Palumbo v Peters

[*1] Palumbo v Peters 2006 NY Slip Op 52184(U) [13 Misc 3d 1239(A)] Decided on October 6, 2006 Supreme Court, Nassau County LaMarca, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 6, 2006
Supreme Court, Nassau County

Louis Palumbo, Plaintiff,

against

Edward Peters, Robert Lenti, and Roy Lester, Defendants.



6812/04



Dougherty, Ryan, Giuffrea, Zambito & Hession, Esqs.

Attorneys for Plaintiff

131 East 38th StreetNew York, NY 10016

Eliot Spitzer, Attorney General of the State of New York

Attorney for Defendants

200 Old Country Road

Mineola, NY 11501

William R. LaMarca, J.

Plaintiff, LOUIS PALUMBO (hereinafter referred to as "PALUMBO"), moves for an order, pursuant to CPLR §4404(a), setting aside the jury verdict in favor of Defendants, EDWARD PETERS (hereinafter referred to as "PETERS"), and ROY LESTER (hereinafter referred to as "LESTER"), on the ground that, as a matter of law, plaintiff is entitled to judgment and that the verdict is contrary to the weight of the evidence. PALUMBO requests a new trial as to PETERS on the issue of damages, unless said defendant stipulates to damages in the amount of not less than $30,000.00 or some other amount the Court deems just and proper. As to LESTER, PALUMBO requests a new trial on the cause of action for tortuous interference with contractual relations and prospective advantage. PETERS and LESTER oppose the motion in its entirety. The motion is determined as follows:

Background

This action was commenced by PALUMBO against defendants, PETERS, LESTER and ROBERT LENTI, on May 18, 2004, by the filing of a Summons and Complaint which consisted of causes of action for defamation and tortuous interference with contractual relations. The trial of the action commenced on April 17, 2006 and concluded on April 27, 2006, over a period of nine (9) days. Before resting, PALUMBO, voluntarily discontinued the case against defendant, ROBERT LENTI, with prejudice.

Prior to the incident which precipitated this litigation, the parties knew each other for approximately 15 years, having worked each season at Jones Beach State Park (hereinafter referred to as "Jones Beach") as lifeguards. They all professed to having been [*2]friends.

Over the years, PETERS rose to the position of Captain in the Lifeguard Corps at Jones Beach where LESTER and PALUMBO were employed as lifeguards. During the 2003 season, PALUMBO was rehired for the season, but worked only two (2) days before taking a medical leave. He testified that, during that year, he was considered for promotion to Assistant Water Safety Coordinator, a/k/a Assistant Coordinator or Lifeguard Coordinator, a position which offered increased wages and responsibility. PALUMBO testified, and all parties agreed, that a job for the new position of Assistant Coordinator had been posted in or about May of 2003 and that he and other lifeguards applied for the position. He testified that interviews of the applicants were conducted by Water Safety Director, Long Island Division, Joseph Scalise (hereinafter referred to as "Director Scalise"), who recommended PALUMBO to George Gorman, the then Director of Operations and Administration, Long Island District (hereinafter referred to as "Director Gorman") for the position. In fact, as will be established hereinafter, there was no such position available at that time and neither Director Scalise nor Director Gorman had authority to create that position. The essence of this litigation is that, during June of that year, LESTER allegedly made defamatory statements to Director Gorman, that PALUMBO was unqualified for the position and, thus, interfered with his contractual relations with his employer. Moreover, PALUMBO claimed that, on September 1, 2003, PETERS defamed him by reporting on a Seasonal Separation Form, that PALUMBO had "poor time and attendance", that PALUMBO's performance was rated "unsatisfactory" and that PALUMBO should not be considered for future employment. Testimony at trial established that PETERS discussed the contents of the report with Director Gorman and Director Scalise. It was PALUMBO's position that the negative report defamed him, embarrassed him and demeaned him in front of his peers.

With respect to alleged interference by defendants with an available position or contract, Nancy Palumbo (no relative), testified that, during 2003, she was employed by the New York State Office of Parks, Recreation and Historic Preservation as Executive Deputy Commissioner over the Long Island Region, including Jones Beach. She testified that, notwithstanding the allegations of PALUMBO and the job posting, there was no existing title for "Assistant Coordinator" or "Lifeguard Coordinator", and that such a position would have been a new job title that would require approval by the Civil Service Commission and the Division of Budget. Ms. Palumbo testified that, as Executive Deputy Commissioner, she would have had to review and have personal knowledge of any proposal to create an additional position, and that her office did not seek approval for such a position from the Civil Service Commission or the Division of Budget, as there was a hiring freeze during that period. Ms. Palumbo further testified that she had no conversations with Director Gorman concerning such a position, although in a prior affidavit she stated to having had such a conversation, however, in July 2003, she advised Director Gorman of the budgetary constraints and that a position of "Lifeguard Coordinator" would not be created. She testified that neither Director Gorman nor Director Scalise had authority to create the position of Assistant Coordinator and the evidence presented at trial made it clear that there was no position of "Lifeguard Coordinator" for which a contract could have been entered into between PALUMBO and the State of New York.

As to the negative Seasonal Separation Form, there was undisputed evidence at trial [*3]that the September 1, 2003 evaluation was quickly overruled, first by Director Scalise on September 3, 2003 and then by PETERS on September 4, 2003, when it was confirmed that PALUMBO was on sick leave and, thus, an evaluation of "poor time and attendance" was incorrect. Evidence was shown that it was not until the following May, 2004, that PLAUMBO's physician issued the required "capable of performing full lifeguard duties" note and that PALUMBO was, in fact, re-hired for the 2004 season at Jones Beach.

At the charging conference, which took place over a two (2) day period, all counsel and the Court discussed the appropriate charges to be placed before the jury. In its charge, the Court removed from the jury's consideration any alleged claims by plaintiff for punitive damages, tortuous interference with contractual relations and interference with prospective advantage. The Court also removed from the jury's consideration the defendants defense of qualified privilege. Included in the charges were instructions to the jury on the law of defamation and the law of damages as they applied to this case. The jury was given a Verdict Sheet requiring answers to four (4) questions and was sent to deliberate. Subsequently, in response to a written question from the jury during deliberations, whether the Court can change a compensatory damage award, the Court explained that it could not change the verdict, but upon motion by any party, the Court could consider increasing or decreasing the jury award upon stipulation, could order a new trial or could sustain the jury's verdict.

The jury deliberated and delivered its verdict: As to defendant PETERS, in response to Question #

1, "Was the statement by defendant, EDWARD PETERS, defamatory?", the jury's response was "Yes". As to Question #

2, "State the amount of compensatory damages, if any, awarded to plaintiff, LOUIS PALUMBO", the jury's response was "None". As to defendant LESTER, the jury found that he made no defamatory statement in response to Question #

3, "Was the statement by defendant, ROY LESTER, defamatory?" and chose to answer Question #

4, "State the amount of compensatory damages, if any, awarded to plaintiff", contrary to instructions, determining that there were no compensatory damages due to plaintiff.

In support of the motion, counsel for PALUMBO argues that, in accordance with the Court's charge, the verdict confirmed that PETERS' statement was libelous per se, and, as such, there was a presumption of damages. Plaintiff argues that the jury's verdict was technically defective because it did not award compensatory damages to PALUMBO. He requests a new trial on damages or, in the alternative, that the Court's order set an amount to which the defendant will stipulate to avoid a retrial of the damages. Additionally, plaintiff's counsel contends that the Court's rulings concerning charges to the jury were erroneous and prejudicial to his client and should have included a charge for punitive damages.

In opposition, defendant, PETERS argues that, although the jury found his statement to be defamatory, it found that PALUMBO was not damaged and, in such a situation, an award of one ($1.00) dollar may be appropriate, but it is not the only permitted award. Defendant cites the case of Lynch v The New York Times Company, 171 AD 399, 157 NYS 392 (1st Dept. 1916), that discusses the difficulty a jury of lay persons has in distinguishing a verdict for a defendant and one for a plaintiff with nominal damages. The case holds that a verdict will not be set aside so that the plaintiff may recover nominal damages. [*4]Defendant points out that there was no evidence presented of economic loss or of non-economic loss, or that PLAUMBO's reputation in fact suffered from PETERS' negative evaluation which proved to be false. Although various witnesses stated that the valuation was "the talk of the town" in the small lifeguard community, no witness testified that their opinion of PALUMBO was diminished by the PETER's evaluation. Additionally, the defendant states that the verdict sheet was fully discussed and was presented to the jury, without objection.

The Law

CPLR §4404(a) provides: After a trial of a cause of action or issue triable of right by a jury, upon the motion of any party or on its own initiative, the court may set aside a verdict or any judgment entered thereon and direct that judgment be entered in favor of a party entitled to judgment as a matter of law or it may order a new trial of a cause of action or separable issue where the verdict is contrary to the weight of the evidence, in the interest of justice or where the jury cannot agree after being kept together for as long as is deemed reasonable by the court.

It is axiomatic that a jury verdict is entitled to the benefit of every fair and reasonable inference which can be drawn from the evidence and that it is the function of the jury, not the Court, to make credibility determinations. However, it has often been observed that "whether a jury verdict is against the weight of evidence is essentially a discretionary and factual determination which is to be distinguished from the question of whether a jury verdict, as a matter of law, is supported by sufficient evidence". Nicastro v Park, 113 AD2d 129, 495 NYS2d 184 (2nd Dept. 1985). In addition, "[a]lthough these two inquiries may appear somewhat related, they actually involve very different standards and may well lead to disparate results". Cohen v Hallmark Cards, 45 NY2d 493, 410 NYS2d 282, 382 NE2d 1145 (C.A. 1978).

To sustain a determination that a jury verdict is not supported by sufficient evidence as a matter of law, there must be "no valid line of reasoning and permissible inference which could possibly lead reasonable men to the conclusion reached by the jury on the basis of the evidence presented at trial". Cohen v Hallmark Cards, supra ; Nicastro v Park, supra . Moreover, as stated in Nicastro, "[t]he criteria for setting aside a jury verdict as against the weight of the evidence are necessarily less stringent . . . [and] whether a jury verdict should be set aside as against the weight of the evidence does not involve a question of law, but rather requires a discretionary balancing of many factors (citations omitted)". The rule has been stated as requiring that a jury verdict be set aside where "the jury could not have reached a verdict on any fair interpretation of the evidence". Nicastro v Park, supra ; see also, Burney v Raba, 266 AD2d 174, 697 NYS2d 329 (2nd Dept. 1999); Licker v Brangan, 177 AD2d 547, 576 NYS2d 288 (2nd Dept. 1991).

Discussion

The Court, having heard the testimony and seen the demeanor of the witnesses, has the power to set the verdict aside in the supervision of the jury's work before it. The Court has "the duty of maintaining reasonable consistency between the weight of the evidence [*5]and the verdicts reached". Mann v Hunt, 283 AD 140, 126 NYS2d 823 (3rd Dept. 1953). It must employ the sum total of its legal experience to determine whether a new trial is required, in a decision that would not be regarded in the profession as unreasonable. Mann v Hunt, supra .

After a careful reading of the submissions herein, and upon consideration of the record before it, the Court concludes that the jury reached its verdict on a fair interpretation of the of the evidence while considering the credibility of the witnesses.Wertzberger v City

of New York, 254 AD2d 352, 680 NYS2d 260 (2nd Dept. 1998). As to plaintiff's counsel's complaints that the Court's charges to the jury were erroneous and prejudicial to his client and should have included a charge for punitive damage, those arguments are being made in the wrong forum. In any event, the Court reviewed counsel's objections placed on the record after an extensive charging conference and found no reason to change its rulings.

On the issue of punitive damages, the evidence produced at trial by PALUMBO never approached the level of conduct required to prevail on such a demand. See, Prozeralik v Capital Cities Communications, Inc., 82 NY2d 466, 626 NE2d 34, 605 NYS2d 218 (C.A. 1993). Punitive damages are awarded in tort actions "[w]here the defendant's wrongdoing has been intentional and deliberate, and has the character of outrage frequently associated with crime" (Prosser and Keeton, Torts § 2, at 9 [5th ed 1984]). That author also teaches that:Something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage, such as spite or malice,' or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that the conduct may be called wilful or wanton (Prosser and Keeton, Torts § 2 at 9-10 [5th ed 1984]).

"Moreover, punitive damages are generally not recoverable where the alleged wrong was a private wrong as opposed to one aimed at the public generally". H&R Hats and Novelties, Inc. v Citibank, N.A., 102 AD2d 742, 477 NYS2d 9 (1st Dept. 1984). Conclusion

It is the judgment of the Court that the issues of liability and damages in this matter were fully and fairly litigated. The Court concludes that the jury reached its verdict on a fair interpretation of the evidence while considering the credibility of the witnesses.Accordingly, it is hereby

ORDERED, that plaintiff's motion to set aside the jury verdict is denied.

All further requested relief not specifically granted is denied.

This constitutes the decision and order of the Court.

Dated: October 6, 2006

_________________________

WILLIAM R. LaMARCA, J.S.C. [*6]

TO:

palumbo-peters,lenti&lester,#

015/cplr.1b