     15-1188
     McKinney v. Central Hudson Gas & Electric

                          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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 28th day of January, two thousand sixteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                RICHARD C. WESLEY,
 8                DEBRA ANN LIVINGSTON,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       KARA MCKINNEY,
13                Plaintiff-Appellant,
14
15                    -v.-                                               15-1188
16
17       CENTRAL HUDSON GAS & ELECTRIC CORP.,
18                Defendant-Appellee.
19       - - - - - - - - - - - - - - - - - - - -X
20
21       FOR APPELLANT:                        MICHAEL H. SUSSMAN,
22                                             Sussman & Watkins,
23                                             Goshen, New York.
24
25       FOR APPELLEES:                        SUSANNE KANTOR (Joseph A.
26                                             Saccomano, Jr. on the brief),
27                                             Jackson Lewis P.C.,
28                                             White Plains, New York.

                                                  1
 1
 2        Appeal from a judgment of the United States District
 3   Court for the Southern District of New York (Smith, M.J.).
 4
 5        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 6   AND DECREED that the judgment of the district court be
 7   AFFIRMED.
 8
 9        Plaintiff Kara McKinney appeals from an order of the
10   United States District Court for the Southern District of
11   New York (Smith, M.J.), denying her motion for a new trial.
12   We assume the parties’ familiarity with the underlying
13   facts, the procedural history, and the issues presented for
14   review.
15
16        Plaintiff, an African American, alleged that defendant
17   Central Hudson Gas & Electric Corp. discriminated against
18   her on the basis of race because another white candidate was
19   preferred for promotion. After a six-day trial, the jury
20   returned a verdict in favor of Central Hudson. Plaintiff
21   moved for a new trial under Federal Rule of Civil Procedure
22   59(a) on the ground that the jury’s verdict was against the
23   weight of the credible evidence.
24
25        The denial of a motion to set aside a verdict as
26   against the weight of the evidence is not subject to
27   appellate review. Stonewall Ins. Co. v. Asbestos Claims
28   Mgmt. Corp., 73 F.3d 1178, 1199 (2d Cir. 1995). “The task
29   of reviewing and weighing all of the evidence presented at
30   trial simply imposes too great a burden on the appellate
31   court.” Lightfoot v. Union Carbide Corp., 110 F.3d 898, 910
32   (2d Cir. 1997). Accordingly, defendants are “entitled to
33   argue to the trial judge that the verdict [was] against the
34   weight of the evidence . . . but the denial of that
35   challenge is one of those few rulings that is simply
36   unavailable for appellate review.” Stonewall, 73 F.3d at
37   1199. As a result, the denial of the motion to set aside
38   the verdict must be affirmed.
39
40        However, though we do not review the district court’s
41   weighing of the evidence, a denial of a motion for a new
42   trial “is plainly reviewable to the extent that the
43   challenge is that the district court applied the wrong legal
44   standard.” Piesco v. Koch, 12 F.3d 332, 344 (2d Cir. 1993).
45   The court below ruled that it was inappropriate to set aside
46   the jury verdict because the resolution of issues at trial
47   depended on an assessment of witness credibility, and,

                                  2
 1   “[h]aving observed the several days’ worth of testimony at
 2   trial . . . the Court s[aw] no reason to disturb its
 3   verdict.” Special App’x at 18. Nothing in the district
 4   court’s decision, including its affirmation that the jury is
 5   owed substantial deference in making credibility
 6   assessments, suggested that the court applied the incorrect
 7   legal standard to its analysis. See Raedle v. Credit
 8   Agricole Indosuez, 670 F.3d 411, 418 (2d Cir. 2012) (“Where
 9   the resolution of the issues depended on an assessment of
10   the credibility of the witnesses, it is proper for the court
11   to refrain from setting aside the verdict and granting a new
12   trial.” (alteration omitted)).
13
14        For the foregoing reasons, and finding no merit in
15   McKinney’s other arguments, we hereby AFFIRM the judgment of
16   the district court.
17
18                              FOR THE COURT:
19                              CATHERINE O’HAGAN WOLFE, CLERK
20




                                  3
