the workforce, the probability of unemployment or temporary layoffs and job maintenance expenses. (Tr. 594-95.) The total amount of past lost earnings calculated [*55] by Dr. Tinari was $ 377,000. (Tr. 598.) For future lost earnings, Dr. Tinari assumed that Manganiello would have worked until 2023, when he would have retired at age 61.5 years, based on statistical averages. (Tr. 599.) After discounting Manganiello's future lost earnings to present value, Dr. Tinari calculated Manganiello's lost future earnings to be $ 829,000. (Tr. 600.) Thus Dr. Tinari opined that Manganiello's total lost past and future earnings are slightly more than $ 1.2 million. (Tr. 600.)

Manganiello was also entitled to recover the $ 110,000 in attorneys' fees that he paid for his criminal defense, which he would not have had to pay but for the malicious prosecution. See Borunda v. Richmond, 885 F.2d 1384, 1389 (9th Cir. 1988). Therefore, the record supported an award of $ 1,310,000 in pecuniary losses, or $ 1.2 million for past and future lost earnings and $ 110,000 for attorneys' fees in Manganiello's criminal defense. Since the jury awarded compensatory damages of $ 1,426,621, it appears that the pain, suffering and wrongful incarceration portion of the award was therefore approximately $ 116,600, which is in line with the awards in the cases cited by Agostini. See, e.g., [*56] Gentile v. County of Suffolk, 926 F.2d 142, 153 (2d Cir. 1991) (affirming award of $ 150,000 for pain and suffering, several days of false imprisonment, psychological trauma, loss of job opportunities and attorneys' fees). See also Papa v. City of New York, 194 A.D.2d 527, 532, 598 N.Y.S.2d 558 (N.Y. App. Div. 1993) (lost earnings calculated to be over $ 3 million in malicious prosecution case).

Here, the award does not shock the conscience, especially in light of the fact that the defendants did not produce any evidence to rebut Dr. Latif's or Dr. Tinari's testimony.

Further, the punitive damages award of $ 75,000 will stand. Punitive damages may be awarded in a Section 1983 action against a police officer in his personal capacity. See Smith v. Wade, 461 U.S. 30, 35, 103 S. Ct. 1625, 75 L. Ed. 2d 632 (1983). Punitive damages may be awarded when the official's "conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others." Id. at 56.

Here, during the first stage of the trial, the jury was instructed that

[i]f you, the jury, should find, from a preponderance of the evidence, that the conduct of a defendant that proximately caused injury or damage [*57] to the plaintiff was maliciously, or wantonly, or oppressively done, then you may, in the exercise of discretion, if you unanimously choose to do so, award such amount as you shall unanimously agree to be proper as punitive damages.

An act or a failure to act is maliciously done if prompted or accompanied by ill will, or spite, or grudge, either toward the injured person individually or toward all persons in any group or category of which the injured person is a member.

An act or a failure to act is wantonly done if done in reckless disregard of, or callous disregard of, or indifference to the rights of another person.

An act or a failure to act is oppressively done if done in a way or manner that injures, or damages, or otherwise violates the rights of another person with unnecessary harshness or severity, as by misuse or abuse of authority or power, or by taking advantage of some weakness, or disability, or misfortune of another person.

(Tr. 794-95.)

Based on these instructions, the jury indicated on its verdict sheet that it unanimously believed that Agostini should be liable for punitive damages. The Court reconvened the jury on August 6, 2008, to hear the parties' oral argument on [*58] punitive damages. Then, the jury was instructed that

[y]ou must decide the amount of punitive damages, if any, unanimously and with calm discretion and sound reason. Punitive damages must never be awarded or fixed in an amount because of sympathy or bias or prejudice with respect to any party to the case. You must consider, first, the degree of reprehensibility and the conduct of the defendant and, secondly, the relationship between the amount of punitive damages and the actual harm inflicted upon Mr. Manganiello.

First, in assessing the reprehensibility of the defendant's conduct you should consider whether the harm caused was physical or economic, whether the defendant's conduct showed an indifference to or a reckless disregard for the health or safety of others, whether the conduct involved repeated action or was an isolated incident, and whether the harm was the result of either intentional malice or deceit or mere accident. You should also presume that the compensatory damages that you have awarded have made Mr. Manganiello whole for his injuries. You should award punitive damages only if the defendant's culpability is so reprehensible as to warrant the imposition of further sanctions [*59] to achieve punishment and deterrence.

Second, the amount of punitive damages that you award must not seem grossly excessive to you when you compare it against the amount of compensatory damages that you have already awarded against the defendant.

(Tr. 856-57.)

The jury was more than adequately instructed on the law pertaining to punitive damages awards in Section 1983 cases. Here, the punitive damage award is not grossly excessive: the jury evidently found Agostini's conduct to be sufficiently reprehensible, and the ratio of punitive damages to the amount of compensatory damages is small. See State Farm Auto. Ins. Co. v. Campbell, 538 U.S. 408, 123 S. Ct. 1513, 1521, 155 L. Ed. 2d 585 (2003).

Finally, the fact that two jurors indicated that they saw a local newspaper article that reported the jury's verdict as to liability and compensatory damages does not convince me that there was a miscarriage of justice. (See Tr. 844.) Although the article indicated that punitive damages could triple the money the City would have to pay Manganiello, there is no evidence that this unduly swayed the jurors, as they assessed a much lower amount of punitive damages. Further, prior to the summations on punitive damages, I asked the jurors [*60] whether they were influenced by the article or whether it would impact their deliberation, and they decidedly shook their heads "no." (Tr. 843-44, 857.) I then instructed the jury, prior to the summations: "I am going to assume and instruct you that if you did see the article that it should in no way interfere or have a role." (Tr. 844.) After the summations, I charged the jury: "I want to emphasize that you are not to consider that article nor any other news or comment you may have heard or read in making your decision today." (Tr. 857.)

Therefore, the punitive damages awarded by the jury will not be disturbed.

IV. MANGANIELLO'S MOTION FOR ATTORNEY'S FEES

Manganiello moves, pursuant to 42 U.S.C. § 1988, for attorney's fees in the amount of $ 215,037.50, based on a total of 587.25 hours spent by his lawyer, Michael Joseph, Esq. ("Joseph"). Joseph's hourly rate is $ 350, and there were in addition $ 9,500 in expert fees.

The Civil Rights Attorneys' Fees Awards Act of 1976 states that a district court "may allow the prevailing party [in a civil rights case] . . . a reasonable attorney's fee as part of the costs." 42 U.S.C. § 1988(b). The "district court retains discretion to determine, under [*61] all the circumstances, what constitutes a 'reasonable' fee." LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 758 (2d Cir. 1998).

Agostini concedes that Manganiello was the prevailing party but disputes particular aspects of Manganiello's request for attorney's fees, such as Joseph's hourly rate, the amount expended with respect to claims against other defendants that were dismissed on summary judgment or at trial and certain entries on Joseph's time sheet.

The Second Circuit adheres to the lodestar approach in determining attorney's fees, in which "the number of hours reasonably expended on the litigation [is] multiplied by a reasonable hourly rate." Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983); see also Gierlinger v. Gleason, 160 F.3d 858, 876 (2d Cir. 1998). "The lodestar should be based on 'prevailing market rates.'" LeBlanc-Sternberg v. Fletcher, 143 F.3d at 764 (citation omitted). The fee applicant bears the burden of documenting the appropriate time expended and hourly rates, and establishing that they are reasonable. See Pascuiti v. New York Yankees, 108 F. Supp. 2d 258, 266 (S.D.N.Y. 2000). Finally, "the district court . . . may look to its own familiarity with the case and its [*62] experience generally as well as to the evidentiary submissions and arguments of the parties." See Gierlinger, 160 F.3d at 876 (quotation marks and citation omitted).

Here, the hourly rate proposed by Joseph is consonant with rates of other attorneys in this district with reasonably comparable skill and experience for similar litigation. Joseph has practiced law in New York since January 2000 and since May 2004 has been the lead partner with respect to civil litigation matters and state criminal matters at his firm, Osorio & Associates. During his career, he has tried and arbitrated approximately thirty-five cases and has handled over a thousand matters. While not all of Joseph's cases have been civil rights in nature, he is correct to point out that his experience in other civil tort cases, as well as his experience in state criminal proceedings, bear upon his expertise in this cause of action for malicious prosecution, a constitutional tort. (See Joseph Decl. PP 8-10.) Last year, Judge Robinson approved an hourly rate of $ 350 for a civil rights litigator in a Section 1983 case. Garcia v. Yonkers Sch. Dist., 499 F. Supp. 2d 421, 426 (S.D.N.Y. 2007). See also Martinez v. Port Auth. of New York & New Jersey, No. 01 Civ. 721, 2005 U.S. Dist. LEXIS 19141, 2005 WL 2143333, at *26 (S.D.N.Y. Sept. 2, 2005) [*63] (approving rates of $ 400 per hour for partner and $ 325 per hour for co-counsel in civil rights case). Pursuant to these precedents and my experience in fee setting, Joseph's hourly rate of $ 350 is reasonable.

The time spent by Joseph was also reasonable, in light of the complexity of the facts, the numerous witnesses involved and the length of the parties' briefs on summary judgment. That a few of his time entries fail to specify, for example, the subject matter of his various correspondences, does not trouble this Court, as the time spent on each item and the nature of the tasks are not unusual for a Section 1983 case of this magnitude.

While "[i]n determining the number of hours reasonably expended for purposes of calculating the lodestar, the district court should exclude ? hours dedicated to severable unsuccessful claims," Quaratino v. Tiffany & Co., 166 F.3d 422, 425 (2d Cir. 1999), the claims that proved unsuccessful here were intertwined with Mangamello's claim against Agostini. For example, several of the defendants who either were dismissed from the case on summary judgment or found [*64] not to be liable by the jury testified at the trial, and their trial testimony undoubtedly played a part in the jury's finding of liability against Agostini. The same factual issues applied to all the original defendants, including the City of New York, and thus it is highly probable that Manganiello would have conducted the same discovery even if his original action had been against Agostini alone.

Finally, the Circuit has held that "[t]he most important factor in determining a reasonable fee for a prevailing plaintiff is 'the degree of success obtained."' LeBlanc-Sternberg, 143 F.3d at 760. Here, even though only Agostini was ultimately found to be liable, Manganiello achieved a high degree of success, for the jury awarded him the full amount of compensatory damages that he sought, as well as a modest amount of punitive damages.

Therefore, Joseph is awarded the full amount of attorney's fees requested.

V. CONCLUSION

For the reasons stated, Agostini's motions pursuant to Fed. R. Civ. P. 50 and 59 for judgment as a matter of law or for a new trial are denied. Manganiello's motion for attorney's fees is granted.

IT IS SO ORDERED.

New York, New York

December 9, 2008

/s/ Harold Baer

Harold Baer

U.S.D.J