VALERIE CAPRONI, United States District Judge:
Plaintiff George Airday brought this action under 42 U.S.C. § 1983 against the City of New York and Keith Schwam, a former assistant commissioner for the New York City Department of Investigations and former director of the Department's Marshal's Bureau, for a variety of alleged constitutional violations relating to the termination of Plaintiff's tenure as a New York City Marshal. See Dkt. 34 (Am. Compl.). Following Judge Sweet's resolution of a motion to dismiss and a motion for summary judgment, see Dkts. 31, 92, and after the case's reassignment to the undersigned, only two of Plaintiff's claims remained: one for deprivation of property without due process of law in violation of the Fourteenth Amendment's Due Process Clause, and the other for selective enforcement in violation of the Fourteenth Amendment's Equal Protection Clause. See Dkt. 92 (Order & Op. on MSJ) at 46-68. The Court assumes familiarity with the facts and history of this case but recounts details pertinent to these motions.
The Court separated Plaintiff's claims for trial under Fed. R. Civ. P. 42(b), see Dkt. 132, and, beginning on May 6, 2019, Plaintiff's due-process claim was tried to a jury. The jury returned a verdict on May 10, 2019, finding (1) that Plaintiff had proven that he had a constitutionally protected property right
Both sides have made post-trial motions. Defendants have renewed their mid-trial motion for judgment as a matter of law, arguing that, as a matter of law: (a) Plaintiff failed to prove the existence of an implied contract with the City of New York; (b) any such contract would be barred by New York's statute of frauds; (c) Plaintiff failed to prove the City's liability under Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); and (d) Plaintiff's due-process claim fails because Plaintiff could have brought a proceeding under Article 78 of the New York Civil Practice Law and Rules. See Dkts. 174-76. Plaintiff has also renewed his own mid-trial motion for judgment as a matter of law, arguing that, as a matter of law: (a) Defendant Schwam deprived him of his property right; and (b) he is entitled to compensatory damages. See Dkts. 169-70. Plaintiff further requests an order reinstating him to his position as a New York City Marshal and a new trial to determine the amount of his compensatory damages. See Dkt. 170 (Mem. in Supp. of Pl.'s Post-Trial Mots.) at 1-2. In the alternative to judgment as a matter of law, Plaintiff requests a new trial on Defendant Schwam's liability. Id. at 2.
For the following reasons, Defendants' renewed motion for judgment as a matter of law is GRANTED, and Plaintiff's motions are DENIED.
Fed. R. Civ. P. 50(b) permits a court to set aside a jury verdict and "direct the entry of judgment as a matter of law" in a movant's favor where, "viewed in the light most favorable to the nonmoving party, `the evidence is such that, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, there can be but one conclusion as to the verdict that reasonable persons could have reached.'" Lewis v. Am. Sugar Refining, Inc., 325 F.Supp.3d 321, 347-48 (S.D.N.Y. 2018) (brackets omitted) (quoting Samuels v. Air Transp. Local 504, 992 F.2d 12, 13 (2d Cir. 1993)). A Rule 50(b) motion can be granted "only when 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 ... such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded jurors could not arrive at a verdict against him." Id. (brackets omitted) (quoting Mattivi v. S. African Marine Corp., 618 F.2d 163, 168 (2d Cir. 1980)). "The court will credit evidence favorable to the moving party `that is uncontradicted and unimpeached,'" but it must "`disregard' evidence that the jury is not required to believe, but which is favorable to the moving
Fed. R. Civ. P. 59(a)(1) permits a Court to "grant a new trial on all or some of the issues" to any party. Unlike a Rule 50 motion for judgment as a matter of law, "a new trial may be granted even if there is substantial evidence supporting the jury's verdict." Lewis, 325 F. Supp. 3d at 332 (quoting DLC Mgmt. Corp. v. Town of Hyde Park, 163 F.3d 124, 134 (2d Cir. 1998)). "Although the trial judge possesses large authority to grant or deny Rule 59(a) motions, ... the `court ordinarily should not grant a new trial unless it is convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice.'" Id. at 332-33 (some internal quotation marks omitted) (quoting Smith v. Lightning Bolt Prods., Inc., 861 F.2d 363, 370 (2d Cir. 1988)).
To prevail on a Section 1983 claim for deprivation of property without due process, a plaintiff must prove that he had "a property interest, created by state law, in the employment or the benefit that was removed." Bernheim v. Litt, 79 F.3d 318, 322 (2d Cir. 1996); see also, e.g., White Plains Towing Corp. v. Patterson, 991 F.2d 1049, 1061-62 (2d Cir. 1993) ("In order to succeed on a claim of deprivation of procedural due process, a plaintiff must establish that state action deprived him of a protected property or liberty interest."). In "determining which interests are afforded... protection" under the Fourteenth Amendment's Due Process Clause, "a court must look to whether the interest involved would be protected under state law." Ezekwo v. N.Y.C. Health & Hosps. Corp., 940 F.2d 775, 783 (2d Cir. 1991). If it would not be protected under state law, then the plaintiff's due-process claim fails as a matter of law. Perry v. Sindermann, 408 U.S. 593, 602 n.7, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972).
In denying summary judgment on Plaintiff's due-process claim, Judge Sweet held—and this Court proceeded to trial on the basis—that "a factual issue exist[ed] as to whether an implied contract" between Plaintiff and the City of New York "was created as a result of the past practices of holding over City Marshals for reappointment following the expiration of their statutory term." Dkt. 92 at 53. It was Plaintiff's burden, therefore, to prove at trial that he had an implied contract with the City of New York and that one of the terms of that contract was that he would remain in his office after his term expired in December 2013, either in holdover status or as a formally reappointed marshal.
Although the jury found that Plaintiff had proven the existence of such an implied contract, it is apparent that there was no legally sufficient basis for the jury to find for Plaintiff on that issue, Fed. R. Civ. P. 50(a)(1), and that the jury's finding "could only have been the result of sheer surmise and conjecture," Lewis, 325 F. Supp. 3d at 347-48; see also id. at 348 ("The standard of review is the same whether the motion for judgment as a matter of law is submitted prior to the verdict being issued [under Rule 50(a)(1)], or post-trial [under Rule 50(b)].").
To make a long story short, Plaintiff failed to marshal any evidence that any official with whom he allegedly contracted was authorized by New York State or City law to bind the City to an implied contract. Beyond the ordinary common-law elements of an implied contract, New York law "impose[s] additional requirements on municipal contracting `to protect the public from corrupt or ill-considered actions by municipal officials.'" NRP Holdings LLC v. City of Buffalo, 916 F.3d 177, 200 (2d Cir. 2019) (brackets omitted) (quoting Henry Modell & Co. v. N.Y.C., 159 A.D.2d 354, 552 N.Y.S.2d 632, 634 (App. Div. 1st Dep't 1990)). "Municipal contracts which violate express statutory provisions are invalid" and unenforceable, "even if the purported contracts bear the hallmarks of mutual assent." Id. (internal quotation marks omitted); see also, e.g., Casa Wales Hous. Dev. Fund Corp. v. N.Y.C., 129 A.D.3d 451, 11 N.Y.S.3d 31, 32 (App. Div. 1st Dep't 2015) ("It is well settled that where there is a lack of authority on the part of agents of a municipal corporation to create a liability, except by compliance with well-established regulations, no liability can result unless the prescribed procedure is complied with and followed.... The courts of this state have long held that no implied contract to pay for benefits furnished by a person under an agreement which is invalid because it fails to comply with statutory restrictions and inhibitions can create an obligation or liability of the city." (citations omitted)). This principle extends to purported contracts that fail to comply with city charters, see NRP, 916 F.3d at 200; Casa, 129 A.D.3d 451, 11 N.Y.S.3d at 32, as well as to implied contracts, see, e.g., Parsa v. State of New York, 64 N.Y.2d 143, 485 N.Y.S.2d 27, 474 N.E.2d 235, 237 (1984) (holding that "a contract implied in fact" is "a true contract based upon an implied promise" and therefore is subject to statutes governing governmental liability on contracts); Infrastructure Mgmt. Sys. v. Cty. of Nassau, 2 A.D.3d 784, 770 N.Y.S.2d 119, 121 (App. Div. 2d Dep't 2003) ("Where a statute or local law provides that a contract may be made only by specified officers or boards and in specified manner, no implied contract to pay for benefits furnished by a person under an agreement which is invalid because it fails to comply with statutory restrictions and inhibitions can create an obligation or liability of the municipality.") (brackets omitted) (citing Seif v. City of Long Beach, 286 N.Y. 382, 36 N.E.2d 630, 632 (1941)). "[I]n contracting with a municipality, a party is chargeable with knowledge of the statutes which regulate [the municipality's] contracting powers and is bound by them," and "it is solely at his peril that [he] presumes that the persons with whom he is dealing are acting within the scope of their authority and, since the extent of that authority is a matter of public record, there is a conclusive presumption that he is aware of it." Walentas v. N.Y.C. Dep't of Ports, 167 A.D.2d 211, 561 N.Y.S.2d 718, 719 (App. Div. 1st Dep't 1990 (citations omitted)); see also Garrison Protective Servs, Inc. v. Office of Comptroller, 92 N.Y.2d 732, 685 N.Y.S.2d 921, 708 N.E.2d 994, 997 (1999) ("This Court
As a matter of law, no New York City official could have bound the City to any implied contract with Plaintiff, and certainly not through "[f]orty years of practices and an established and consistent course of dealings," as Plaintiff contends, Dkt. 180 (Mem. in Opp. to Defs.' Post-Trial Mot.) at 4. The New York City Charter requires that "all contracts" entered into by the City be "approve[d] as to form" by the City's corporation counsel. N.Y.C. Charter § 394(b). It further provides that "[n]o contract or agreement executed pursuant to this charter or other law shall be implemented until," among other requirements, "a copy has been filed with the comptroller." Id. § 328(a). Any contract not approved consistent with these procedures is unenforceable as a matter of state law. JFK Holding Co. v. N.Y.C., 68 A.D.3d 477, 891 N.Y.S.2d 32, 33-34 (App. Div. 1st Dep't 2009) ("[E]ven if such agreement had been made it would have been invalid and unenforceable since, pursuant to N.Y. City Charter §§ 394(b) and 328(a), any enforceable agreement with the City must be in writing, approved as to form by the Corporation Counsel, and registered with the Comptroller."). At trial, Plaintiff failed to introduce any evidence that any agreement between him and the City of New York regarding any right to continue in his office after the expiration of his term was ever approved by the City's corporation counsel or filed with the City's comptroller. And it was his burden to do so. See, e.g., Henry Modell & Co., 552 N.Y.S.2d at 634 (placing burden on plaintiff to plead and prove that contract with City of New York was authorized consistent with City Charter and Administrative Code). Given this evidentiary failure, no reasonable jury could have had "a legally sufficient basis to find for [Plaintiff] on th[is] issue," Fed. R. Civ. P. 50(a)(1): any implied contract between him and the City of New York was unenforceable as a matter of state law and therefore was not a property interest protected by the Fourteenth Amendment's Due Process Clause. See Perry, 408 U.S. at 602 n.7, 92 S.Ct. 2694; Ezekwo, 940 F.2d at 782; A.F.C. Enters. v. N.Y.C. Sch. Constr. Auth., No. 98-CV-4534, 1999 WL 1417210, at *8-9 (E.D.N.Y. June 29, 1999) (holding that general contractor could not "show a protected property interest" in New York City construction contracts "[b]ecause these contracts were not registered and not binding upon the city" and thus were unenforceable under state law); see also, e.g., NRP, 916 F.3d at 200 ("Even though a promise . . . may be spelled out from the parties' conduct, a contract between them may not be implied to provide `rough justice' and fasten liability on the [City] when applicable statutes expressly prohibit it." (quoting Parsa, 485 N.Y.S.2d 27,474 N.E.2d at 237)).
For these reasons, Defendants' renewed motion for judgment as a matter of law is granted; the Court enters judgment as a matter of law in the City's favor on Plaintiff's due-process claim. And because the Court has entered judgment in the City's favor on other grounds, it need not address Defendants' arguments that Plaintiff failed to prove that any purported implied contract was supported by consideration; that any such contract would be barred as a matter of law by New York's statute of frauds or New York Public Officers Law § 5; that Plaintiff failed to prove the City's liability under Monell, 436 U.S. 658, 98 S.Ct. 2018; and that Plaintiff's due-process claim fails as a matter of law because Plaintiff could have brought a proceeding under Article 78.
Because the Court has granted judgment as a matter of law to the City on the issue of whether Plaintiff had a due-process-protected property right to continue in his office after his term expired, Plaintiffs' post-trial motions are moot and are denied on that basis. To supply the parties with as complete a record as possible for appeal, however, the Court makes several observations regarding Plaintiff's motions.
Even if the Court had not granted Defendants' renewed motion for judgment as a matter of law, and even if its election to do so is later vacated or reversed, several insuperable defects would bar the Court from granting Plaintiff's motion for a judgment as a matter of law that Defendant Schwam deprived Plaintiff of a protected property right without due process. See Dkt. 170 (Mem. in Supp. of Pl.'s Post-Trial Mots.) at 9-11.
First, the Court is not persuaded that Plaintiff introduced any evidence upon which the jury could reasonably have found Defendant Schwam liable for any due-process violation, let alone that Plaintiff introduced such overwhelming evidence favoring liability that he is entitled to judgment as a matter of law on that issue. Accepting that Defendant Schwam wanted Plaintiff terminated, even Plaintiff acknowledges that it was then-Mayor Mike Bloomberg—not Defendant Schwam—who undertook the purportedly property-depriving act in this case: Mayor Bloomberg "signed the letter that reassigned [Plaintiff's] office and badge to another person," thereby terminating Plaintiff from his office. See Dkt. 170 (Mem. in Supp. of Pl.'s Post-Trial Mots.) at 9. Furthermore, as Plaintiff puts it, "Schwam did not discuss the subject of [Plaintiff's] removal or replacement with Mayor Bloomberg, with the Mayor's Committee, or with the DOI Commissioner . . . and he had no knowledge about whether his sole contact at the Mayor's Office, John Baxter, was involved in the decision to reassign [Plaintiff's] badge." Id. at 10. Given these facts, it was wholly reasonable for the jury to conclude that Defendant Schwam was not personally involved in the alleged constitutional violation at issue: although there was undoubtedly evidence that Defendant Schwam believed Plaintiff was not fit to be a City Marshal and therefore wanted him out of his position and that Schwam took steps toward facilitating an end to Plaintiff's tenure, there was absolutely no evidence—and certainly no incontrovertible evidence—that Schwam's conduct had any effect or influence on Mayor Bloomberg's decision to reassign Plaintiff's badge. And that was the municipal decision that (a) deprived Plaintiff of his alleged property right and (b) supplies the basis for Monell liability in this case.
In light of Plaintiff's admissions that Mayor Bloomberg "signed the letter that reassigned [Plaintiff's] office and badge to another person"; that Defendant "Schwam did not discuss the subject of [Plaintiff's] removal or replacement with Mayor Bloomberg, with the Mayor's Committee, or with the DOI Commissioner"; and that Schwam "had no knowledge about whether his sole contact at the Mayor's Office, John Baxter, was involved in the decision to reassign [Plaintiff's] badge," Dkt. 170 (Mem. in Supp. of Pl.'s Post-Trial Mots.) at 9-10, the Court is inclined to conclude that the jury could only reasonably have found that Schwam was either speculating or factually incorrect when he said at trial that he "made sure" that Plaintiff's badge was reassigned, id. at 10 (quoting Schwam's trial testimony). There is no evidence in the record that Schwam's machinations (such as they were) had any influence on Mayor Bloomberg's decision to terminate Plaintiff's office, and any finding that they did would have required rank speculation on the jury's part.
Finally, even were the Court inclined to conclude as a matter of law that Defendant Schwam violated Plaintiff's due-process rights, it would not grant judgment against Schwam because he would have qualified immunity. Qualified immunity shields a government official from money damages when his conduct did "not violate clearly established statutory or constitutional
Even if the Court had not granted Defendants' renewed motion for judgment as a matter of law, the Court would not grant Plaintiff's motion for a judgment that he is entitled to compensatory damages as a matter of law. See Dkt. 170 (Mem. in Supp. of Pl.'s Post-Trial Mots.) at 11-16.
As an initial matter, the Court rejects Plaintiff's renewed argument that he did not bear the burden of proving his entitlement to compensatory damages. See Dkt. 170 (Mem. in Supp. of Pl.'s Post-Trial Mots.) at 12. The cases supporting the Court's view and contradicting Plaintiff's from and within the Second Circuit are legion. See, e.g., Kassim v. City of Schenectady, 415 F.3d 246, 250 (2d Cir. 2005) ("Having shown no harm or loss attributable to the failure to give him a pre-deprivation hearing, [plaintiff] has shown no reason why the court's restriction on compensatory damages deprived him of any entitlement.").
Spinelli v. City of New York, 579 F.3d 160, 175 (2d Cir. 2009), and Ezekwo, 940 F.2d at 786, are not to the contrary. In both cases, the Second Circuit held that a Section 1983 plaintiff had proven a due-process violation as a matter of law and remanded the case with instructions to determine compensatory damages. Spinelli, 579 F.3d at 175; Ezekwo, 940 F.2d at 786. In neither case, however, did the court cite, let alone examine, other Second Circuit precedent squarely holding that the plaintiff bears the burden of proving "that the property or liberty deprivation for which he sought compensation would not have occurred had proper procedure been observed," Patterson, 370 F.3d at 338. And in neither case was there a reason to do so. In Spinelli, by the time the plaintiff had filed her Section 1983 lawsuit, the City of New York had given her the process she was due and had restored her license to operate a gun store—conclusively demonstrating that, had she been given pre-deprivation process, the license would not have been taken in the first place. See 579 F.3d at 165. And in Ezekwo, it appears that the court was persuaded that the plaintiff had, in fact, demonstrated that she would have been made chief resident had she been given notice and a bona fide opportunity to be heard: although not explicit, the court of appeals expressed deep skepticism of the district court's finding that the decision to deny the plaintiff the chief resident position was genuinely motivated by academic or interpersonal concerns rather than sexism, see 940 F.2d at 784, suggesting that, in the Circuit's view,
The governing legal principle having been established, it follows that Plaintiff is not entitled to a judgment that he is entitled to compensatory damages as a matter of law. Plaintiff introduced no evidence, let alone conclusive evidence, that Mayor Bloomberg—the person who reassigned Plaintiff's badge and thereby removed him from office—would not have done so had Plaintiff first been given notice and an opportunity to be heard. Indeed, the jury did not even hear evidence that Mayor Bloomberg would have reached a different conclusion had Defendant Schwam not contacted John Baxter about Plaintiff: as Plaintiff acknowledges, Mayor Bloomberg "signed the letter that reassigned [Plaintiff's] office and badge to another person"; Defendant "Schwam did not discuss the subject of [Plaintiff's] removal or replacement with Mayor Bloomberg, with the Mayor's Committee, or with the DOI Commissioner"; and Schwam "had no knowledge about whether his sole contact at the Mayor's Office, John Baxter, was involved in the decision to reassign [Plaintiff's] badge," Dkt. 170 (Mem. in Supp. of Pl.'s Post-Trial Mots.) at 9-10. Judgment as a matter of law as to entitlement to compensatory damages would, therefore, be inappropriate even if the Court's grant of judgment to the City is reversed. And because the Court is not convinced that the verdict on this point was seriously erroneous or a miscarriage of justice, Lewis, 325 F. Supp. 3d at 332-33, granting Plaintiff's alternative motion for a new trial on this issue would not be appropriate. See Dkt. 170 (Mem. in Supp. of Pl.'s Post-Trial Mots.) at 16.
Finally, the Court must reject Plaintiff's peculiar analogy to Patterson v. Coughlin, 905 F.2d 564, 568-70 (2d Cir. 1990), in which the Second Circuit affirmed that a plaintiff ordinarily bears the burden of proving entitlement to compensatory damages but held that the burden had shifted to the defendant prison officials because, by barring the plaintiff from calling witnesses at his administrative trial and claiming ignorance of the identities and whereabouts of the inmate witnesses that
For all these reasons, the Court would deny Plaintiff's post-trial motions even if its grant of judgment as a matter of law to the City of New York is reversed.
For the foregoing reasons, Plaintiff's post-trial motions are DENIED, and Defendants' renewed motion for judgment as a matter of law is GRANTED. Judgment as a matter of law is granted to Defendant the City of New York on Plaintiff's due-process claim.
The parties must appear for a conference on
The Court reminds the parties that it is happy to refer them to mediation or to Magistrate Judge Parker for settlement discussions upon a joint request.
Pursuant to Fed. R. Civ. P. 54(b), no judgment shall issue until further order of this Court.
The Court notes that when asked directly by the Court, Plaintiff could not identify any case in which a court has found a Fourteenth Amendment Due Process Clause-protected property interest that sprung from a source other than state positive or common law. See Dkt. 158 (5/7/19 tr.) at 273-77. (As the Court explained, see id., Ezekwo was not such a case: it held, as a matter of law, that the parties, through their conduct, had entered into a contract that "would be protected under state law." Ezekwo, 940 F.2d at 783.)
In this vein, the Court notes that there was no evidence at trial that any of the authorities that Plaintiff identifies in his opposition to Defendants' motions, see Dkt. 180 (Mem. in Opp. to Defs.' Post-Trial Br.) at 4, 11, permitted any City official to enter into a contract binding on the City without complying with the City Charter.
Furthermore, contrary to Plaintiff's contention at trial, see Dkt. 161 (5/8/19 tr.) at 406, an officer's entitlement to qualified immunity may be evaluated at any stage of the proceeding, including during and after trial. See, e.g., Ortiz v. Jordan, 562 U.S. 180, 184, 131 S.Ct. 884, 178 L.Ed.2d 703 (2011) ("A qualified immunity defense, of course, does not vanish when a district court declines to rule on the plea summarily. The plea remains available to the defending officials at trial; but at that stage, the defense must be evaluated in light of the character and quality of the evidence received in court.").
The Court rejects Plaintiff's contention that the Second Circuit's admonition in Miner that "the burden is normally on the plaintiff to prove each element of a § 1983 claim, including those elements relating to damages," 999 F.2d at 660, is "dicta." See Dkt. 170 (Mem. in Supp. of Pl.'s Post-Trial Mots.) at 14-16. In that case, the court affirmed the district court's award of lost wages and pension benefits to the plaintiff precisely because he had satisfied his burden of proving his entitlement to compensatory damages, id., meaning that the court's articulation of the burden was very much ratio decidendi, not obiter dictum. In any event, neither Plaintiff's characterization of Miner's language nor his efforts to distinguish that case on its facts, see Dkt. 170 (Mem. in Supp. of Pl.'s Post-Trial Mots.) at 15-16, gets him past the raft of other authorities confirming that Plaintiff bore the burden of proving "that the property or liberty deprivation for which he sought compensation would not have occurred had proper procedure been observed," Patterson, 370 F.3d at 338.
