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United States District Court Eastern District of New York Case 2:06-cv-04746-JFB-GRB Document 716 Filed 03/03/17 Page 1 of 24 PageID #: <pageID> UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK _____________________ No 06-CV-4746 (JFB)(GRB) _____________________ ANTHONY CONTE, Plaintiff, VERSUS COUNTY OF NASSAU, ET AL., Defendants. ___________________ MEMORANDUM AND ORDER March 3, 2017 ___________________ Joseph F. Bianco, District Judge:1 the evidence at trial and governmental im- munity. Following an unfavorable verdict result- ing from a jury trial on pro se plaintiff An- By Memorandum and Order dated July thony Conte’s claim for tortious interference 26, 2013 (the “July 2013 Order”) (ECF No. with contract, defendants William Wallace, 624), this Court granted the motion on the Robert Emmons, and Michael Falzarano filed statute of limitations ground without address- a Rule 50(b) motion seeking judgment as a ing the remaining five arguments and denied matter of law (“JMOL”). In addition to chal- both parties’ Rule 59 motions for a new trial lenging plaintiff’s claim under the statute of as moot. Plaintiff appealed. The Second Cir- limitations, defendants raised five substan- cuit reversed and remanded on the tortious in- tive arguments regarding the sufficiency of terference claim with instructions “to resolve that claim in further proceedings consistent 1 Plaintiff’s letter motion for recusal dated December introduced or events occurring in the course of judicial 23, 2016 (ECF No. 710) is denied. Plaintiff asserts proceedings do not constitute a basis for recusal unless that this Court is “hopelessly and profoundly biased they indicate that the judge has a deep-seated favorit- toward [him]” based on its previous rulings in this ism or antagonism that would make fair judgment im- case. (Id.) The Supreme Court has stated, however, possible.”). As plaintiff has identified no extrajudicial that “judicial rulings alone almost never constitute a source as the basis for the alleged bias, see Liteky, 510 valid basis for a bias or partiality motion.” Liteky v. U.S. at 554–55, and no such basis exists, his motion United States, 510 U.S. 540, 555 (1994); see also for recusal is denied. United States v. Diaz, 176 F.3d 52, 112 (2d Cir. 1999) (“[O]pinions formed by a judge on the basis of facts 1 Case 2:06-cv-04746-JFB-GRB Document 716 Filed 03/03/17 Page 2 of 24 PageID #: <pageID> with this order.” Conte v. Cnty. of Naussau, Rule 50 motion. Substantive evidence elic- 596 F. App’x 1, 3 (2d Cir. 2014) [hereinafter ited during the trial relevant to specific issues “Conte I”]. will be summarized in the discussion section. On remand, the parties disputed the scope Acting pro se, Conte filed this action of Conte I. Plaintiff argued that the only issue against the County of Nassau, Emmons, Wal- on remand was his Rule 59 motion for a new lace, Falzarano, Philip Wasilausky, Christina trial on damages, while defendants argued Sardo, Tefta Shaska, and Larry Guerra, alleg- that this Court was required to address all the ing federal claims under 42 U.S.C. § 1983 for arguments they made in their Rule 50 motion. false arrest, malicious prosecution, abuse of By Order dated April 2, 2015 (the “April process, violation of the First Amendment, 2015 Order”) (ECF No. 650), this Court conspiracy, and Monell liability against the interpreted Conte I as only requiring it to County. Plaintiff also asserted various state address plaintiff’s Rule 59 motion based on law claims, including claims for false arrest, language in Conte I suggesting that the abuse of process, and tortious interference Second Circuit had determined that the with contractual relations. defendants waived their remaining Rule 50 arguments. Following discovery, plaintiff and all de- fendants filed motions for summary judg- The defendants appealed the April 2015 ment with the Court. In their motion, defend- Order, and the Second Circuit again vacated ants extensively argued that they were enti- and remanded, holding that “it was this tled to absolute immunity and qualified im- Court’s intention that the district court con- munity on plaintiff’s federal claims for false sider, in the first instance, all arguments re- arrest and abuse of process. (Defs.’ Br. Supp. lated to that claim other than the statute of Mot. Sum. J., ECF No. 409 (“Defs.’ Sum. J. limitations claim.” Conte v. Emmons, 647 F. Br.”), at 14–22.) In a single sentence at the App’x 13, 14 (2d Cir. 2016) [hereinafter end of their brief, defendants also raised gov- “Conte II”]. ernmental immunity as a defense to the state law claims against Emmons, Wallace, and After considering the remaining five Falzarano, including the tortious interference grounds defendants raise in their Rule 50 mo- with contract claim. (See id. at 25–26). tion, the Court concludes that defendants are not entitled to JMOL and, therefore, denies After a detailed review of the record and their Rule 50(b) motion. Specifically, the submissions of the parties, the Court issued a Court concludes that (1) defendants waived Memorandum and Order dated September their immunity and sufficiency of the evi- 30, 2010 (the “Summary Judgment Order”) dence arguments by failing to raise them be- (ECF No. 462), granting in part and denying fore the verdict, and (2) no manifest injustice in part defendants’ motion for summary judg- will result from this Court declining to ad- ment and denying plaintiff’s motion for sum- dress these arguments on the merits. mary judgment in its entirety. In that Order, the Court disposed of the defendants’ state I. BACKGROUND law governmental immunity arguments with respect to Emmons, Wallace, and Falzarano, Familiarity with the facts is assumed. As concluding that, under New York law, prose- such, this section will only summarize the cutors are not entitled to governmental im- procedural history relevant to defendants’ munity “when performing an investigation outside the auspices of the grand jury,” and 2 Case 2:06-cv-04746-JFB-GRB Document 716 Filed 03/03/17 Page 3 of 24 PageID #: <pageID> there were factual issues over whether the It was at that point that the following ex- “defendants employed regularly issued legal change occurred: process with a collateral purpose.” (Sum- mary Judgment Order at 40.) This rendered The Court: That is preserved for pur- summary judgment on the state law claims on poses of renewing it at the end of the the grounds of governmental immunity im- case. Do you believe there is insuffi- proper. (Id.) Between summary judgment cient evidence as a whole as well? and the jury’s verdict, defendants did not ex- plicitly raise governmental immunity in con- Mr. Scott: Absolutely. nection with the tortious interference with contract claim. (See, e.g., County Defs.’ Pro- The Court: In your summary judg- posed Portion of Pre-Trial Order, ECF No. ment motion, you moved both on ab- 572 (“Defs.’ Pre-Trial Order”), at 5; County solute immunity [and] qualified im- Defs.’ Proposed Jury Verdict Sheet (“Defs.’ munity. And I assume that that is con- Verdict Sheet”), ECF No. 556, at 4–5.) tinuing as well? Pursuant to the Summary Judgment Or- Mr. Scott: Yes. Thank you, Judge. der, the following claims survived summary (Id.) Counsel did not elaborate on either of judgment: (1) plaintiff’s false arrest claim these arguments, and the Court reserved de- against Wasilausky; (2) plaintiff’s abuse of cision on the Rule 50 motion. (Id. at 908, process claim against all of the County de- 912.) fendants except Sardo; (3) plaintiff’s Monell claim against the County; and (4) plaintiff’s At the end of the trial, the jury found that tortious interference with contract claim (1) Wasilausky subjected plaintiff to an un- against all of the defendants except Sardo and lawful arrest; (2) none of the defendants ma- Shaska. The matter was then tried before a liciously abused process in connection with jury. plaintiff’s arrest on a bad check charge or in connection with the issuance of Grand Jury At the conclusion of plaintiff’s case in subpoenas; and (3) Emmons, Wallace, and chief, defendants orally moved pursuant to Falzarano tortiously interfered with plain- Rule 50(a) for JMOL. (Tr. 902–08). With tiff’s contractual relationships.2 With respect respect to plaintiff’s tortious interference to damages, the jury awarded $500.00 in with contract claim, defense counsel only compensatory damages and $26,000.00 in raised a statute of limitations argument. (See punitive damages against Wasilausky in con- id. at 902–05.) He then spent considerable nection with plaintiff’s false arrest claim. As time discussing plaintiff’s claims for false ar- to plaintiff’s tortious interference with con- rest and abuse of process, neither of which is tract claim, the jury awarded plaintiff at issue here. (See id. at 905–08.) At the con- $3,500.00 in compensatory damages for tor- clusion of his argument on an abuse of pro- tious acts that took place before June 1, 2005, cess issue, counsel remarked that he “did not and $700,000.00 in compensatory damages fully brief that particular issue.” (Id. at 908.) for tortious acts that took place on or after June 1, 2005. The jury also awarded punitive 2 Plaintiff’s Monell claim was dismissed as a matter of law at trial. (See Tr. at 913–16.) 3 Case 2:06-cv-04746-JFB-GRB Document 716 Filed 03/03/17 Page 4 of 24 PageID #: <pageID> damages in connection with plaintiff’s tor- within the limitations period. (July 2013 Or- tious interference with contract claim: der at 34). Because the Court vacated the $60,000.00 against Emmons; $443,000.00 jury’s verdict with respect to the tortious in- against Wallace; and $175,000.00 against terference with contract claim, the Court de- Falzarano.
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