FILED: NEW YORK COUNTY CLERK 08/08/2017 10:01 AM
`FILED: NEW YORK COUNTY CLERK 08m2017 10:01 AM
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`NYSCI
`3F DOC. NO. 183
`NYSCEF DOC. NO. 183
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`INDEX NO. 154808/2013
`INDEX NO~ 154808/2013
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`RaCaIVaD NYSCEF: 08/08/2017
`RECEIVED NYSCEF: 08/08/2017
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`SUPREME COURT OF THE STATE OF NEW YORK
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`NEW YORK COUNTY
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`PRESENT: Hon. Nancy M. Bannon
`Justice
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`PART 4_2_
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`WALID MOHAMED, et al.
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`- v -
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`INDEX NO. 154808/2013
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`MOTION DATE
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`7/12/2017
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`CITY OF NEW YORK, et al.
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`MOTION SEQ. NO.
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`007
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`The following papers were read on this motion to stay the entry ofjudgment and to set aside a jury verdict
`and for judgment as a matter of law or, in the alternative, to set aside the verdict in the interest of justice.
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`Notice of Motionl Order to Show Cause — Affirmation — Affidavit(s) —
`Exhibits — Memorandum of Law-------------------------------------------------------------
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`No(s). —1—
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`Answering Affirmation(s) — Affidavit(s) — Exhibits ----------------------------------
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`No(s).
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`Replying Affirmation — Affidavit(s) — Exhibits -----------------------------------------
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`No(s).
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`2
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`3
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`FORTHEFOLLOWINGREASON(S):
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`MOTION/CASEISRESPECTFULLYREFERREDTOJUSTICE
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`In this action, inter alia, pursuant to 42 USC § 1983 to recover damages for the violation of the
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`infant plaintiff’s constitutional rights, the defendants move pursuant to CPLR 4404(a) to set aside a jury
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`verdict in the plaintiff’s favor and for judgment as a matter of law or, in the alternative, to set aside the
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`verdict in the interest ofjustice or as against the weight of evidence. Alternatively, they seek to reduce,
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`as excessive, the damages awarded to the plaintiff for future emotional distress. The defendants also
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`seek to stay entry of the judgment pending determination of the motion.
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`On December 9, 2016, after a highly contested 20-day jury trial, the jury found that three police
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`officers assaulted, battered, and violated the plaintiff’s Fourth Amendment rights by using excessive
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`force. As relevant here, the jury awarded him the sums of $750,000 in compensatory damages for
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`future emotional distress over 50 years, $10,000 in punitive damages against the defendant Steven
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`Hernandez, and $5,000 in punitive damages against each of the defendants George Santana and
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`Robert Larocco.
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`The court scheduled oral argument in connection with the instant motion for July 5, 2017, which
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`was adjourned, at the defendants’ request, until July 12, 2017. On July 12, all parties appeared, and
`were ready to proceed with argument, but defense counsel requested, for the first time, that the
`argument be transcribed. The court denied the request, and gave counsel the option of arguing the
`motion without transcription, or submitting the motion on papers. Counsel for both parties thereupon
`agreed to submit the motion on papers.
`In the first instance, “a court is not required to grant oral
`argument of a motion, even in the event that a party seeks oral argument." Niagara Venture v Niagara
`Falls Urban Renewal Agency, 56 AD3d 1150, 1150 (4th Dept. 2008); fl 22 NYCRR 202.8(d) (oral
`argument is at the discretion ofjudge); Forest Hills Gardens Corp. v Kamg, 171 Misc. 2d 334 (App
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`INDEX NO. 154808/2013
`FILED: NEW YORK COUNTY CLERK 08/08/2017 10:01 AM
`—EE— INDEX NO~ ”4808/2013
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`NYSCEF DOC. NO. 183
`RaCaIVaD VYSCEF: 08/08/2017
`NYSCEF DOC. NO. 183
`RECEIVED NYSCEF: 08/08/2017
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`Term, 2nd & 11‘h Jud. Dists. 1997); Mingla v City of New York, 2014 NY Slip Op 30162(U), *16 (Sup Ct,
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`N.Y. County, Jan. 15, 2015) (Stallman, J.). Contrary to the defendants’ contention, even where
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`permitted, “[o]ral argument of a motion is not a ‘proceeding[ ] in [a] cause tried or heard’ within the
`meaning of Judiciary Law § 295.” Stevenson v City of Rome, 237 AD2d 946, 946 (4‘h Dept. 1997).
`Hence, no stenographic notes of the argument were required to be made or transcribed. & id; §e_e_
`alio Torres v American Bldg. Maintenance Co. of NY, 51 AD3d 905 (2"" Dept. 2008); Feuer v HASC
`Summer Program, 247 AD2d 429 (2nd Dept. 1998); c_f. People v Koufomichalis, 2 AD3d 987 (3rd Dept.
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`2003) (appearance for assignment of counsel was not a trial proceeding within the meaning of
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`Judiciary Law § 295). Nor is there is any merit to the motion that was submitted.
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`The trial court’s role on a motion pursuant to CPLR 4404(a) is very limited, since deference is
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`owed to the fact-finding powers of a jury, and a trial judge may not substitute his or her own credibility
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`determinations for that of the jury. “A trial court may not interfere with the fact-finding function of a jury
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`simply because it disagrees with the verdict or would have evaluated credibility in a different manner.”
`Rivera v 4064 Realty 00., 17 ADBd 201, 203 (1’5t Dept. 2005)
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`A motion pursuant to CPLR 4404(a) to set aside a jury verdict and for judgment as a matter of
`law may only be granted where there is “simply no valid line of reasoning and permissible inferences
`which could possibly lead rational men [or women] to the conclusion reached by the jury on the basis of
`the evidence presented at trial.” Cohen v Hallmark Cards, 45 NY2d 493, 499 (1978). Here, it cannot
`be said that there was no valid line of reasoning to support the verdict. S_ee_ Cardoza v City of New
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`Yo_rk, 139 AD3d 151 (1“t Dept. 2016). Contrary to the defendants’ contention, the evidence adduced by
`the plaintiff at trial was legally sufficient to overcome any defense based on the allegation that the
`individual defendant police officers were protected by qualified immunity. & Kingsley v Hendrickson,
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`US__, 135 S Ct 2466 (2016); Dancy v McGinley, 843 F3d 93 (2nd Cir. 2016); Rogoz v City of
`Hartford, 796 F3d 236 (2“ Cir. 2015); Garcia v Dutchess County, 43 F Supp 3d 281 (SD NY 2014);
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`Romaine v Rawson, 140 F Supp 2d 204 (ND NY 2001).
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`A CPLR 4404(a) motion to set aside a jury verdict as contrary to the weight of the evidence and
`for a new trial may only be granted where the verdict is “palpably wrong” (Rivera v 4064 Realty 00.,
`supra, at 203) because the “evidence so preponderated in favor” of the movant that the verdict “could
`not have been reached on any fair interpretation of the evidence.” Lolik v Big V Supermarkets, 86
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`NY2d 744, 746 (1995). A fair interpretation of the evidence supports the verdict here.
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`To the extent that the defendants move pursuant to CPLR 4404(a) to set aside the verdict “in
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`the interest ofjustice," such a motion "encompasses errors in the trial court's rulings on the
`admissibility of evidence, mistakes in the charge, misconduct, newly discovered evidence, and
`surprise.” Russo v Levat, 143 ADBd 966, 968 (2"" Dept. 2016). Nonetheless, the interest ofjustice
`does not warrant setting aside the verdict here, since, contrary to the defendants’ contention, the court
`discerns no errors in the admission of evidence and no mistakes in the charge given to the jury.
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`The $750,000 award for future emotional distress, which equals $15,000 per year over a period
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`FILED: NEW YORK COUNTY CLERK 08/08/2017 10:01 AM
`FILED: NEW YORK COUNTY CLERK 08m2017 10:01 AM
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`NYSCEF DOC. NO. 183
`NYSCEF DOC. NO. 183
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`INDEX NO. 154808/2013
`INDEX NO~ 154808/2013
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`R«.C«.IV«.D \IYSCEF: 08/08/2017
`RECEIVED NYSCEF: 08/08/2017
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`of 50 years, does not deviate materially from what is reasonable compensation. S_eg CPLR 5501(0);
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`Rivera v United Parcel Serv.
`Inc, 148 AD3d 574 (1St Dept. 2017); Kinge v State of New York, 79 AD3d
`1473 (3rd Dept. 2010); Papa v City of New York, 194 AD2d 527 (2nd Dept. 1993). Nor do the awards of
`punitive damages here deviate materially from what are reasonable punitive damages awards. 53;
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`Cardoza v City of York, supra.
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`In light of the foregoing, the request to stay entry of the judgment pending determination of this
`motion has been rendered academic, and the court discerns no other basis upon which to grant a stay.
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`The defendants' remaining contentions either are without merit or constitute improper attempts
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`to argue matters that are not the proper subject of a motion pursuant to CPLR 4404(a).
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`Accordingly, it is
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`ORDERED that the defendants’ motion is denied in its entirety.
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`This constitutes the Decision and Order of the court.
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`Dated: @lqll’i
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`'
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`/,
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`,JSC
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`HON. NANCY M. BANNON
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`1. Check one: ...........................U CASE DISPOSED I NON-FINALRISPOSITION
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`2. Check as appropriate: MOTION IS:
`GRANTED I DENIED L OTHER
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