13-534(L)
Aktas v. JMC Development Co.


                                   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 23rd
day of April, two thousand fourteen.

PRESENT:
            GUIDO CALABRESI,
            JOSÉ A. CABRANES,
            DEBRA ANN LIVINGSTON,
                         Circuit Judges.
_____________________________________

NECDET AKTAS, LISA AKTAS,

                     Plaintiffs -Counter Defendant-Appellants,

                              v.                                                       Nos. 13-534(L), 13-1722(Con)

JMC DEVELOPMENT CO., INC., STEPHEN M. JUNG, DBA
JUNG ARCHITECTURE,

                     Defendants-Counter Claimaints-Appellees,

MICHAEL TERRY, et al.,

                     Third-Party Defendants-Cross Defendants-Cross Claimaints,

JOSEPH M. CANTANUCCI, JR., et al.,

                     Defendants-Cross Defendants-Counter Claimants-Counter Defendants.*


         *   The Clerk of Court is directed to amend the caption in this case to conform to the listing of the parties above.
     _____________________________________
 1
 2   FOR NECDET AKTAS, et al.:                                CARLO A. C. DE OLIVEIRA (Phillip G. Steck,
 3                                                            on the brief), Cooper Erving & Savage LLP,
 4                                                            Albany, NY.
 5
 6   FOR JMC DEVELOPMENT CO., INC.:                           JASON A. FRAMENT, LaFave, Wein & Frament
 7                                                            PLLC, Guilderland, NY.
 8
 9   FOR STEPHEN M. JUNG:                                     Stephen M. Jung, pro se, Schroon Lake, NY.
10
11        Appeal from a judgment of the United States District Court for the Northern District of
12   New York (Mae A. D’Agostino, Judge).
13
14        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
15   AND DECREED that the District Court’s judgment is AFFIRMED.
16
17           Plaintiffs-appellants Necdet and Lisa Aktas appeal from the District Court’s judgment and
18   order, entered January 18, 2013, denying their post-trial motions following a jury trial. We assume
19   the parties’ familiarity with the underlying facts and the procedural history of the case, to which we
20   refer only as necessary to explain our decision to affirm.
21
22           The first issue on appeal is whether the District Court properly denied plaintiffs’ Rule 50(b)
23   motion for judgment as a matter of law against defendant JMC Development, Co., Inc. (“JMC”).
24   “A post-trial Rule 50(b) motion for judgment as a matter of law is properly made only if a Rule 50(a)
25   motion for judgment as a matter of law has been made before submission of the case to the jury.” Bracey v.
26   Bd. of Educ. of City of Bridgeport, 368 F.3d 108, 117 (2d Cir. 2004) (emphasis supplied). We have
27   further held with regard to Rule 50(b) that, “[t]hough a procedural requirement, it may not be
28   waived by the parties or excused by the district court.” Id. Because plaintiffs did not adequately
29   make a Rule 50(a)(2) motion before the case was submitted to the jury, the Court did not err in
30   denying Rule 50 relief.
31
32            Plaintiffs argue next that the Court erred in sanctioning them for spoliation of evidence in
33   the form of the “adverse inference” charge. We review a district court’s decision on a motion for
34   discovery sanctions for abuse of discretion. Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d
35   99, 107 (2d Cir. 2002). After careful review, we conclude that this sanction was not erroneous in
36   light of ample evidence that plaintiffs destroyed or altered JMC’s construction work, while excluding

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 1   JMC from the property. As a result of this destruction, which may be understood as a failure to
 2   mitigate damages, we also reject plaintiffs’ contention that the comparative negligence charge was
 3   improper. See Resolution Trust Corp. v. Mass. Mut. Life Ins. Co., 93 F. Supp. 2d 300, 310 (W.D.N.Y.
 4   2000) (“The duty to mitigate damages, of course, is implicit within the comparative negligence
 5   framework.”).
 6
 7            Plaintiffs also object to the description of “material breach” in the jury instructions as “a
 8   failure to do something that is fundamental to the contract.” J. App. 72. Where a party objected to
 9   a proposed instruction, we will vacate the jury’s verdict if the error was prejudicial in light of the
10   charge as a whole. Jacques v. DiMarzio, Inc., 386 F.3d 192, 200 (2d Cir. 2004). Where a party failed to
11   object to a jury instruction, we will only vacate a verdict if the error was fundamental, Jarvis v. Ford
12   Motor Co., 283 F.3d 33, 62 (2d Cir. 2002), that is, if the error was “so serious and flagrant that it goes
13   to the very integrity of the trial,” SCS Commc’ns, Inc. v. Herrick Co., 360 F.3d 329, 343 (2d Cir. 2004).
14   It appears that plaintiffs’ counsel waived this argument when, after initially objecting to the charge,
15   he stated, “I think the later language is correct, that [the breach] must . . . touch on the fundamental
16   purpose of the contract. That’s . . . my position, your Honor.” J. App. 332. In any event, we
17   conclude that, read as a whole, the charge was not so prejudicial that “[t]he jury might well have
18   reached a different result had [an] appropriate instruction[ ] been given.” Holzapfel v. Town of
19   Newburgh, 145 F.3d 516, 525 (2d Cir. 1998).
20
21           Plaintiffs’ final challenge on appeal is that the $3,500 damages award against defendant
22   Stephen Jung for breach of contract must be set aside because it cannot be a reasonable estimate of
23   the agreed-upon measure of damages, namely, the cost of repair. Yet when considered in
24   conjunction with the $50,000 damages award for plaintiffs’ negligence claim against Jung, which
25   employed a similar measure of damages, the total amount of damages awarded to plaintiffs was
26   consistent with the parties’ chosen instructions.
27
28                                              CONCLUSION
29
30          We have considered all of plaintiffs’ arguments on appeal and find them to be without merit.
31   Accordingly, we AFFIRM the January 18, 2013 judgment of the District Court.
32
33                                                            FOR THE COURT:
34                                                            Catherine O’Hagan Wolfe, Clerk


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