15-1243-cv
Zaratzian v. Abadir, et al.
                      UNITED STATES COURT OF APPEALS
                          FOR THE SECOND CIRCUIT

                                  SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a
summary order filed on or 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 26th day of May, two thousand seventeen.

Present:
             AMALYA L. KEARSE,
             PETER W. HALL,
             DENNY CHIN,
                       Circuit Judges.


ANNABELLE ZARATZIAN,

                    Plaintiff-Appellant,

             v.                                                  15-1243-cv

ADEL RAMSEY ABADIR, LARRY M. CARLIN,

                    Defendants-Appellees.




For Appellant:                HAROLD R. BURKE, Greenwich, Connecticut.

For Appellees:                NATHANIEL Z. MARMUR, New York, New York; LARRY M.
                              CARLIN, pro se, New York, New York.




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15-1243-cv
Zaratzian v. Abadir, et al.
        Appeal from judgments of the United States District Court for the Southern

District of New York (Briccetti, J.).

        UPON     DUE     CONSIDERATION,          IT    IS   HEREBY       ORDERED,

ADJUDGED, AND DECREED that the judgments are AFFIRMED.

        Following a jury trial, Plaintiff-Appellant Annabelle Zaratzian appeals from a

final judgment entered in favor of Defendant-Appellee Adel Ramsey Abadir and

from a grant of summary judgment in favor of Defendant-Appellee Larry M. Carlin.

Specifically, Zaratzian challenges (1) the adequacy of the district court’s jury

instructions; (2) the adequacy of the verdict form; (3) the denial of her motion for a

new trial; (4) the denial of her motion for a post-trial permanent injunction; and

(5) the grant of summary judgment to Carlin. We assume the parties’ familiarity

with the underlying facts, the procedural history, the district court’s rulings, and

the arguments presented on appeal.

   I.      Jury Instructions

        Zaratzian did not object to the jury instructions at trial; we thus review the

omission of her desired instruction for fundamental error. De Falco v. Bernas, 244

F.3d 286, 317 (2d Cir. 2001). Fundamental error is “an error so serious and flagrant

that it goes to the very integrity of the trial, and the instruction must have deprived

the jury of adequate legal guidance to reach a rational decision.” Id. (internal

quotation marks and citations omitted).

        We discern no fundamental error in the jury instructions as they were given.

The district court instructed the jury on Abadir’s affirmative consent defense, stated



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Zaratzian v. Abadir, et al.
that the burden was on Abadir to prove Zaratzian’s consent by a preponderance of

the evidence, and made clear that the scope of any consent was for the jury to

decide. The jury heard testimony and argument about the Marital Separation

Agreement. Given the district court’s thorough explanation of the consent defense

and the argument relating to the Marital Separation Agreement, the jury had

adequate guidance. There was no fundamental error.

   II.      Verdict Form

         Zaratzian failed to object to the verdict form at trial, and we review its

formulation for fundamental error as well. See Simms v. Village of Albion, 115 F.3d

1098, 1109 (2d Cir. 1997); Lore v. City of Syracuse, 670 F.3d 127, 160 (2d Cir. 2012)

(“A party that fails to object at trial to the substance or ambiguity of special verdict

questions to be put to the jury waives its right to a new trial on that ground and has

no right to object to such matters on appeal . . . unless the error is fundamental.”

(internal citations omitted)). As with the jury instructions, we conclude that there

was no fundamental error with respect to the verdict form.

         The verdict question, when read in conjunction with the thorough, accurate

jury instructions, implicitly required the jury “to determine both whether plaintiff

had carried her burden and whether defendant had carried his.” Zaratzian v.

Abadir, No. 10-cv-9049, 2015 WL 5474246, at *2 (S.D.N.Y. July 8, 2015). The word

“unlawfully” encompasses both the question whether Zaratzian successfully proved

a violation of the Wiretap Act and whether Abadir successfully proved an

affirmative defense. Zaratzian did not clearly ask the court to pose to the jury the



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Zaratzian v. Abadir, et al.
specific question of whether Abadir had proven the affirmative defense. Thus, we

see no fundamental error.

   III.     Motion for a New Trial

      We review the denial of a motion for a new trial under Federal Rule of Civil

Procedure 59 for abuse of discretion. Smith v. Carpenter, 316 F.3d 178, 183 (2d Cir.

2003). Generally, new trials “should not be granted unless the trial court is

convinced that the jury has reached a seriously erroneous result or that the verdict

is a miscarriage of justice.” Atkins v. New York City, 143 F.3d 100, 102 (2d Cir.

1998) (quoting Lightfoot v. Union Carbide Corp., 110 F.3d 898, 911 (2d Cir. 1997)).

      The district court, in denying the motion for a new trial, concluded that

Abadir presented sufficient evidence to support the consent defense. “[D]efendant

testified plaintiff consented to the auto-forwarding after he confronted her about her

failure to forward him emails about (or otherwise inform him of) scheduling with

respect to their children’s sporting activities. If the jury credited this testimony, and

found the consent broad enough to cover all alleged violations of the Wiretap Act,

then the jury would have found no liability—as it did.” Zaratzian, 2015 WL

5474246, at *3. The district court did not exceed the bounds of its discretion in

reaching that conclusion.

          Zaratzian’s challenge to the district court’s decision on this motion omits

some critical facts. After Zaratzian and Abadir separated in September 2005, she

assumed responsibility for the master Cablevision account. The auto-forwarding

feature remained enabled and, critically, because Abadir was no longer the “master”



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Zaratzian v. Abadir, et al.
account holder, he could not disable it. The jury could have rationally concluded

that by maintaining control of the Cablevision account and leaving the auto-

forwarding intact, Zaratzian consented to the interception of her emails—even after

the Marital Separation Agreement was executed—until she had Abadir’s account

deleted on June 4, 2009.

         Because there was sufficient evidence for the jury to reach the conclusion

that it did, the district court did not err in denying Zaratzian’s motion for a new

trial.

   IV.      Post-Trial Permanent Injunction

         We review for abuse of discretion the district court’s determinations with

respect to fashioning equitable relief. United States v. Apple, Inc., 791 F.3d 290, 313

(2d Cir. 2015). We agree with the district court’s conclusions that the jury made a

factual determination that there was no Wiretap Act violation and that Zaratzian is

not entitled to a permanent injunction on that basis. When two claims asserted by

the same plaintiff are tried together and one is to be decided by the jury and the

other by the judge, principles of collateral estoppel prevent the judge from making

findings of fact contrary to those of the jury. See, e.g., Curtis v. Loether, 415 U.S.

189, 196 n.11 (1974); Dairy Queen, Inc. v. Wood, 369 U.S. 469, 470–73 (1962);

LeBlanc-Sternberg v. Fletcher, 67 F.3d 412, 431–32 (2d Cir. 1995), cert. denied, 518

U.S. 1017 (1996).




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15-1243-cv
Zaratzian v. Abadir, et al.
        Zaratzian’s challenge pursuant to Federal Rule of Civil Procedure 52 is

misplaced because Rule 52 applies only to actions “tried on the facts without a jury

or with an advisory jury.” Fed. R. Civ. P. 52(a) (emphasis added).

   V.      Summary Judgment for Carlin

        Zaratzian also conditionally argues that the district court’s grant of summary

judgment in favor of Carlin “should be reversed if Zaratzian’s other claims are

remanded for further proceedings.” Appellant’s Br. at 51. As we have rejected the

challenges to the dismissal of her other claims, her appeal with respect to Carlin is

moot.

        We have considered Zaratzian’s remaining arguments and find them to be

without merit.

        Accordingly, the judgments are AFFIRMED.


                                               FOR THE COURT:
                                               Catherine O’Hagan Wolfe, Clerk




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