CROCKETT v. CITY OF NEW YORK 2957 1211 13662 ID 901687 (2018)

SUMMARY ORDER

James and Teresa Crockett appeal from the April 24, 2017 judgment of the United States District Court for the Eastern District of New York (Chen, J.) denying their motion for a new trial pursuant to Federal Rule of Civil Procedure 59(a). We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review.

The Crocketts brought suit pursuant to 42 U.S.C. § 1983 alleging that New York City Police Officers Raul A. Perez, Matthew J. Ambrosino and Steve Bhagan, along with New York Police Lieutenant Greacia Heardsman, used excessive force against James Crockett (“Crockett”), falsely arrested him and subjected him to malicious abuse of process. Following a six-day trial, a jury returned a verdict in favor of defendants on all counts. The Crocketts then moved for a new trial pursuant to Fed. R. Civ. P. 59(a)(1) on two grounds: that the verdict was against the weight of the evidence, and that statements made by defense counsel during summation were so improper as to taint the verdict. The district court denied the motion. Crockett v. City of New York, 2017 WL 1437333 (E.D.N.Y. April 21, 2017).

This Court reviews the denial of a motion for a new trial based on attorney misconduct for abuse of discretion where counsel timely objected, and for plain error where counsel did not. Marcic v. Reinauer Transp. Cos., 397 F.3d 120, 124 (2d Cir. 2005). Determining if counsel’s conduct was so improper as to warrant a new trial is committed to the sound discretion of the trial judge. Patterson v. Balsamico, 440 F.3d 104, 119 (2d Cir. 2006) (citation omitted). The district court’s denial of the Rule 59 motion on the ground that the verdict was against the weight of the evidence is not reviewable on appeal. See Stonewall Ins. Co. v. Asbestos Claims Mgmnt. Corp., 73 F.3d 1178, 1199 (2d Cir. 1995). We address only the issue of whether the district court exceeded the bounds of its discretion in finding the challenged attorney conduct here did not necessitate a new trial.

Prejudicial misconduct by counsel is a ground for a district court to grant a new trial pursuant to Rule 59. See Pappas v. Middle Earth Condo. Ass’n, 963 F.2d 534, 540 (2d Cir. 1992). However, “not all misconduct of counsel taints a verdict to such a degree as to warrant a new trial.” Id. Indeed, “[r]arely will an attorney’s conduct so infect a trial with undue prejudice or passion as to require reversal.” Marcic, 397 F.3d at 124 (quoting Reilly v. Natwest Markets Group, Inc., 181 F.3d 253, 271 (2d Cir. 1999) ). “Not every improper or poorly supported remark made in summation irreparably taints the proceedings; only if counsel’s conduct created undue prejudice or passion which played upon the sympathy of the jury, should a new trial be granted.” Matthews v. CTI Container Transp. Int’l, Inc., 871 F.2d 270, 278 (2d Cir. 1989).

The conduct complained of here simply does not rise to the level that requires a new trial. Defense counsel’s concededly improper remarks regarding a meeting in the hallway between a plaintiff’s witness, counsel and translator were immediately objected to, the objection was sustained, and the remarks promptly addressed by the district court with a curative instruction. See Patterson, 440 F.3d at 119 (district court’s curative instruction sufficient, new trial not warranted). The remaining remarks regarding the credibility of two of plaintiff’s witnesses, which were unobjected to, are simply not provocative enough on plain error review to warrant undoing the trial verdict. “Use of the words ‘liar’ and ‘lie’ to characterize disputed testimony when the witness’s credibility is clearly in issue is ordinarily not improper unless such use is excessive or is likely to be inflammatory.” United States v. Coriaty, 300 F.3d 244, 255 (2d Cir. 2002) quoting United States v. Peterson, 808 F.2d 969, 977 (2d Cir. 1987). The district court did not abuse its discretion in denying Crockett’s motion for a new trial.

We have considered the remainder of the Crocketts’ arguments and find them to be without merit. Accordingly, the judgment of the district court hereby is AFFIRMED. Each side to bear its own costs.