18-2505
Levitz v. Bree

                          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
24th 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:                      Michael H. Blakey, Law Office of Michael Blakey,
                                              Westhampton Beach, NY
       Appeal from a judgment of the United States District Court for the Eastern 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 the judgment of the district court upholding

the jury’s finding that Bree was liable for false arrest and malicious prosecution under New York

law and upholding the jury’s award of compensatory and punitive damages totaling $120,300.00.

We assume the parties’ familiarity with the underlying facts, the procedural history of the case,

and the issues on appeal.

       First, Bree contends that the district court erred in denying his motion 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 district court did not err in ruling 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 evidence from which a jury could have

found that Bree lied to police when he told them that Levitz made harassing 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 2005, asserted that the telephone harassment was real, and stated that he

genuinely believed Levitz left the voice mail on his home phone. While Bree’s version of events



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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 conclude that, with credibility assessments made

against the moving party and all inferences drawn against the moving party, 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 marks omitted). This Court cannot “assess the

weight of conflicting evidence, pass on the credibility of the witnesses, 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 that 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. 2014) (internal quotation

marks and brackets omitted). To determine whether 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 remittitur 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). “Rather, we may order a new trial only when the verdict is irrational



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or so high as to shock the judicial conscience, rendering it an abuse 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 consideration of the verdict and certainly no basis to hold that the court

abused its discretion when it refused to order remittitur.

       We have considered Bree’s remaining 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




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