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Supreme Court, Appellate Division, Fourth Department, New York.

Dawn CALHOUN, Plaintiff–Appellant, v. COUNTY OF HERKIMER, Herkimer County Department of Social Services, Herkimer County Office of Employment and Training Administration, Karin Zipko, in Her Individual and Official Capacity, Jeff Whittemore, in His Individual and Official Capacity, Steven Billings, in His Individual and Official Capacity, Defendants–Respondents, et al., Defendants. (Appeal No. 1.)


Decided: February 08, 2019



It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiff was employed on a contract basis in an administrative office of defendant County of Herkimer (County) under the supervision of defendant Steven Billings. Billings's wife, a special education teacher, had been assigned to work with plaintiff's son, who had been classified as learning disabled. Over the course of several months, plaintiff had expressed dissatisfaction with the special education services provided to her son by the school district generally and Billings's wife in particular. After plaintiff was informed by Billings that her employment contract would not be renewed due to impending federal funding cuts and she was told that she was not eligible for reinstatement in a different position, she commenced this action alleging, inter alia, that defendants subjected her to unlawful retaliation based upon her advocacy on behalf of her son. Plaintiff appeals in appeal No. 1 from an order denying her posttrial motion pursuant to CPLR 4404(a) seeking to set aside the jury verdict in favor of defendants and a new trial. Plaintiff appeals in appeal No. 2 from an order granting the motion of defendant Jeff Whittemore, the personnel director for the County, seeking attorneys' fees as a prevailing party.

Addressing first the order in appeal No. 1, plaintiff contends that Supreme Court improperly denied her motion as defective for failure to submit the trial transcript in support of the motion. We are unable to determine on this record whether the court denied the motion on that ground inasmuch as the court did not set forth its reasoning in writing and, although oral argument was conducted on the motion after which the court purportedly rendered a decision, there is no transcript of those proceedings in the record (see generally Onewest Bank, FSB v. Spencer, 145 A.D.3d 1488, 1488, 44 N.Y.S.3d 640 [4th Dept. 2016]; McMillian v. Burden, 136 A.D.3d 1342, 1343, 24 N.Y.S.3d 822 [4th Dept. 2016]; Corina v. Boys & Girls Club of Schenectady, Inc., 82 A.D.3d 1477, 1477, 919 N.Y.S.2d 553 n. [3d Dept. 2011] ). In any event, inasmuch as “[t]he case did not involve complex legal or factual issues, the trial was brief and the same judge that presided over the trial determined [the] motion,” we conclude that the absence of a trial transcript did not preclude meaningful review of the motion and, thus, the motion was not defective (Johnstone v. First Class Mgt. of N.Y., LLC, 138 A.D.3d 1222, 1223, 30 N.Y.S.3d 358 [3d Dept. 2016]; see McPherson v. City of New York, 122 A.D.3d 809, 810, 997 N.Y.S.2d 158 [2d Dept. 2014]; cf. Frank v. City of New York, 161 A.D.3d 713, 713, 74 N.Y.S.3d 492 [1st Dept. 2018] ).

Plaintiff asserts that, pursuant to CPLR 4404(a), she is entitled to a new trial in the interest of justice on several grounds. Contrary to plaintiff's contention, she is not entitled to a new trial on the ground that defendants' counsel improperly referenced certain prejudicial information during cross-examination of her. We conclude that the curative instruction given by the court immediately after the reference was “sufficient to neutralize the prejudicial effect of the error” (Dennis v. Capital Dist. Transp. Auth., 274 A.D.2d 802, 803, 711 N.Y.S.2d 836 [3d Dept. 2000]; see Country Park Child Care, Inc. v. Smartdesign Architecture PLLC, 129 A.D.3d 1636, 1637, 12 N.Y.S.3d 706 [4th Dept. 2015]; Murdoch v. Niagara Falls Bridge Commn., 81 A.D.3d 1456, 1457, 917 N.Y.S.2d 501 [4th Dept. 2011], lv denied 17 N.Y.3d 702, 929 N.Y.S.2d 93, 952 N.E.2d 1088 [2011] ).

We reject plaintiff's contention that a new trial is warranted because the court erred in ruling that Billings's wife could not be questioned about the substance of her conversations with Billings. Confidential communications between spouses are generally privileged inasmuch as one spouse “shall not be required, or, without consent of the other if living, allowed, to disclose a confidential communication made by one to the other during marriage” (CPLR 4502[b] ). “The [spousal] privilege falls ․ when the substance of a communication, and not the mere fact of its occurrence, is revealed to third parties” (Matter of Vanderbilt [Rosner–Hickey], 57 N.Y.2d 66, 74, 453 N.Y.S.2d 662, 439 N.E.2d 378 [1982] ). Here, contrary to plaintiff's contention, the spousal privilege was not waived because the testimony and affidavits of Billings's wife did not reveal the substance of any confidential communication to third parties (see id.; cf. People v. Weeks, 15 A.D.3d 845, 846, 789 N.Y.S.2d 373 [4th Dept. 2005], lv denied 4 N.Y.3d 892, 798 N.Y.S.2d 737, 831 N.E.2d 982 [2005] ).

Plaintiff further contends that she is entitled to a new trial because defendants' production of several of Billings's emails and related documents about federal funding on the first day of trial constituted an unfair surprise and was prejudicial. We reject that contention. Inasmuch as plaintiff was aware from the moment of her termination and throughout the lengthy pretrial litigation that defendants' position was that her contract was not renewed due to impending federal funding cuts, the record demonstrates that plaintiff anticipated that defendants' defense to her action would be that such reduction in budget, not retaliation, was the basis for the termination. She therefore cannot claim surprise that defendants sought to introduce documentary evidence supporting that defense (see Ruzycki v. Baker, 9 A.D.3d 854, 855, 780 N.Y.S.2d 253 [4th Dept. 2004]; Stafford v. Molinoff, 228 A.D.2d 662, 663, 645 N.Y.S.2d 313 [2d Dept. 1996]; cf. Hannon v. Dunkirk Motor Inn, 167 A.D.2d 834, 834–835, 562 N.Y.S.2d 248 [4th Dept. 1990] ). In addition, although the documents were not produced until the first day of trial, they were not received in evidence until Billings testified on behalf of defendants several days later. Thus, the record does not establish that plaintiff was prejudiced by defendants' delayed disclosure inasmuch as plaintiff's attorney had several days to review the documents and sufficient notice to prepare for cross-examination of Billings (see Ruzycki, 9 A.D.3d at 855, 780 N.Y.S.2d 253).

Plaintiff also contends that she is entitled to a new trial because the court erred in failing to provide the expansive jury charge initially proposed by plaintiff's attorney regarding the County's corporate knowledge of plaintiff's protected activity. Plaintiff failed to preserve that contention for our review inasmuch as her attorney, following a charge conference, acquiesced to the court providing a single sentence from the proposed charge, and plaintiff's attorney did not object to the charge after the court instructed the jury (see Lucas v. Weiner, 99 A.D.3d 1202, 1202, 952 N.Y.S.2d 863 [4th Dept. 2012] ).

By failing to timely object, plaintiff also failed to preserve for our review her contention that the number of jurors who agreed to the verdict as reported on the verdict sheet was inconsistent with the number of jurors who agreed to the verdict when polled (see Cornell Univ. v. Gordon, 76 A.D.3d 452, 453, 906 N.Y.S.2d 244 [1st Dept. 2010];see also CPLR 4113[a] ). Additionally, because plaintiff appealed in appeal No. 1 from only the order denying her posttrial motion pursuant to CPLR 4404, and she did not raise on that motion her further contention that the jury rendered an inconsistent verdict, that contention is not properly before us on this appeal (see Topczij v. Clark, 28 A.D.3d 1139, 1140, 814 N.Y.S.2d 425 [4th Dept. 2006]; see also Meldrim v. Hill, 260 A.D.2d 836, 837 n. 1, 688 N.Y.S.2d 741 [3d Dept. 1999] ).

Additionally, we conclude that plaintiff failed to preserve for our review her contention that the verdict is against the weight of the evidence inasmuch as she did not raise that issue in her posttrial motion (see Nitzke v. Loveland, 188 A.D.2d 1058, 1059, 592 N.Y.S.2d 165 [4th Dept. 1992] ). In any event, the evidence did not so preponderate in favor of plaintiff that the verdict “could not have been reached on any fair interpretation of the evidence” (Harris v. Stoelzel, 96 A.D.3d 1459, 1460, 945 N.Y.S.2d 910 [4th Dept. 2012] [internal quotation marks omitted] ).

In appeal No. 2, plaintiff contends that the court erred in granting Whittemore's motion for attorneys' fees. We agree. The court granted the motion on the basis of 42 USC § 1988, which authorizes the award of attorneys' fees to a prevailing defendant “upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation” (Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 54 L.Ed.2d 648 [1978]; see Fox v. Vice, 563 U.S. 826, 833, 131 S.Ct. 2205, 180 L.Ed.2d 45 [2011] ). Nonetheless, it remains “ ‘very rare [for] victorious defendants in civil rights cases [to] recover attorneys' fees’ ” (Shields v. Carbone, 99 A.D.3d 1055, 1057, 952 N.Y.S.2d 649 [3d Dept. 2012], quoting Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 178 [2d Cir. 2006]; see Nicholas v. Harder, 637 Fed Appx 51, 52 [2d Cir. 2016] ).

Here, in determining that plaintiff's claim against Whittemore was frivolous, the court relied on plaintiff's testimony during her deposition. During her deposition, however, plaintiff specifically stated that the factual basis for her claim against Whittemore was that he was the personnel director and his conduct caused injury to her because he allowed someone else to be placed in the position to which she sought to be reinstated. Contrary to the court's determination, any inability of plaintiff to provide further elaboration during her deposition, which was taken early in the litigation shortly after commencement of the action, did not establish that her claim against Whittemore was frivolous. Moreover, a claim may not “be deemed groundless where[, as here,] the plaintiff has made a sufficient evidentiary showing to forestall summary judgment and has presented sufficient evidence at trial to prevent the entry of judgment against him [or her] as a matter of law” (LeBlanc–Sternberg v. Fletcher, 143 F.3d 765, 771 [2d Cir. 1998]; see Nicholas, 637 Fed Appx at 52). Although the civil rights allegations against Whittemore may have been weak, we cannot deem plaintiff's claim “frivolous, unreasonable, or without foundation” (Christiansburg Garment Co., 434 U.S. at 421, 98 S.Ct. 694; see Shields, 99 A.D.3d at 1057, 952 N.Y.S.2d 649). We therefore reverse the order in appeal No. 2 and deny the motion.