SLOUP v. LOEFFLER

one plaintiffs must show that the differential treatment received resulted from non-discretionary state action:

There are some forms of state action . . . which by their nature involve discretionary decisionmaking based on a vast array of subjective, individualized assessments. In such cases the rule that people should be `treated alike, under like circumstances and conditions' is not violated when one person is treated differently from others, because treating like individuals differently is an accepted consequence of the discretion granted. In such situations, allowing a challenge based on the arbitrary singling out of a particular person would undermine the very discretion that such state officials are entrusted to exercise.

553 U.S. 591, 603 (2008); see also Siao-Pao, 2008 U.S. Dist. LEXIS at *27 ("Additionally, the Supreme Court recently clarified the Olech holding by limiting class of one claims in contexts characterized by individualized and subjective determinations. . . ."). In particular, defendants argue that Loeffler and Pomroy were taking discretionary state action when they regulated the location of Sloup's fishing and crabbing pots.

However, plaintiffs' claims are not based on the issuance of a ticket to Sloup, nor on the regulation of the location of individual crabbing and fishing pots belong to Sloup. If the location of individual pots or the issuance of the initial ticket for failure to remove his fishing equipment were solely at issue in this case, Engquist protection might apply. However, the entire theory upon which this case was based was that the defendants implemented a ban on plaintiffs that prevented them from placing fishing equipment in certain waters in the Town of Islip. The jury specifically and explicitly found that such a ban existed by answering "yes" to interrogatory question number one: "Did the plaintiffs prove, by a preponderance of the evidence, that the defendant imposed a ban on the plaintiff Frank Sloup prohibiting him from fishing in the harbor areas of the Town of Islip in 2004?" (Tr. 1569:24-1570:5.) The imposition of a ban, arbitrarily and against only one fisherman, cannot be said to be a discretionary action for which defendants are entitled to protection. Accordingly, Engquist's exemption of discretionary state actions from equal protection class of one liability is inapplicable. Thus, plaintiffs presented sufficient evidence from which the jury could have reasonably concluded that a preponderance of the evidence indicated that defendants subjected plaintiffs to differential treatment that was arbitrary or irrational and that was not issued as part of a discretionary action that was part of defendants' job duties. Defendants' motion for judgment as a matter of law on the class of one claim is accordingly denied.

c. Selective Enforcement Claim

A plaintiff bringing a selective enforcement claim must also demonstrate that he was treated differently from similarly situated individuals. See Church of the Am. Knights of the Ku Klux Klan v. Kerik, 356 F.3d 197, 210 (2d Cir. 2004) ("A selective enforcement claim requires, as a threshold matter, a showing that the plaintiff was treated differently compared to others similarly situated."). Although some district courts in the Second Circuit have stated that "the standard for `similarly situated' when bringing a selective enforcement claim is the same as in a `class of one' claim," see, e.g., Kamholtz v. Yates Cnty, No. 08-CV-6210, 2008 WL 5114964, at *5 (W.D.N.Y. Dec. 3, 2008); Dones v. City of N.Y., No. 07 Civ. 3085, 2008 U.S. Dist. LEXIS 53681, at *28 (S.D.N.Y. July 9, 2008), the Court employs the slightly different formulations set forth by the Second Circuit for each claim. As this Court's Memorandum and Order dated August 21, 2008 noted, if anything, the two standards differ in that the similarly situated standard for class of one claims is more stringent. Accordingly, because the Court concludes that there was sufficient evidence from which the jury could find that plaintiffs were treated differently from others who were similarly situated for the purposes of plaintiffs' class of one claim, that element is also met for plaintiffs' selective enforcement claim.

The second element of a selective enforcement claim requires plaintiffs to demonstrate that "such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person.'" Freedom Holdings Inc. v. Int'l Tobacco Partners, Ltd., 357 F.3d 205, 234 (2d Cir. 2004) (quoting Lisa's Party City, Inc. v. Town of Henrietta, 185 F.3d 12, 16 (2d Cir. 1999)). As discussed in this Court's August 21, 2008 Memorandum Order, there is a distinction between a "motivation to punish [in order] to secure compliance with agency objectives," and "spite, or malice, or a desire to `get' [someone] for reasons wholly unrelated to any legitimate state objective." Bizzarro v. Miranda, 394 F.3d 82, 87 (2d Cir. 2005) (quoting Esmail v. Macrane, 53 F.3d 176, 180 (7th Cir. 1995)).

There was evidence that the ordinance under which Sloup was issued a ticket had not ever been used to enforce Town fishing regulations before. Sloup testified: "I never heard of this order. I have been fishing all these years. Supposedly this ordinance was written in 1978. And 25 years later, all of a sudden, they come after fishing all these years and no one said anything to me, no one warned me or gave me any kind of heads up that I'm doing something wrong, and I wanted to get a copy to read it personally." (Tr. 710:11-18.)

Here, the jury determined that defendants acted with malice when they imposed a fishing ban on plaintiffs in the waters of the Town of Islip. The mere imposition of such a ban — which was found by the jury to exist — is sufficient to establish malice when there was no basis for banning plaintiffs from all of the waters of the Town. As discussed extensively above, there was ample evidence from which the jury could have concluded that there was a ban against plaintiffs fishing in the harbor areas of the Town of Islip. ( See, e.g., Tr. 871:4-7 ("Q: And you recall [Officer Pomroy] specifically telling you at that time that you had to remove all of your pots out of Champlin's Creek? A: Yes."); Tr. 950:19-21 ("[Officer Pomroy] told me I could not fish in the harbor areas at all, but I could fish out in the bay in the fish trap areas.").) Moreover, there was additional evidence, discussed above, from which the jury could have concluded that the ban was imposed in bad faith or based on malice. ( See, e.g., Tr. 712:1-2 (testimony by Sloup stating that, when they argued about the issuance of the ticket, Loeffler told Sloup, "that's it. Now, get everything out. You're done in the Town of Islip. Everything out.").) Sloup also testified that defendant Loeffler told him: "If it's the last thing I do, I'm going to get your buoys out of this bay." (Tr. 700:6-7.)

Officer Pomroy initially instructed Sloup to remove all of his pots from the water in June 2004. In addition to testimony regarding the directive to remove all pots from Champlin's Creek, plaintiffs presented into evidence Officer Pomroy's incident report regarding his interaction with Sloup in June 2004 regarding the pots.

Q. Would you look at defendant's exhibit E, please, which is in evidence. Would you read to the jury the factual part beginning with the word responded to above.

A. Responded to above incident location on complaint by Mr. McCall, of 171 Woodland Drive, East Islip, of crab traps and buoys posing a hazard to navigation. Upon observing 41 buoys in creek respondent Crabs Unlimited on Orowoc Creek, Islip, I issued summons A64A61790 to above for violating 37.56A of the Islip Town Code. Advised above all traps and buoys must be removed.

Q. So you actually told Frank that he had to move all traps and buoys as is indicated in here, correct?

A. As the writing says.

(Tr. 1155:11-1156:1.) There was also testimony by Captain Timothy Huss, the chief environmental conservation officer with the rank of captain of the DEC (Tr. 127:12-128:6) that Sloup's pots in Champlin's Creek were not, in fact, hazards to navigation — or at least that it is not possible that all of the pots were hazards. ( See Tr. 154:5-12, 154:21-24.) Furthermore, Sloup testified that shortly after he returned his pots to the water in October 2004, he was told to remove them again by Officer Pomroy, not because they were hazards to navigation, but because they were "on Town property." (Tr. 721:11-14.) This testimony, if deemed credible by the jury, was sufficient to establish that the defendants acted in bad faith or with malice by banning plaintiffs from fishing and crabbing in the Town of Islip harbor areas.

In sum, the Court concludes that there was sufficient evidence for a reasonable juror to conclude that plaintiffs proved, by a preponderance of the evidence, that they were treated differently from similarly situated individuals and that the differential treatment was intentional and based on malice or bad faith.

B. Motions for a New Trial Under Rule 59 1. Standard of Review

Under Rule 59(d), a court may order a new trial on its own motion. The rule provides that

The court may, on motion, grant a new trial on all or some of the issues and to any party as follows:

(A) after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court. . . .

Fed.R.Civ.P. 59(a)(1)(A). A Rule 59 motion for a new trial "ordinarily 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." Kosmynka v. Polaris Indus., Inc., 462 F.3d 74, 82 (2d Cir. 2006) (quoting Hygh v. Jacobs, 961 F.2d 359, 365 (2d Cir. 1992) (internal citation omitted)).

The trial judge has "discretion to grant a new trial if the verdict appears to [the judge] to be against the weight of the evidence." Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 165 (2d Cir. 1998). This discretion "includes overturning verdicts for excessiveness and ordering a new trial without qualification, or conditioned on the verdict winner's refusal to agree to a reduction (remittitur)." Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 433 (1996). The district court has authority to enter a conditional order of remittitur, compelling a plaintiff to choose between reduction of an excessive verdict and a new trial in at least two distinct kinds of cases:

(1) where the court can identify an error that caused the jury to include in the verdict a quantifiable amount that should be stricken, . . . and (2) more generally, where the award is `intrinsically excessive' in the sense of being greater than the amount a reasonable jury could have awarded, although the surplus cannot be ascribed to a particular, quantifiable error.

Kirsch, 148 F.3d at 165 (quoting Trademark Research Corp. v. Maxwell Online, Inc., 995 F.2d 326, 337 (2d Cir. 1993)).

Both the Town and the individual defendants argue that the jury reached a "seriously erroneous result" in awarding Sloup $1.8 million in compensatory damages. The defendants argue that this has resulted in a serious miscarriage of justice.

2. The Town's Rule 59 Motion

The Town moves for a new trial under Rule 59 based, in part, on the same arguments it raises in its motion for judgment as a matter of law. To the extent that the Town argues that a new trial is warranted based on plaintiffs' failure to prove the existence of a municipal policy or custom or the plaintiffs' failure to demonstrate policymaker liability, the Town's motion is denied for the same reasons that its Rule 50 motion fails.

The Town also argues that jury note number five indicates the jury's basis for awarding such large compensatory damages. That note read, "we need clarification. What is the Town of Islip's responsibility with regard to compensatory and punitive damages? Will the Town pay for damages regarding Pomroy and Loeffler?" (Tr. 1563:16-20.) At that point, the Court instructed the jury that an inquiry regarding who would ultimately pay the damages was inappropriate. ( See Tr. 1563:21-1564:1 ("The answer to that is, it is irrelevant to your consideration. The issue of whether or not the Town of Islip is responsible for payment for any damages regarding Pomroy or Loeffler is irrelevant and not something that the jury can consider in connection with its deliberations.").) Although the Town makes much of the fact that "[t]he jury never inquired about the Town's responsibility absent the conduct of Loeffler and Pomroy," this does not conclusively demonstrate that the jury found the Town liable solely based on the actions of the individual defendants. The jury verdict specifically found that the "plaintiffs prove[d] by a preponderance of the evidence that the violation of plaintiffs' constitutional right(s) was pursuant to a long-standing custom or practice of the Town of Islip and that the policymakers approved or were deliberately indifferent to the custom or practice." ( See Verdict Sheet at 3.) The jury further found that "plaintiffs prove[d] by a preponderance of the evidence that defendant Loeffler was a policymaker for the Town of Islip and that the violation of plaintiffs' constitutional right(s) was caused by the actions of defendant Loeffler acting in his policymaking capacity for the Town of Islip." ( Id. at 4.)

Nonetheless, as discussed infra, the Court concludes that the jury verdict of $1.8 million in compensatory damages "shocks the judicial conscience."

3. Individual Defendants' Rule 59 Motions

The individual defendants move for a new trial under Rule 59(a) on substantially the same grounds upon which they move for judgment as a matter of law. The individual defendants point to several pieces of testimony that were favorable to them: specifically, they point to the testimony of Captain Huss that the DEC does not regulate the placement of eel pots and crab traps, testimony by several witnesses who agreed that fishing buoys and crab traps in the harbor areas could be hazardous to boaters, and testimony by several witnesses that there was no ban against plaintiffs in the harbor areas. (Defs.' Mot. at 13-15.) However, defendants' argument is misplaced. As discussed extensively above, there was sufficient evidence to support the jury's findings that (a) defendants imposed a ban on plaintiff Frank Sloup prohibiting him from fishing in the harbor areas of the Town of Islip in 2004; (b) that plaintiffs' equal protection rights were violated under a "class of one" theory; (c) that plaintiffs' equal protection rights were violated by the selective enforcement of Town laws against plaintiffs; and (d) that plaintiffs' substantive due process rights were violated by defendants. Although the Court recognizes that there was testimony favorable to defendants, "[a]s a matter of law, the credibility of witnesses is exclusively for the determination by the jury." Cameron v. City of N.Y., 598 F.3d 50, 61 (2d Cir. 2010) (citing United States v. Forrester, 60 F.3d 52, 63 (2d Cir. 1995)); see also Elyse v. Bridgeside Inc., 367 F. App'x 266, 268 (2d Cir. 2010) ("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,' or `a miscarriage of justice.' In making its determination, however, the court must refrain from invading the province of the jury to evaluate the credibility of the witnesses." (internal citation omitted)). Thus, it was well within the province of the jury to decide which testimony to rely upon in reaching its ultimate determination of liability.

C. Motion to Set Aside the Verdict

Both the Town and the individual defendants have moved, under Rule 59 of the Federal Rules of Civil Procedure, to set aside the $1.8 million in compensatory damages awarded by the jury as excessive. The individual defendants also have moved to set aside the the award of $150,000 in punitive damages against each defendant as excessive.

In his summation, plaintiffs' counsel asked the jury to award three categories of damages. First, plaintiffs' counsel sought "a couple of hundred thousand" dollars based upon lost income during and after the fishing ban which, according to the plaintiffs' evidence, existed from approximately June 2004 until November 2004. Second, plaintiffs' counsel sought the equity lost in the property at 25 Degnon Avenue (bought by the plaintiff to establish his new business) when that property was the subject of a foreclosure sale in 2007. In particular, counsel argued that, by banning him from certain waters for several months in 2004 and depriving him of income, defendants had caused the foreclosure on that property that began in 2005 and was completed in 2007. Counsel estimated to the jury in his summation, without specific reference to the record, that the equity in that property was at least $550,000. Finally, plaintiffs' counsel sought an unspecified amount of non-economic damages — for substantial loss of enjoyment of life, inconvenience, and general suffering — because of the fishing ban. In particular, counsel sought compensation for Frank Sloup having to move to Maryland in 2007 and being apart from his wife during that period as they sought new employment after his foreclosure and bankruptcy.

During the trial, plaintiff Sloup was asked on direct examination to summarize the compensation he was seeking in the lawsuit. In response, Sloup requested categories of damages even broader than those being sought by plaintiffs' counsel: "I'm seeking compensation for loss of my business and home, loss of my customers, loss of business that took me 20 years to build to establish the customer base, loss of having to be away from my wife for six months because we couldn't afford to live together." (Tr. 775:20-24.)

In the post-trial opposition to defendant's motion, plaintiffs' counsel attempts to argue that the economic losses suffered by plaintiffs totaled a minimum of $1.2 million dollars, and a maximum of $1.8 million, based upon the following breakdown:

As to economic loss, the Plaintiffs suffered losses in income spanning multiple years as a direct result of the Defendants' actions. As a direct result of his loss of income, Mr. Sloup eventually lost his commercial property, located at 25 Degnon Blvd., with a market value of approximately $1.3 and $1.9 million dollars, subject to a mortgage of $650,000. In 2004, Plaintiffs' gross income was reduced $111,232 as compared to 2003. In 2005, Plaintiffs' gross income was reduced $159,826, as compared to 2003. In 2007, Plaintiffs' gross income was reduced $300,057 as compared to 2006, as a direct result of losing his commercial property located at 25 Degnon Blvd., the location out of which he conducted business. Additionally, Plaintiffs' commercial equipment were rendered valueless as a result of the foreclosure. The damages detailed above, at a minimum, approximate $1.2 million, and a maximum, not even considering equipment and other losses, approximate damages of $1.8 million.

(Pl.'s Opp. at 15-16.)

As discussed in detail below, the Court concludes that, in certain instances, the categories of compensatory damages sought by plaintiffs at trial (and which are used in the post-trial submissions to argue that the $1.8 million award was not excessive) are not recoverable as a matter of law and, in other instances, the particular amounts sought were unsupported by the record. First, with respect to lost income, plaintiff as a matter of law is not entitled to lost gross income; rather, he is only entitled to lost net income, or profits. Nevertheless, both before the jury and in the post-trial submissions, plaintiffs argue for loss of gross income. Moreover, plaintiff seeks years of lost income into 2007, even though it is undisputed the fishing ban ended in 2004 and plaintiff had one of his best years in the fishing business in 2006. There is an insufficient evidentiary basis in the record for a rational jury to find any loss of income in subsequent years after 2004 was proximately caused by the fishing ban in 2004. Thus, the amount of lost income sought during the trial was grossly in excess of any rational number that could be awarded by the jury and cannot justify the $1.8 million verdict. Second, there is a significant question, given the lack of expert testimony and the evidence in the record as a whole, as to whether a rational jury could conclude that the foreclosure sale of 25 Degnon Avenue that took place in 2007 was proximately caused by the fishing ban that existed for several months in 2004. However, the Court need not decide that issue for purposes of this motion because, even assuming arguendo that legal causation was proven, the jury had no basis in the record to determine the amount that plaintiff lost on the property given that there was no evidence regarding the results of the sale of the property in foreclosure in 2007 or plaintiff's actual loss from such sale. Thus, the jury would have had to speculate as to the value of the property and the amount of plaintiff's actual loss with respect to the property following his bankruptcy and the foreclosure sale. Third, although plaintiff could recover for non-economic damages in terms of loss enjoyment of life from not being able to fish during the fishing ban in 2004, plaintiff cannot recover for non-economic losses in terms of having to move to Maryland in 2007 and being separated from his wife after the foreclosure on his property. No rational jury could conclude that those damages in 2007 were proximately caused by the fishing ban in 2004. In short, the jury was left with a demand for damages that was grossly in excess of what the law and the evidence would rationally support. The result was a verdict in an amount that shocks the conscience of the Court and is clearly a gross miscarriage of justice. Moreover, this grossly excessive verdict cannot be corrected with remittitur under the circumstances of the instant case because of the lack of a special verdict on damages and the Court's conclusion, based upon the grossly excessive size of the award and the erroneous arguments on damages that were made to the jury, that error infected the jury's entire determination of compensatory damages. Thus, there must be a new trial on compensatory damages. Finally, although there was sufficient evidence for the issue of punitive damages to go to the jury, the new trial should include a new trial on punitive damages because, inter alia, the issue of punitive damages in this particular case — both as to whether there should be an award of punitive damages and as to the amount — is so interwoven with the issue of compensatory damages that it was likely tainted by the grossly erroneous calculation of compensatory damages.

The Court notes that, even plaintiffs' above-referenced calculation in the post-trial submission to justify the verdict — which erroneously uses gross income instead of net income and contains other amounts that cannot be legally and/or factually supported — still only reaches $1.2 million in compensatory damages, well below the $1.8 million in compensatory damages awarded by the jury.

(1) Applicable Standard

It is well settled that, pursuant to Rule 59 of the Federal Rules of Civil Procedure, a trial judge has the discretion to grant a new trial if the verdict is against the weight of the evidence, and "[t]his discretion includes overturning verdicts for excessiveness and ordering a new trial without qualification, or conditioned on the verdict winner's refusal to agree to a reduction (remittitur)" Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 433 (1996); accord Rangolan v. Cnty. of Nassau, 370 F.3d 239, 244 (2d Cir. 2004); Bracey v. Bd. of Educ. of City of Bridgeport, 368 F.3d 108, 117 (2d Cir. 2004). As the Second Circuit has instructed, "[w]here there is no particular discernable error, we have generally held that a jury's damage award may not be set aside as excessive unless `the award is so high as to shock the judicial conscience and constitute a denial of justice.'" Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 165 (2d Cir. 1998) (quoting O'Neill v. Krzeminski, 839 F.2d 9, 13 (2d Cir. 1988) (internal quotations omitted)). However, if the trial judge identifies a specific error, "the court may set aside the resulting award even if its amount does not `shock the conscience.'" Id. In reviewing a claim that a jury's damages award was excessive, the court must "accord substantial deference to the jury's determination of factual issues." Martell v. Boardwalk Enters., 748 F.2d 740, 750 (2d Cir. 1984). Moreover, "the trial judge is not called upon to say whether the amount is higher than he [or she] personally would have awarded." Dagnello v. Long Island R.R., 289 F.2d 797, 806 (2d Cir. 1961). Nevertheless, the Second Circuit has emphasized that "[w]hile a jury has broad discretion in measuring damages, it `may not abandon analysis for sympathy for a suffering plaintiff and treat an injury as though it were a winning lottery ticket.'" Scala v. Moore McCormack Lines, Inc., 985 F.2d 680, 684 (2d Cir. 1993) (quoting Nairn v. Nat'l R.R. Passenger Corp., 837 F.3d 565, 568 (2d Cir. 1988) (internal quotation marks and citation omitted)). In other words, "an upper limit, and whether that has been surpassed is not a question of fact with respect to which reasonable [persons] may differ, but a question of law." Dagnello, 289 F.2d at 806.

(2) Analysis of Compensatory Damages

As set forth in detail below, the Court concludes that the jury's compensatory damages award of $1.8 million in this case was excessive as a matter of law and warrants a new trial on the issue of damages. First, there was discernable error during the trial with respect to the issue of damages based upon the fact that plaintiffs' counsel urged the jury to award (1) certain categories of damages for which legal causation was lacking, and (2) amounts of damages in certain categories that were unsupported by the record and would require sheer speculation and guesswork by the jury. Second, even apart from these discernable errors, the Court finds that the award is so high that it shocks the judicial conscience and constitutes a denial of justice. Thus, the award of compensatory damages must be set aside.

(a) Lost Profits

Whereas pain and suffering cannot be quantified, economic loss must be established with reasonable certainty. See, e.g., Tassone v. Mid-Valley Oil Co., 773 N.Y.S.2d 744, 746 (App. Div. 2004); Faas v. New York, 672 N.Y.S.2d 145, 147 (App. Div. 1998). "Under New York law, it is `well established' that `[t]he rule of certainty as applied to the recovery of damages does not require mathematical accuracy or absolute certainty or exactness, but only that the loss or damage be capable of ascertainment with reasonable certainty.'" Okraynets v. Metro. Transp. Auth., 555 F. Supp. 2d 420, 444 (S.D.N.Y. 2000) (quoting Reichman v. Warehouse One Inc., 569 N.Y.S.2d 452 (App. Div. 1991)). In essence, economic damages need not be exact, but they cannot be speculative. Id. (citing Stringile v. Rothman, 530 N.Y.S.2d 838 (App. Div. 1988)).

There is no question that Sloup would be entitled to recover lost income to his business that resulted from the ban on fishing and crabbing in the harbor areas. However, it is axiomatic that plaintiff is entitled to loss of net income, not gross income. Nevertheless, in his summation, plaintiff's counsel asserted that the jury should award "a couple of hundred thousand in lost income." Specifically, he argued:

We also have at least a couple hundred thousand in lost income. And I ask you to look at the charts. The seven of you are smarter than I am, and I'm not that great at economics either, but you will see a couple of hundred thousand dollars in losses as a result of what they did to him.

(Tr. 1425:7-12.) Although not explicitly alluded to in the summation, this was based upon counsel's view that Sloup was entitled to multiple years of losses in gross income from 2004 to 2007. This is consistent with the post-trial submission which suggests the same: "In 2004, Plaintiffs' gross income was reduced $111,232 as compared to 2003. In 2005, Plaintiffs' gross income was reduced $159,826, as compared to 2003. In 2007, Plaintiffs' gross income was reduced $300,057 as compared to 2006, as a direct result of losing his commercial property located at 25 Degnon Blvd., the location out of which he conducted business." (Pl. Opp. at 15.) Similarly, Sloup testified to losses of gross income in response to questions during the trial. In particular, by Sloup's own admission, his gross losses were "about $115,000." (Tr. 729:19.) "Did you determine at the end of 2004 that you had a loss in gross sales from the previous year? A. Yes. Q. What was the approximate amount of that loss? A. About $115,000." (Tr. 729:15-18.) This was a loss in gross sales that does not take into account plaintiffs' expenses. ( See Tr. 962:6-15.)

Thus, although plaintiffs suggest that the jury could have rationally awarded several hundreds of thousand of dollars in damages in lost profits, that assertion is based on the erroneous premise that (a) one looks to lost gross profits rather than net profits, and (b) plaintiff would be entitled to loss in profits not only for the months in 2004 during which the ban is in place but also for lost profits for years 2005 and 2007, when compared to profits in 2003 before the ban. Both of those positions asserted by plaintiffs are incorrect as a matter of law. As noted above, the measure of damages is clearly net income (or profits), rather than gross income. See, e.g., Martin Motor Sales, Inc. v. Saab-Scania of Am., Inc., 452 F. Supp. 1047, 1053 (S.D.N.Y. 1978) ("The general rule is that the measure of `lost profits' is the net profit which is lost." (collecting cases)). Plaintiffs' gross income versus net income differential for each year was as follows:

Year Gross Net 2002 $312,000 $97,781 2003 $326,000 $64,572 2004 $215,000 $33,000 2005 $166,000 $12,000 2006 $330,000 $94,000 Based upon the evidence at trial, even in most profitable years, plaintiffs' net income was still less than one-third of their gross. Thus, construing all the facts in a light most favorable to plaintiffs, even assuming that gross sales lost from the year 2004 were $115,000, as plaintiff testified, plaintiffs' net lost income would be roughly $36,050. Plaintiffs put forward no other evidence regarding lost profits. Any other compensatory award for plaintiffs' business losses would depend "entirely on speculation of a particularly dubious kind." Trademark Research Corp. v. Maxwell Online, Inc., 995 F.2d 326, 333 (2d Cir. 1993). Neither this Court nor the jury may assume, without proffered evidence, that plaintiffs' business would have been more lucrative in 2004 than it was in prior or subsequent years. In Trademark Research Corp., the Second Circuit upheld the dismissal of part of a plaintiff's lost profits claim because it was not supported by evidence in the record. Id. at 329. The Circuit noted that the plaintiff, "assumed an abrupt expansion of the market for trademark search services, assumed that TRC would reverse the long decline in its market share, assumed that TRC's historically aggressive competitors would take no measures to counter TRC's ascendancy, and predicted which choices customers would make among a variety of new and old search technologies — all of these assumptions reduced to speciously exact dollar amounts and spun out to the year 1998." Id. at 333. Here too, to assume that plaintiffs would have earned greater profits in 2004 than in any prior or subsequent year would be to make assumptions that plaintiffs' business would have grown significantly in that year. There was no evidence presented at trial that would justify reaching such a conclusion.

Similarly, to the extent plaintiff suggests that the jury could have rationally awarded plaintiff any lost profits in 2005 through 2007, that argument is similarly flawed. The fishing ban ended in 2004, and plaintiff began fishing again. There was no evidence from which the jury could have rationally concluded that any profits that were lost in 2005 through 2007 were proximately caused by a fishing ban that expired in or about November 2004. Although plaintiff made a conclusory reference to not being able to buy new traps in 2005 because of a shortage of money, that vague statement, in the absence of expert testimony or documentation, would be insufficient for the jury to rationally conclude that his net profits in 2005 were negatively impacted by the fishing ban that ended in 2004 (or what the amounts would be). Similarly, any residual impact clearly ended by 2006 when plaintiff made net profits of $94,000, which was his best year since he made $97,781 in 2002. Nevertheless, in an effort to justify the $1.8 million compensatory award, plaintiffs inexplicably suggest that the jury could have awarded over $300,000 in gross income in 2007.

In sum, although plaintiff's counsel argued that the jury could rationally award lost gross income for the years 2004, 2005, and 2007, the Court concludes that the jury could only rationally award net income (or profits) for 2004 which, by any measure, would result in a lost profits amount of less than $50,000.

(b) Property at 25 Degnon Avenue

In his summation, plaintiff's counsel specifically argued that Frank Sloup should be entitled to at least $550,000 in equity for the building that was lost in foreclosure:

What I'm asking you to do is send a message to Mr. Loeffler and to the Town of Islip. But the only message you can really send, besides ruling in Frank's favor with respect to the issues the judge will present to you, the questions that he will ask you, is to give him what you consider to be fair and just compensation. We're not asking that you make him a billionaire. We are asking you to consider that that building which he refinanced for $650,000 in 2002 was appraised for a million dollars in connection with that closing and that Mr. Mattimore testified about a 2007 offer for a building of $1.3 million. Even if you assume interest and penalties because of the foreclosure that he owes the bank $750,000, you have got a $550,000 in equity in that building that he has lost, we contend because of what Mr. Loeffler and the Town of Islip did to him. $550,000 in equity.

(Tr. 1424:15-1425:6.)

As a threshold issue, there is a significant issue as to whether a rational jury, given plaintiff Frank Sloup's substantial financial problems prior to the ban, could conclude that the fishing ban for several months in 2004 (and the loss of less than $50,000 in net income) proximately caused the foreclosure on the property that began in 2005 and took place in 2007.

For example, Sloup testified, among other things, to the following: (1) when Sloup initially purchased the property for $550,000, he thought renovations to the property would cost $300,000, but such renovations ended up costing approximately $800,000; (2) after refinancing in 2002, plaintiff fell behind in his mortgage in 2003; (3) at the time of the ban in 2004, he was already behind on his mortgage payments; (4) the bank threatened to foreclose on the property; and (5) in the beginning of 2005, the bank started foreclosure on the property. (Tr. 741-48; 834-36; 897-98.) In fact, plaintiffs' counsel acknowledged in his summation, "There is no question he [Frank Sloup] took on too much debt. And what happened to him financially is not solely the responsibility of the Town of Islip or Mr. Loeffler. I never said that. They kicked this guy when he was down. This was the last straw. That's what this is about." (Tr. 1479:3-8.) Although counsel suggests that the ban was the proximate cause because it was the "last straw," there was no expert testimony, or detailed evidentiary basis, to explain why that was so. Moreover, even if the foreclosure was initiated in 2004 because of the lost net income of less than $50,000 than resulted from the ban, there was no testimony explaining why from 2005 to 2007 (during which there was no ban) plaintiff was unable to rectify the foreclosure situation before the actual sale of the property in 2007. See, e.g., Point Prods. A.G. v. Sony Music Entm't, Inc., 215 F. Supp. 2d 336, 345-46 (S.D.N.Y. 2002) (granting motion in limine to preclude evidence of damages at trial related to bankruptcy because, given the absence of expert testimony that plaintiff would have remained solvent absent the breach, damages were "highly speculative and insufficiently reliable to allow a jury to consider it").

In short, there is a significant issue as it relates to proximate cause regarding the foreclosure of the property at 25 Degnon Avenue. See, e.g., Point Prods. A.G., 215 F. Supp. 2d at 344 ("[I]n order to show that [defendant's] breach caused [plaintiff's] bankruptcy, plaintiff must establish a direct causal relationship. In order to hold [defendant] liable for the damages that occurred post-bankruptcy, [plaintiff] would have to show either that [defendant's] breach alone would have been sufficient to force the company to declare bankruptcy or that [plaintiff] would not have had to declare bankruptcy but for [defendant's] breach. If [plaintiff's] bankruptcy was inevitable regardless of [defendant's] breach, then [plaintiff] cannot be held responsible for that injury. The burden on [plaintiff] is to prove that [defendant's] actions forced [plaintiff] to file for bankruptcy protection.") (citation omitted); see also Kiswani v. Phoenix Sec. Agency, Inc., 247 F.R.D. 554, 561 (Bankr. N.D. Ill. 2008) ("Plaintiff claims that the arrest and prosecution caused his company, NSA, to lose a five-year contract for security services with the CTA. . . . This claim is totally speculative. Plaintiff has put forth no evidence to demonstrate the arrest and prosecution was the legal cause of his inability to secure this contract, nor has he shown that this was a foreseeable consequence to his arrest and prosecution."); In re Estrada, 349 B.R. 859, 866 (N.D. Ala. 2006) ("The Plaintiff also testified that his mortgage balance increased as a result of the delayed closing caused by the Defendant. . . . However, as discussed above, we do not know if the purchase[r] withdrew his offer under the first contract and the closing was delayed because of the Defendant's conduct or if it was because of other reasons not attributable

to the Defendant. . . . Accordingly, the Court will not award damages for the delay in closing between the first contract and the second contract. To do so would be too speculative based on the evidence presented.").

However, the Court need not decide this causation issue because, even assuming arguendo that causation was proven, there was an insufficient evidentiary basis from which the jury could determine the plaintiff's actual loss with respect to the property after his bankruptcy and the foreclosure on the property. First, there was insufficient evidence from which the jury could actually determine the value of the property at the time of the foreclosure. Plaintiffs offered no testimony regarding the value of the property at the time of foreclosure, other than two offers to purchase the property (prior to the foreclosure) for $1.2 and $1.4 million in 2006, but those offers did not come to fruition. Those offers (which were not consummated in a sale) are insufficient evidence from which a rational jury could determine the value of the property. Moreover, even if the value of the property could be determined, there was no evidence in the record from which the jury could determine what the actual loss to plaintiff was after the bankruptcy and foreclosure sale. In other words, there was a substantial mortgage remaining on the property, but the jury did not have that amount before it. In the post-trial submissions, there is documentation that, at the time of Sloup's bankruptcy filing, the amount of the mortgage was $631,803.20 (Ex. D to Individual Defs.' Post-Trial Mot.) Moreover, the post-trial submissions note that, when the property was sold at auction, the bank purchased it back for the price of the mortgage. However, neither the amount of the mortgage, nor the sale price at the time of foreclosure, was presented to the jury at trial. In short, there was no evidentiary basis from which the jury could rationally determine the value of the property, or the actual loss of the plaintiffs from the foreclosure sale of the property in 2007. See generally Bankers Trust Co. v. Rhoades, 859 F.2d 1096, 1106 (2d Cir. 1988) (given ongoing bankruptcy proceedings, "at this time, it is impossible to determine the amount of damages that would be necessary to make plaintiff whole, because it is not known whether some or all of the fraudulently transferred funds will be recovered by the corporation. Should they be recovered, [plaintiff] would benefit along with BAC's other creditors and its injury would decrease. As a result, the damages in this area are speculative and unprovable; any claim for relief based on the lost debt injury must therefore be dismissed without prejudice." (quotations and citations omitted)); Tatum v. Jackson, No. 06-cv-4290 (PGG) (GWG), 2009 WL 3633975, at *12 (S.D.N.Y. Nov. 3, 2009) ("With respect to medical expenses, it would have been unduly speculative for the jury to award [plaintiff] anything more than nominal expenses associated with transportation to medical appointments. . . . The only evidence [plaintiff] offered with respect to his actual medical expenses, however, was his testimony that his medical bills were `somewhere in the hundred thousand dollars area' and were paid for by Medicaid. [Plaintiff's] testimony that he believed he `would have to reimburse the state' for the Medicaid payments if he recovered money in a lawsuit was speculation and the jury could not reasonably have relied on it to find that [plaintiff] had actually suffered a compensable financial loss in the amount of $100,000 due to medical expenses.").

Moreover, there is no possible way that the jury could have reached $1.8 million in compensatory damages without awarding substantial compensatory damages in connection with the sale of this property. Thus, there is a likelihood, given this absence of proof and the large amount of the compensatory award, that the jury may have awarded plaintiffs more than $1 million in connection with an alleged loss on the sale of that property which, given that the mortgage was for over $600,000, would result in an unjustified windfall to plaintiffs. However, at a minimum, this category of damages cannot support the $1.8 million award because an evidentiary basis did not exist from which the jury could rationally determine the value of the property and amount of the loss.

Although never argued to the jury, plaintiffs suggest in the post-trial submissions that the jury also could have properly considered, in determining the amount of compensatory damages, the $800,000 expended by Sloup in renovations and equipment related to 25 Degnon Avenue. However, even if the jury did consider and include that category of damages on their own, there was an insufficient evidentiary basis for the jury to rationally consider and calculate those damages. In particular, the only evidence regarding the nature of those renovations was a cursory summary provided during Sloup's testimony — with such costs including eel tanks, an outside freezer, installation of a deck, new windows, etc. (Tr. 941-44.) Thus, it is unclear in the record as to the full extent (and individual costs) of these renovations. More importantly, although plaintiffs' counsel argues in a conclusory fashion in the post-trial submission that the equipment was rendered "valueless," it is entirely unclear from the record before the jury what happened to the equipment in terms of whether it was sold and, if so, what the loss amount was to Sloup. Therefore, there was no basis in the record from which the jury could have rationally determined the amount of any such losses related to the renovations and equipment; rather, the jury would have had to engage in speculation and guesswork to include this category of damages. Accordingly, it cannot support the $1.8 million award.

(c) Non-Economic Damages

In his summation, plaintiff's counsel specifically argued to the jury that Frank Sloup should be compensated for the emotional distress in 2007 (three years after the fishing ban in question), which counsel contended flowed from the eventual foreclosure on the property in 2007:

[Frank Sloup] moves to Maryland. He's separated from Tracy. He does some landscaping and some fishing in Maryland. She waitresses in Florida. And according to this they make virtually no money. Frank described the horrible conditions under which he lived in Maryland. And I'm not going to repeat them and describe what it was like being separated from her. But I submit to you that they should be compensated for the intentional acts of Mr. Loeffler and the Town of Islip in forcing this situation, in forcing this foreclosure, the eventual, although it took two years, foreclosure of the property, getting locked out of their premises and having to try to do something completely different when he is past 60 years of age.

(Tr. 1422:2-15.) This category of damages was subsequently repeated later in the summation: "[Y]ou're entitled to compensate Mr. Sloup for what they did to him causing him to lose his business, move to Maryland, have to live under those horrible conditions, and just for the fact that he is out on the water at his age, after so many years, fishing for a living, starting at 5 o'clock in the morning." (Tr. 1425:13-18.)

A plaintiff may be entitled to damages for loss of enjoyment of life and other intangible injuries. Under § 1983, compensable injuries may include "not only monetary losses such as out-of-pocket expenses, but also injuries such as personal humiliation and mental anguish." Dejesus v. Vill. of Pelham Manor, 282 F. Supp. 2d 162, 177 (S.D.N.Y. 2003) (citing Walz v. Town of Smithtown, 46 F.3d 162, 169-70 (2d Cir. 1995); Henry v. Gross, 803 F.2d 757, 768 (2d Cir. 1986)). Non-economic damages, such as shock, anxiety, fear, and humiliation have been determined to be sufficient to establish compensatory damages in civil rights cases. See id. Notwithstanding the availability of such damages, the Second Circuit has held that emotional distress damages can not be established by mere subjective statements by the plaintiff, without corroboration, when the plaintiff does not indicate any physical manifestations of distress. See Annis v. Cnty. of Westchester, 136 F.3d 239, 249 (2d Cir. 1998). In Dejesus, the court expounded upon the interpretation of Annis within the Second Circuit:

District courts in this Circuit interpreting Annis have generally understood the Second Circuit's holding as not requiring a specific kind of support to justify emotional distress damages; but rather, have read it narrowly in the context of the Second Circuit's other precedents to hold that the holding in Annis is based on the particularly minimal evidence provided by the plaintiff in that case. See Mahoney v. Canada Dry Bottling Co. of N.Y./Coors Distrib. Co. of N.Y., No. 94 Civ. 2924, 1998 WL 231082, at *5 (E.D.N.Y. May 7, 1998) ("The Court is not convinced that Annis should be read so broadly as to preclude any award of compensatory damages for mental anguish absent corroborating testimony."); Uddin v. N.Y. City/Admin. for Children's Servs., No. 99 Civ. 5843, 2001 WL 1512588, at *6 (S.D.N.Y. Nov. 28, 2001) ("[T]he Annis Court itself indicated that its holding was based on the nature of plaintiff's testimony, rather than the absence of corroboration, explaining that `her testimony fails to establish that she suffers from any concrete emotional problems.'"). Moreover, district courts have held that as long as testimony points to concrete emotional problems, such testimony may suffice to justify emotional distress damages. See Uddin, 2001 WL 1512588, at *6 (plaintiff's testimony relating concrete emotional problems such as depression and malaise sufficient to justify award for compensable damages); Mahoney, 1998 WL 231082, at *5 (testimony regarding anxiety and sleeplessness for a period of three months, with some corroboration by other witnesses, sufficient to justify award of compensatory damages).

282 F. Supp. 2d at 177-78. "Despite . . . narrow interpretations of Annis, it is still the case that in order to justify recovery for emotional distress, [p]laintiffs must present sufficient evidence that they experienced `concrete emotional problems' and mere subjective statements by a plaintiff concerning feelings of anguish or humiliation, without any physical effects of such distress, or corroborating evidence or other supporting

evidence, are insufficient." Id. at 178 (citing Annis, 136 F.3d at 249); see also Price v. City of Charlotte, N.C., 93 F.3d 1241, 1254 (4th Cir. 1996) ("In this appeal, we express the same trepidation as our sister circuits regarding conclusory testimony with respect to the sufficiency of the evidence supporting an award of compensatory damage based on emotional distress for a constitutional violation.").

This Court instructed the jury regarding this during the charge:

With respect to proximately caused injuries, compensatory damages can include any economic injury sustained by plaintiffs, as well as any suffering, inconvenience, loss of enjoyment of life, and other non-monetary losses that plaintiffs prove that were experienced as a consequence of the actions of a defendant.

There is no requirement that evidence of the monetary value of such intangible things such as injury, pain, or suffering be introduced into evidence. There is no exact standard for figuring the compensation to be awarded for these types of damages, and no expert testimony need be introduced. Any award you make should be fair in light of the evidence presented at trial.

(Tr. 1522:16-1523:4.)

As noted above, plaintiffs' counsel argued to the jury that plaintiffs were entitled to damages for loss of enjoyment in 2007, when plaintiff was out of business and did not have a premises on which to conduct his business. ( See Tr. 1421:20-22:15.) During that period, Sloup moved to Maryland and was separated from his wife. He worked as a landscaper and did "some fishing in Maryland," while his wife "waitresse[d] in Florida." (Tr. 1422:3-4.) Specifically, plaintiffs' counsel argued that the jury was "entitled to compensate Mr. Sloup for what they did to him in causing him to lose his business, move to Maryland, have to live under those horrible conditions, and just for the fact that he is out on the water at his age, after so many years, fishing for a living, starting at 5 o'clock in the morning." (Tr. 1425:13-18.) However, these damages in 2007 are too attenuated to have been proximately caused by the ban in 2004.

Since civil actions under § 1983 "are analogous to state common law tort actions, serving primarily the tort objective of compensation," Townes v. City of N.Y., 176 F.3d 138, 146 (2d Cir. 1999) (citation omitted), the type of damages available for a violation of § 1983 is "`determined according to principles derived from the common law of torts.'" Id. at 147-48 (quoting Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 307 (1986)). Thus, "[t]o recover compensatory damages under Section 1983, a plaintiff must prove that his injuries were proximately caused by the constitutional violation." Tatum v. Jackson, 668 F. Supp. 2d 584, 598 (S.D.N.Y. 2009) (quoting Gibeau v. Nellis, 18 F.3d 107, 110 (2d Cir. 1994) (internal citation omitted)). A plaintiff must "allege a tangible connection between the acts of [the] defendant[s] and the injuries suffered." Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). The Court concludes that plaintiffs have not demonstrated a tangible connection between the constitutional violations by defendants in 2004 and Sloup's living situation in 2007. As a threshold matter, the Court notes that in 2006, plaintiffs had their most profitable year, earning over $330,000 in gross income. ( See Tr. 779:5-25; see also Defs.' Ex. C, Tax Summary Chart.) Plaintiffs' counsel noted this during his summation: "In `06 he is back in business. He grosses $330,000 and his net is higher than ever or just about as high as it has ever been." (Tr. 1421:6-8.) Am. Tissue, Inc. v. Donaldson, Lufkin Jenrette Sec. Corp., 351 F. Supp. 2d 79, 93 n. 14 (S.D.N.Y. 2004) ("DLJ observes that these changes, far from injuring ATI, helped it, for `an elementary mathematical calculation demonstrates that the difference between $185 million at 11.5% and $165 million at 12.5% resulted in a net annual savings to ATI of $650,000. Moreover, . . . [DLJ] raised $190 million in total for ATI (not just $165 million), of which $25 million was not subject to debt service requirements.' These observations cast further doubt on ATI's claim that DLJ's last-minute changes to the bond offering proximately caused its bankruptcy, or indeed, injured it at all.").

Plaintiffs did not present evidence from which a rational jury could conclude that the ban on his fishing and crabbing in the harbor areas in 2004 proximately caused these personal hardships following his bankruptcy and foreclosure. "Damages must be more than a mere speculative loss, and must be shown to have been proximately caused." Sands v. Abelli, 290 F. Supp. 677, 681 (S.D.N.Y. 1968). Thus, plaintiff was not entitled to damages related to his bankruptcy or loss of enjoyment for the period in 2007, and no amount should be factored into the compensatory damages award for those items.

Although Sloup could recover for non-economic damages (such as emotional distress or loss of enjoyment of life) that occurred during the several month fishing ban in 2004, there was virtually no testimony or other evidence during the trial that would support such an award. First, there was no testimony that Sloup could not fish at all during the ban. To the contrary, there was testimony at trial that Sloup continued to fish in other areas despite the ban. ( See, e.g., Tr. 727:3-11 ("Q. What did you do to earn a living in the fall of 2004 after Mr. Remmer had the meeting with the representatives of the Town and said you can only fish in the southernmost portion of the Connetquot River, how did you make a living? A. I was fishing out in the bay doing the best I could under the circumstances in the fall. Q. Was the bay productive in the fall of `04? A. Yes."); see also Tr. 1408:15-17 ("He's obviously out of the harbor areas in June and through July. He is fishing in the bay during the summer.").) Thus, plaintiffs did not attempt to argue that Sloup suffered any intangible injury or loss of enjoyment during that period of the fishing ban in 2004. In fact, plaintiff explicitly stated during trial that the only non-economic damages he was seeking related to the period of time in 2007 when he lived and worked in Maryland, and was forced to be separated from his wife during that period:

Q. Now, can you summarize what compensation, not the numbers because you've explained the tax returns and the decrease in your business, what the compensation is it that you're seeking here?

A. I'm seeking compensation for loss of my business and home, loss of my customers, loss of business that took me 20 years to build to establish the customer base, loss of having to be away from my wife for six months because we couldn't afford to live together.

(Tr. 775:16-24.) Similarly, plaintiffs' counsel's closing statement did not argue that plaintiff should be awarded damages for loss of enjoyment from fishing during the period of the ban. In short, the jury could not rationally award any significant level of damages for non-economic damages during the fishing ban and, as a matter of law, could not award such damages for events in 2007 which were not proximately caused by the constitutional violation in 2004. See, e.g., Worsham v. City of Pasadena, 881 F.2d 1336 (5th Cir. 1989) (affirming trial court's decision to grant new trial in § 1983 lawsuit because of excessive damages and noting the following: "The only evidence of any actual damages upon which an award could have been based was Worsham's own highly speculative and unsupported testimony regarding his emotional distress and ruined reputation. After reviewing the evidence that went to the jury, [the district judge] concluded that it simply could not support a $400,000 award of actual damages.").

* * *

In sum, the Court concludes that the compensatory damages awarded by the jury — $1.8 million — was grossly excessive, shocks the judicial conscience, and was a clear miscarriage of justice. Plaintiffs encouraged the jury to award damages for losses in gross income for multiple years, even though only net income for the period of the ban in 2004 was warranted under the law and the evidence. Plaintiffs further urged the jury to award compensatory damages for losses on the sale of the property at 25 Degnon Avenue even though sufficient evidence regarding the value of the property and the actual loss by the plaintiffs in the foreclosure was lacking in the record. Plaintiffs also argued to the jury that plaintiff should recover non-economic damages, not for hardships during the ban, but for hardships that occurred almost three years after the ban (following bankruptcy), even though such damages could not rationally have been proximately caused by the fishing ban. The cumulative result of these erroneous arguments was an irrational and grossly excessive award of compensatory damages. Even if the jury did not rely upon these arguments and there were no specific errors, the verdict is still grossly excessive and shocks the judicial conscience because, for all of the reasons discussed supra, the compensatory award cannot be justified by any rational calculation of the damages that could possibly be supported by the trial record.

The Court will now turn to an analysis as to whether the excessive award can be addressed by remittitur or whether a new trial on damages is warranted.

(3) Remittitur Issue

If the trial judge determines that the damage award is excessive as a matter of law under the above-referenced standard, the judge must next decide whether to order a new trial on damages or enter a conditional order of remittitur, which compels a plaintiff to decide whether to accept the court's proposed reduction of the excessive verdict or to opt for a new trial. Earl v. Bouchard Transp. Co., 917 F.2d 1320, 1328 (2d Cir. 1992). As to determining when remittitur is appropriate, the Second Circuit has explained:

[W]e have found remittitur appropriate in at least two distinct cases: "(1) where the court can identify an error that caused the jury to include in the verdict a quantifiable amount that should be stricken . . . and (2) more generally, where the award is `intrinsically excessive' in the sense of being greater than the amount a reasonable jury could have awarded, although the surplus can be ascribed to a particular, quantifiable error."

Trademark Research Corp., 995 F.2d at 337 (quoting Shu-Tao Lin v. McDonnell Douglas Corp., 742 F.2d 45, 49 (2d Cir. 1984)); accord Kirsch, 148 F.3d at 165. It is important to emphasize that "[c]rucial to the practice of remittitur in either kind of case is the requirement that the court confine its role to the removal of the excess portion of the verdict so that the `damage calculation leaves in the judgement a portion of what the jury awarded.'" Shu-Tao Lin, 742 F.2d at 49 (quoting Akermanis v. Sea-Land Serv., Inc., 688 F.2d 898, 902 (2d Cir. 1982)).

Remittitur, however, is not appropriate in certain circumstances, and, instead, the trial judge should simply order a new trial on damages. In particular, there are circumstances where "the size of a jury's verdict may be so excessive as to be `inherently indicative of passion or prejudice' and to require a new trial." Ramirez v. N.Y. City Off-Track Betting, 112 F.3d 38, 40-41 (2d Cir. 1997) (quoting Auster Oil Gas, Inc. v. Stream, 835 F.2d 597, 603 (5^th Cir. 1988)). As the Second Circuit has noted, "[t]he cases in which the jury's award is seen to reflect prejudice, however, are generally limited to those in which the remittitur granted is totally out of proportion to the damages allowed by the district court." Ramirez, 112 F.3d at 41 (citing Auster Oil Gas, Inc., 835 F.2d at 603 (remittitur ordered in the amount of $4.35 million after jury awarded $5 million); Wells v. Dall. Indep. Sch. Dist., 793 F.2d 679, 683-84 (5th Cir. 1986) (remittitur ordered in the amount of $1.65 million after jury awarded $1.9 million)). Moreover, there are other circumstances where a new trial, rather than the remittitur, is the only option available to the trial judge. Specifically, remittitur is not warranted in a case where prejudicial error of some type infected the jury's entire consideration of the damages issue. The Second Circuit has articulated the rationale as to why remittitur is not an option in such circumstances:

These [remittitur] formulations are designed for circumstances in which a properly instructed jury hearing properly admitted evidence nevertheless makes an excessive award. They are not designed for a case such as the present one, in which prejudicial error has infected the jury's entire consideration of plaintiff's pecuniary loss. In such circumstances, it is impossible to preserve a portion of the jury's verdict, . . . by starting with the jury's verdict and cutting it down [as is done with remittitur]. Instead, one must proceed to calculate the damages from zero and build up. While this distinction may seem purely semantic, it is not, since building a damage award for pecuniary loss from zero up disregards the jury's verdict entirely and deprives the defendants of their right to trial by jury. We must, therefore, remand for a new trial.

Shu-Tao Lin, 742 F.2d at 50 (citations omitted).

With respect to whether remittitur is possible under the circumstances of this particular case, the Court concludes that it is not. As a threshold matter, this award is so far in excess of a rational award that it that warrants a new trial on damages. In any event, the above-referenced errors in urging the jury to award certain categories or amounts of damages that were unsupportable by the law and/or the record undoubtedly infected the jury's entire determination of plaintiffs' loss. Moreover, since there was no special verdict form as to damages, it is impossible to discern whether the jury awarded any money in certain categories of damages and, if so, what the amounts were. Under these circumstances, it is impossible to preserve a portion of the jury's verdict by cutting it down by way of remittitur; rather, it would require starting from zero and trying to build up. Such an approach to remittitur is impermissible and, thus, a new trial on compensatory damages is required. See, e.g., Oakley v. Consol. Rail Corp., No. 88-CV-364, 1992 WL 198087, at *14 (N.D.N.Y. Aug. 11, 1992) ("[T]he court is convinced that the jury reached a seriously erroneous result in calculating damages for the various items listed on the jury verdict form. Because assessment of specific amounts of damages are factual rather than legal in nature, and because the court finds no feasible method through remittitur to remedy the defects in the specific damage amounts awarded by the jury, the court grants defendant's motion to set aside the damages portion of the jury verdict and hereby directs that a new trial take place on the issue of damages."); see also Perfect Fit Indus., Inc. v. Acme Quilting Co., 494 F. Supp. 505, 509 (S.D.N.Y. 1980) ("In light of the gross excessiveness and patent irrationality of the jury's award, there is no rational formula by which a remittitur could be calculated. Since the jury's verdict is so excessive as to suggest the possibility that it was the result of passion or prejudice, the court must order a new trial.").

Accordingly, defendants are entitled to a new trial to determine compensatory damages.

(4) Punitive Damages

The individual defendants argue that punitive damages were not warranted because there was no evidence of conscious wrongdoing by either of the individual defendants, and, thus, the jury should not have been instructed on punitive damages. In the alternative, defendants argue that, even if punitive damages were warranted, the amount awarded by the jury was grossly excessive. For the reasons set forth below, the Court concludes that there was sufficient evidence of malice to have the punitive damages issue submitted to the jury. However, given that the decision on whether to award punitive damages in this case and the amount of such damages were so interwoven with the issue of compensatory damages, the Court finds that a new trial on whether punitive damages should be awarded and the amount of any such damages is warranted (along with the compensatory damages) because, inter alia, the jury's conclusion as to the amount of punitive damages may have been influenced by their erroneous conclusion that defendants' constitutional violations had caused massive compensatory harm to the plaintiffs in the amount of $1.8 million dollars.

(a) Submission of Punitive Damages Issue to the Jury

Punitive damages may be awarded in a § 1983 action "when the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others." Smith v. Wade, 461 U.S. 30, 56 (1983). To be entitled to an award of punitive damages, a claimant must show a "positive element of conscious wrongdoing." New Windsor Volunteer Ambulance Corps, Inc. v. Meyers, 442 F.3d 101, 121 (2d Cir. 2006) (quoting Kolstad v. Am. Dental Ass'n, 527 U.S. 526, 538 (1999) (internal quotation marks omitted)). That is, a "jury may be permitted to assess punitive damages in an action under § 1983 when the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others." Smith, 461 U.S. at 56.

As a threshold matter, the individual defendants also argue that the evidence was insufficient to justify the punitive damages charge issued in the jury charge. To warrant an instruction, "[a]ll that a party needs to show is that there is some evidence supporting the theory behind the instruction so that a question of fact may be presented to the jury." Cameron v. City of N.Y., 598 F.3d 50, 69 (2d Cir. 2010) (quoting Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994)). A punitive damages instruction is appropriate when the plaintiffs have produced evidence that "the defendant's conduct is . . . motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others," or, in other words, when the plaintiffs have produced evidence of "a positive element of conscious wrongdoing" or "malice." Id. (quoting New Windsor Volunteer Ambulance Corps., Inc., 442 F.3d at 121-22 (internal quotation marks omitted)). The evidence need only be sufficient "to permit the factfinder to infer that the responsible official was motivated by malice or evil intent or that he acted with reckless or callous indifference. . . ." Meyers, 442 F.3d at 122 (emphasis added). As discussed earlier, Sloup testified that defendant Loeffler told him: "If it's the last thing I do, I'm going to get your buoys out of this bay." (Tr. 700:6-7.) Sloup presented additional evidence that Loeffler imposed a ban on him not for a legitimate purpose, but rather, as a result of anger or frustration toward Sloup: "We went back and forth about the situation and I told him if I move those pots, I'm going to lose my business. And it got quite heated. I said, you know, 20 years, 25 years, I'm getting robbed all the time. My pots are there seven days a week. You haven't caught one thief in 20 years. And he gets mad. Are you accusing me of not doing my job? . . . I said, no, but you haven't caught anyone in 20 years. He goes, that's it. Now, get everything out. You're done in the Town of Islip. Everything out." (Tr. 711:16-712:2.) Similarly, with respect to Pomroy, there was also evidence from which to conclude that defendant Pomroy acted with evil motive or intent, or with reckless or callous indifference to the federally protected rights of plaintiffs. It was Officer Pomroy who initially instructed Sloup to remove all of his pots from the water in June 2004. ( See Tr. 1155:11-1156:1.) Moreover, there was testimony from Sloup that shortly after he returned his pots to the water in October 2004, he was told to remove them again by Officer Pomroy, not because they were hazards to navigation, but because they were "on Town property." (Tr. 721:11-14.) Thus, there was sufficient evidence of malice to submit the punitive damages issue to the jury. However, because the other factors regarding whether punitive damages should be awarded, as well as the amount of punitive damages, are so interwoven with grossly excessive compensatory award, a new trial on the punitive damages issue is warranted.

(b) Award of Punitive Damages

The Due Process Clause of the Fourteenth Amendment prohibits "grossly excessive or arbitrary punishments on a tortfeasor." State Farm Mut. Aut. Ins. Co. v. Campbell, 538 U.S. 408, 416 (2003); In re Simon II Litig., 407 F.3d 125, 135 (2d Cir. 2006). A punitive damages award is excessive under the Constitution if it "is so high as to shock the judicial conscience and constitute a denial of justice." DiSorbo v. Hoy, 343 F.3d 172, 186 (2d Cir. 2003) (internal citation and quotation marks omitted). The Supreme Court requires courts reviewing the reasonableness of punitive damages to consider three guideposts: "(1) the degree of reprehensibility of the defendant's misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases." Campbell, 538 U.S. at 418 (citing Gore, 517 U.S. at 575).

The Court need not analyze the amount of award under this multi-factor test because there is a more fundamental problem in this particular case with respect to punitive damages — namely, the fact that, in this case, the compensatory damages award is so interwoven with the award of punitive damages and the likelihood that the grossly excessive compensatory damages award may have impacted or tainted the jury's determination of the punitive damages award. In other words, a new trial on punitive damages is necessary because the jury likely based the award of punitive damages, in some part, on a desire to punish the defendants for the extraordinary harm that they believed was proximately caused by defendants. However, their calculation of the actual harm was grossly excessive and unsupported by the evidence. Thus, the jury's punitive damages award was likely tainted by its erroneous calculation of the compensatory damages. Moreover, although not dispositive on this motion, the Court's conclusion regarding a taint in the punitive damages award is further supported by the jury note during deliberations inquiring about the issue of indemnification. Despite the Court's instruction that they could not consider (and should not speculate about) the issue of indemnification, the note, at a minimum, indicates that the jury was discussing the issue of indemnification as it related to the issue of punitive damages and raises further questions about how that punitive award was determined. These issues cannot be rectified by a remittitur under the circumstances of this case. Thus, a new trial must take place on whether punitive damages are warranted and, if so, the amount of such damages.

However, the Court believes that the scope of the new trial can be limited to damages, and that the liability verdict can stand, because there is no indication that (1) the liability issues were inextricably intertwined with the damages question, (2) the verdict was a result of a compromise of the liability and damage questions, or (3) the partial retrial on damages will result in the denial of justice to the defendants. See Brooks v. Brattleboro Mem. Hosp., 958 F.2d 525, 531 (2d Cir. 1992); see also Atlas Food Sys. Serv. v. Crane Nat'l Vendors, 99 F.3d 587 (4th Cir. 1996) ("Considerations of economy, fairness, and repose may provide justification for preserving a jury's liability determination that has been fairly and fully made and ordering only a new trial on damages where there is no substantial indication that the liability and damage issues are inextricably interwoven, or that the first jury verdict was the result of a compromise of the liability and damage questions." (quotations and citations omitted)).

This Court's conclusion on that issue under the circumstances of this case is consistent with decisions by other courts under analogous circumstances. See, e.g., Rodgers v. Fisher Body Div. Gen. Motors Corp., 739 F.2d 1102, 1109 (6th Cir. 1984) ("It is likely that the errors which tainted the compensatory award also affected the jury in its determination of punitive damages. While punitive damages may stand independently of compensatory, here the two are sufficiently interwoven that the interests of justice require that both issues be re-tried."); see also Ramsey v. Am. Air Filter, 772 F.2d 1303, 1314 (7th Cir. 1985) ("That both the trial court and this court already have construed as excessive two components of the jury's awards strengthens our conviction that the jury also improperly awarded punitive damages."). See generally Zender v. Vlasic Foods, Inc., No. 94-56499, 1996 WL 406145, at *5 (9th Cir. July 19, 1996) (unpublished decision) (noting that "[b]oth federal and California law . . . generally require that the same jury determine both liability for, and the amount of, punitive damages because those questions are so interwoven" (citations omitted)).

Accordingly, in its discretion, the Court concludes, under the particular circumstances of this case, that there needs to be a new trial on both the issue of compensatory and punitive damages.

III. CONCLUSION

For the foregoing reasons, defendants' motions to set aside the verdict, for judgment as a matter of law, and for a new trial are granted in part and denied in part. Specifically, defendants' motion for a new trial as to the compensatory damages awarded and as to punitive damages is granted. Defendants' motions for other relief are denied.

SO ORDERED.