Honorable Jed S. Rakoff, of the United States District Court for the Southern *

District of New York, sitting by designation.

08-3430-cv

Elyse v. Bridgeside Inc.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY

ORDERS FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF

APPELLATE PROCEDURE 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 ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY

CITING A SUMMARY 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 the Second Circuit, held at the

Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 1 day of st

March, two thousand ten.

PRESENT:

AMALYA L. KEARSE,

PETER W. HALL,

Circuit Judges,

JED S. RAKOFF,*

District Judge.

_______________________________________________

Macsen Elyse, 

Plaintiff-Appellant,

v. No. 08-3430-cv

Bridgeside Incorporated, a New York Company, Peter 

Brunetti, Edkins Auto Sales, Inc., a New York Company,

Defendants-Appellees.

______________________________________________

For Appellant: MACSEN ELYSE, pro se, Roselle,

New Jersey.
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For Appellees: ROBERT SGARLATO (DAVID

METH, on the brief) Slater and

Sgarlato, P.C., Staten Island, N.Y.

Appeal from a judgment of the United States District Court for the Eastern District of

New York (Cogan, J.).

UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED AND

DECREED that the order of the district court is AFFIRMED.

Plaintiff-Appellant Macsen Elyse, pro se, appeals from a June 2008 decision of the

district court, denying his motions to alter or amend the judgment, pursuant to Federal Rule of

Civil Procedure 59(e), or for a partial new trial on the issue of damages, pursuant to Federal Rule

of Civil Procedure 59(a). We assume the parties’ familiarity with the facts and procedural

history of the case.

Elyse principally challenges the district court’s denial of his motion for either (1) an

alteration or amendment of the judgment to increase the damages award from $18,000.00 to

$227,057.96, or (2) a partial new trial on the issue of damages. His motion to increase the

damages award was properly denied by the district court on the ground that additur is

constitutionally impermissible. See, e.g., Dimick v. Schiedt, 293 U.S. 474, 486-88 (1935);

Gentile v. County of Suffolk, 926 F.2d 142, 155 (2d Cir. 1991); Crane v. Consol. Rail Corp., 731

F.2d 1042, 1046 (2d Cir.), cert. denied, 469 U.S. 854 (1984).

Further, although Elyse argues that his motions should have been granted because “the

damages verdict goes against the clear weight of the evidence,” the weight of the evidence is an

argument to the factfinder, not a ground for reversal on appeal, see, e.g., Ceraso v. Motiva

Enterprises, LLC, 326 F.3d 303, 316-17 (2d Cir. 2003); Piesco v. Koch, 12 F.3d 332, 344-45 (2d

Cir. 1993); Schwartz v. Capital Liquidators, Inc., 984 F.2d 53, 54 (2d Cir. 1993). Thus, the
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district court’s denial of a new-trial motion that was based on the weight of the evidence is

generally unreviewable, see, e.g., Haywood v. Koehler, 78 F.3d 101, 104 (2d Cir. 1996);

Stonewall Ins. Co. v. Asbestos Claims Mgmt. Corp., 73 F.3d 1178, 1199 (2d Cir. 1995), although

a denial is reviewable to the extent that the contention is that the district court applied the wrong

legal standard, see, e.g., Piesco, 12 F.3d at 344.

The district court is authorized to grant a new trial based on the weight of the evidence

only if it determines that the jury’s verdict was “seriously erroneous,” see, e.g., id. at 344-45, or

“a miscarriage of justice,” Sorlucco v. N.Y. City Police Dept., 971 F.2d 864, 875 (2d Cir. 1992)

(quotation mark omitted) (quoting Smith v. Lightning Bolt Prods. Inc., 861 F.2d 363, 370 (2d

Cir. 1988)). In making its determination, however, the court must refrain from invading the

province of the jury to evaluate the credibility of the witnesses. See, e.g., Tennant v. Peoria &

P.U. Ry. Co., 321 U.S. 29, 35 (1944); Piesco, 12 F.3d at 345 (district court must “bear[] in mind

. . . that [w]here the resolution of the issues depend[s] on assessment of the credibility of the

witnesses, it is proper for the court to refrain from setting aside the verdict and granting a new

trial” (alteration in original) (quoting Metromedia Co. v. Fugazy, 983 F.2d 350, 363 (2d Cir.

1992)); Sorlucco, 971 F.2d at 875.

We see no application of an erroneous legal standard or other error of law in this case,

and the findings of the district court precluded any possible conclusion that the jury’s verdict

could be viewed as seriously erroneous or a miscarriage of justice. The court found that Elyse

essentially sought “to reargue the credibility of plaintiffs’ witnesses”; that “there were numerous

bases upon which the jury could refuse to accept the opinion of plaintiffs’ expert”; and that the

verdict “was not against the weight of the evidence.” Mada Int’l Auto Auction, Inc. v. Bridgeside
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Inc., No. 07 Civ. 286 (BMC), 2008 WL 2414799, at *2 (E.D.N.Y. June 13, 2008) (emphasis

added). The denials of Elyse’s motions to set aside the verdict and for a new trial are thus not

reviewable.

Finally, to the extent that Appellant’s brief now challenges the district court’s denial of

attorney’s fees, we are without jurisdiction to review that part of the district court’s order because

Appellant did not specify in his notice of appeal that he wished to appeal that portion of the

district court’s order. See Fed. R. App. P. 3(c)(1)(B) (“notice of appeal must . . . designate the

judgment, order, or part thereof being appealed”); see also New Phone Co. v. City of New York,

498 F.3d 127, 131 (2d Cir. 2007) (per curiam) (holding that appellate jurisdiction “depends on

whether the intent to appeal from [a] decision is clear on the face of, or can be inferred from, the

notice[] of appeal”).

We have reviewed Appellant’s remaining arguments and find them to be without merit. 

For the reasons stated above, the judgment of the district court is AFFIRMED.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk