Opinion
06-CV-6720(JS)(SIL)
09-30-2015
JOHN RESTIVO and DENNIS HALSTEAD, ET AL., Plaintiffs, v. NASSAU COUNTY, CAROLANN HESSEMAN, AS EXECUTRIX FOR THE ESTATE OF JOSEPH VOLPE, in his individual capacity, and CHARLIE FRAAS, in his individual capacity, ET AL., Defendants.
APPEARANCES For Plaintiffs: Barry C. Scheck, Esq. Alexandra Lynn Lampert, Esq. Monica R. Shah, Esq. Nick Joel Brustin, Esq. Anna B. Hoffman, Esq. Peter Jon Neufeld, Esq. Neufeld Scheck & Brustin LLP 99 Hudson Street, 8th Floor New York, New York 10013 Joshua Evan Dubin, Esq. Joshua E. Dubin, Esq., P.A. 212 NE 16th Terrace Fort Lauderdale, FL 33301 David Graff, Esq. Rachael Ann Kierych, Esq. Anderson Kill & Olick PC 1251 Avenue of The Americas 42nd Floor New York, NY 10020 Leon Friedman, Esq. 148 E. 78th St. New York, NY 10075 For Defendants: Nassau County Daniel A. Bartoldus, Esq. Amy E. Bedell, Esq. Annemarie Susan Jones, Esq. Lewis Johs Avallone Aviles & Kaufman, LLP One CA Plaza, Suite 225 Islandia, NY 11749 Liora M. Ben-Sorek, Esq. Dennis J. Saffran, Esq. Sondra Meryl Toscano, Esq. Office of the Nassau County Attorney One West Street Mineola, New York 11501 Carolann Hessemann, as executrix of the Estate of Joseph Volpe: Peter J. Tomao, Esq. Law Office of Peter J. Tomao 600 Old Country Rd, Suite 328 Garden City, NY 11530 Thomas J. McNamara, Esq. Certilman, Balin, Adler & Hyman, LLP 90 Merrick Avenue East Meadow, NY 11554
MEMORANDUM & ORDER
APPEARANCES
For Plaintiffs:
Barry C. Scheck, Esq.
Alexandra Lynn Lampert, Esq.
Monica R. Shah, Esq.
Nick Joel Brustin, Esq.
Anna B. Hoffman, Esq.
Peter Jon Neufeld, Esq.
Neufeld Scheck & Brustin LLP
99 Hudson Street, 8th Floor
New York, New York 10013
Joshua Evan Dubin, Esq.
Joshua E. Dubin, Esq., P.A.
212 NE 16th Terrace
Fort Lauderdale, FL 33301
David Graff, Esq.
Rachael Ann Kierych, Esq.
Anderson Kill & Olick PC
1251 Avenue of The Americas
42nd Floor
New York, NY 10020
Leon Friedman, Esq.
148 E. 78th St.
New York, NY 10075
For Defendants:
Nassau County
Daniel A. Bartoldus, Esq.
Amy E. Bedell, Esq.
Annemarie Susan Jones, Esq.
Lewis Johs Avallone Aviles & Kaufman, LLP
One CA Plaza, Suite 225
Islandia, NY 11749
Liora M. Ben-Sorek, Esq.
Dennis J. Saffran, Esq.
Sondra Meryl Toscano, Esq.
Office of the Nassau County Attorney
One West Street
Mineola, New York 11501
Carolann Hessemann,
as executrix of
the Estate of
Joseph Volpe:
Peter J. Tomao, Esq.
Law Office of Peter J. Tomao
600 Old Country Rd, Suite 328
Garden City, NY 11530
Thomas J. McNamara, Esq.
Certilman, Balin, Adler & Hyman, LLP
90 Merrick Avenue
East Meadow, NY 11554
SEYBERT, District Judge:
Pending before the Court is Plaintiff John Restivo and Dennis Halstead's ("Plaintiffs") unopposed motion to amend the Judgment entered in this case to include interest. (Docket Entry 229.) As discussed below, Plaintiffs' motion is GRANTED.
BACKGROUND
The Court assumes familiarity with the facts and procedural history of this case. Briefly, this case was tried for the second time in March and April 2014. The case was bifurcated and, on April 11, 2014, the jury found defendant former Nassau County Homicide Detective Joseph Volpe ("Volpe") liable to Plaintiffs for (1) unconstitutionally depriving them of their right to a fair trial, and (2) malicious prosecution. (See Verdict Sheet, Docket Entry 198.) Following the damages phase of the trial, the jury awarded Plaintiffs $18 million each. Defendants Volpe, Nassau County, and Charlie Fraas (collectively "Defendants") moved for a new trial on June 16, 2014, (Docket Entry 215), and on November 12, 2014 the Court denied Defendants' motion. (Docket Entry 225.) Judgment was entered against Volpe on November 17, 2014, however, the Judgment did not provided for interest on the $18 million awarded to each Plaintiff.
Plaintiffs now move under Federal Rule of Civil Procedure 59(e) and 60 to amend the Judgment to include both post-verdict, and post-judgment interest. (Pl.'s Br., Docket Entry 229, at 2.) Defendants do not oppose Plaintiffs' motion.
DISCUSSION
Plaintiffs contend that they should be awarded post-judgment interest pursuant to the rate set in 28 U.S.C. § 1961, and post-verdict interest on their damages award at nine percent per annum prejudgment interest pursuant to N.Y. C.P.L.R. § 5002. (Pl.'s Br. at 2.) The Second Circuit recently clarified that post-judgment interest awarded in Federal District Court must be calculated pursuant to 28 U.S.C. § 1961. Cappiello v. ICD Publ'n, Inc., 720 F.3d 109, 113 (2d Cir. 2013) cert. denied, 134 S. Ct. 683, 187 L. Ed. 2d 550 (2013).
Prejudgment post-verdict interest is treated differently however. Under New York law, prejudgment post-verdict interest is recoverable "in any action, from the date the verdict was rendered or the report or decision was made to the date of entry of final judgment." N.Y. C.P.L.R. 5002. When federal jurisdiction is founded upon diversity of citizenship, it has been established that "state law governs the award of prejudgment interest." Schipani v. McLeod, 541 F.3d 158, 164 (2d Cir. 2008). In addition, courts in this circuit have awarded post-verdict prejudgment interest on pendant state law claims when jurisdiction is founded upon a federal question jurisdiction. Adrian v. Town of Yorktown, 620 F.3d 104, 107 (2d Cir. 2010) (applying the nine percent prejudgment interest rate to a claim brought under New York state law; "because prejudgment interest is a matter of substantive law, the New York interest rate applies to the interest sought"); DiBella v. Hopkins, 285 F. Supp. 2d 394, 410 (S.D.N.Y. 2003) aff'd, 403 F.3d 102 (2d Cir. 2005). Here, Defendants do not contest that Plaintiffs are entitled to both post-verdict post-judgment interest. Therefore, Plaintiffs' request is GRANTED.
Under New York law, prejudgment interest that accrues from the time an action existed until the verdict is only available in cases in which the plaintiff was denied a tangible property interest and brought suit as a result. See N.Y. C.P.L.R § 5001(a) (specifying that prejudgment interest "shall be recovered upon a sum awarded because of a breach of performance of a contract, or because of an act or omission depriving or otherwise interfering with title to, or possession or enjoyment of, property . . ."); Rodick v. City of Schenectady, 856 F. Supp. 105, 107 (N.D.N.Y. 1994) (refusing to award pre-judgment interest following a jury verdict on a malicious prosecution claim). Plaintiffs do not seek prejudgment interest from the date Plaintiffs cause of action existed, only prejudgment post-verdict interest.
CONCLUSION
Plaintiffs' motion to amend the Judgment (Docket Entry 229) is GRANTED. The Clerk of the Court is directed to amend the Judgment in this case to include: (1) post-verdict interest at a rate of nine percent per year, accruing from April 11, 2014, the date of the liability verdict in this case, until November 17, 2014, the date of entry of judgment; and (2) post-judgment interest computed pursuant to 28 U.S.C. § 1961, accruing from November 17, 2014 until the Judgment is paid.
SO ORDERED.
/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
DATED: September 30, 2015
Central Islip, New York