18-2505 Levitz v. Bree 

### UNITED STATES COURT OF APPEALS FOR THE SECO ND CIRCUIT SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AF TER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROC EDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELEC TRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMM ARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for th e Second Circuit, held at the Thurgood Marshall United States Courthous e, 40 Foley Square, in the City of New York, on the 24 th day of January, two thousand twenty. PRESENT: PETER W. HALL, RICHARD J. SULLIVAN, JOSEPH F. BIANCO, Circuit Judges

.

_____________________________________ Yetta Cynthia Levitz, Plaintiff

–

Appellee , v. No. 18-2505 Police Officer Lawrence McQuade, Defendant, Thomas Bree, Defendant

–

Appellant.

_____________________________________ For Plaintiff–Appellee: Steven M. Warshawsky, The Warshawsky Law Firm, New York, NY For Defendant–Appellant: Michae l H. Blakey, Law Office of Michael Blakey, Westhampton Beach, NY

### 2 Appeal from a judgment of the United States Di strict Court for the Ea stern District of New York (Donnelly, J. ). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED. Defendant–Appellant Thomas Bree appeals th e judgment of the district court upholding the jury’s finding that Bree was liable for false arrest and malicious pr osecution under New York law and upholding the jury’s award of compensatory and punitive damages totaling $120,300.00. We assume the parties’ familiarit y with the underlying facts, the procedural history of the case, and the issues on appeal. First, Bree contends that the district cour t erred in denying his mo tion for judgment as a matter of law. Reviewing this argument de novo, see Cobb v. Pozzi, 363 F.3d 89, 101 (2d Cir. 2004), we find it unpersuasive. The di strict court did not err in ru ling that there was sufficient evidence to support the jury’s finding that Bree provided false evidence to the police resulting in Cynthia Levitz’s arrest and prosecution. Levitz presented eviden ce from which a jury could have found that Bree lied to police when he told them that Levitz made harassi ng phone calls to his home and violated the order of protection. See, e.g. , Weiner v. McKeefery , 90 F. Supp. 3d 17, 46 (E.D.N.Y. 2015); Brown v. Nassau Cty. , 306 A.D.2d 303, 303 (N.Y. App. Div. 2003); Ramgopal v. Singh , 866 N.Y.S.2d 95 (App. Term 2008). Based on facts presented by Levitz at trial, the jury could have, for example, reasonably believed that Bree made up the harassment story to hide his affair with Levitz from his wife. To be sure, Bree denied having a romantic relationship with Levitz after his marriage in 20 05, asserted that the telephone harassm ent was real, and stated that he genuinely believed Levitz left the voice mail on his home phone. While Bree’s version of events

### 3 may have been plausible and could have been accepted by the jury, “a court may grant a motion for judgment as a matter of law only if it can co nclude that, with credibility assessments made against the moving party and all inferences dr awn against the moving pa rty, a reasonable juror would have been compelled to accept the view of the moving party.” Zellner v. Summerlin , 494 F.3d 344, 370–71 (2d Cir. 2007) (internal quotation ma rks omitted). This Court cannot “assess the weight of conflicting evidence, pa ss on the credibility of the witne sses, or substitute its judgment for that of the jury.” Weldy v. Piedmont Airlines, Inc., 985 F.2d 57, 60 (2d Cir. 1993) (internal quotation marks and citation omitted). Applying th at standard, we have no basis to reverse the jury’s verdict. Second, Bree contends that the district court erred in denying his motion for a new trial or remittitur because the jury’s damage award is excessive. “[T]he role of the district court is to determine whether the jury’s verdict is within the confines set by state law, and to determine, by reference to federal standards developed under Rule 59, whether a new trial or remittitur should be ordered.” Stampf v. Long Island R.R. Co. , 761 F.3d 192, 204 (2d Cir. 20 14) (internal quotation marks and brackets omitted). To determine whet her a jury award is excessive under New York law, we “compare it with awards in similar cases.” Id

. In reviewing the district court’ s denial of a new trial or re mittitur for excessive damages, we review only for abuse of discretion. Gasperini v. Ctr. for Humanities, 518 U.S. 415, 434–35 (1996); Stampf , 761 F.3d at 204. “The calculation of damages is the province of the jury, and we will not vacate or reduce a jury award merely because we would have granted a lesser amount of damages.” Turley v. ISG Lackawanna, Inc. , 774 F.3d 140, 162 (2d Cir. 2014) (internal quotation marks and citations omitted). “Rat her, we may order a new trial only when the verdict is irrational

### 4 or so high as to shock the judici al conscience, rendering it an a buse of discretion not to set it aside.” Nairn v. Nat’l R.R. Passenger Corp., 837 F.2d 565, 567 (2d Cir. 1988) (internal quotation marks omitted). Here, the district court carefully evaluated the jury awards for each claim in the context of similar cases and found the damage awards to be comparable. Levitz v. Bree , No. 15 Civ. 976 (AMD)(VMS), 2018 WL 4007871, at *4–6 (E.D.N.Y. Aug. 16, 2018). We find no fault in the district court’s careful consider ation of the verdict and certainl y no basis to hold that the court abused its discretion when it refused to order remittitur. We have considered Bree’s rema ining arguments and find them to be without merit. We hereby AFFIRM the judgment of the district court. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court