Opinion
92 CV 2913 (ILG)
June 19, 2001
Memorandum Order
After a week long trial, a jury returned a verdict on February 9, 2001 in favor of plaintiff Twenty First Century on its claims against defendant Joseph LaBianca for fraud, breach of fiduciary duty, aiding and abetting the breach of fiduciary duty by Michael Malpedi, and conversion. The jury found for defendant on plaintiff's claims of aiding and abetting the breach of fiduciary duty of Richard Redzinski and of violation of 18 U.S.C. § 1962(c) ("Civil RICO"). The jury awarded damages totaling $1,200,000: $700,000 for the fraud claim, $250,000 for the breach of fiduciary duty, $160,000 for aiding and abetting the breach of fiduciary duty, and $90,000 for conversion. Defendant now brings this motion pursuant to Fed.R.Civ.P. 50 for judgment as a matter of law and, in the alternative, pursuant to Fed.R.Civ.P. 59 for a new trial or a remittitur. For the following reasons, defendant's motion is granted in part and denied in part.
References hereinafter to "Twenty First Century" or "plaintiff" are meant to encompass both Twenty First Century L.P. I and Twenty First Century L.P. II.
The standard governing decisions of motions for judgment as a matter of law under Fed.R.Civ.P. 50 is well established. Kirsch v. Fleet St., Ltd., 148 F.3d 149, 161 (2d Cir. 1998) (citing Galdieri-Ambrosini v. National Realty Development Corp., 136 F.3d 276, 289 (2d Cir. 1998)). "Judgment as a matter of law is inappropriate unless the evidence, viewed in the light most favorable to the opposing party, is insufficient to permit a reasonable juror to find in his favor." Id. (citingGaldieri-Ambrosini, 136 F.3d at 289; Sir Speedy, Inc. v. L P Graphics, Inc., 957 F.2d 1033, 1039 (2d Cir. 1992); Vasbinder v. Ambach, 926 F.2d 1333, 1339 (2d Cir. 1991)). "In assessing such a motion, the court is not allowed to weigh the credibility of witnesses or consider the weight of the evidence." Id. (citing Vasbinder, 926 F.2d at 1340)). Judgment as a matter of law should not be granted unless:
(1) there is such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise and conjecture, or (2) there is such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded [persons] could not arrive at a verdict against [it].Id. (citing Cruz v. Local Union No. 3 of the International Brotherhood of Electrical Workers, 34 F.3d 1148, 1154 (2d Cir. 1994) (internal quotation marks omitted); Gibeau v. Nellis, 18 F.3d 107, 109 (2d Cir. 1994)).
Rule 59(a) of the Federal Rules of Civil Procedure provides: "A new trial may be granted . . . for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States." Fed.R.Civ.P. 59(a). As a general matter, "[a] motion for a new trial should be granted when, in the opinion of the district court, the jury has reached a seriously erroneous result or . . . the verdict is a miscarriage of justice." DLC Mgmt. Corp. v. Town of Hyde Park, 163 F.3d 124, 133 (2d Cir. 1998) (citing Song v. Ives Labor., Inc., 957 F.2d 1041, 1047 (2d Cir. 1992) (internal quotation marks and citation omitted)). "A new trial may be granted, therefore, when the jury's verdict is against the weight of the evidence." Id. (citing Byrd v. Blue Ribbon Rural Elec. Co., 356 U.S. 525, 540 (1958); Dunlap-McCuller v. Riese Organization, 980 F.2d 153, 157 (2d Cir. 1992); Metromedia Co. v. Fugazy, 983 F.2d 350, 363 (2d Cir. 1992)). "Unlike judgment as a matter of law, a new trial may be granted even if there is substantial evidence supporting the jury's verdict. Moreover, a trial judge is free to weigh the evidence himself, and need not view it in the light most favorable to the verdict winner." Id. (citing Song, 957 F.2d at 1047).
An unsuccessful defendant may move under Fed.R.Civ.P. 50 and 59 for judgment as a matter of law, challenging the sufficiency of the evidence supporting the jury's findings, and in the alternative for a new trial or a remittitur, contending that the verdict was not supported by the evidence. Kirsch, 148 F.3d at 160.
I. Motion for Judgment as a Matter of Law
Defendant makes two principle arguments in support of his motion to reduce damages. First, the damages awarded by the jury on the fraud and conversion charges could not have been calculated in a reasonable fashion. Second, settlement payments previously collected from co-defendants should be setoff from the judgment. The court finds the first argument unpersuasive and the second argument only partially persuasive. Each argument is addressed in turn below.
A. Fraud Damages
Defendant first argues that the jury's award of $700,000 as damages for fraud is excessive because the evidence at trial does not support the conclusion that he received $700,000 in kickbacks. As an initial matter, defendant's attempt to distinguish the fraud from the breach of fiduciary claim is implausible, as the two claims are inextricably linked. The fraud that was charged in the Complaint and for which the jury found defendant liable was defendant's acceptance of kickbacks and failure to report kickbacks in breach of his fiduciary duty to Twenty First Century. As such, the jury's award of damages for fraud cannot be viewed, as defendant would suggest, completely separately from its award of damages for breach of fiduciary duty.
Moreover, underlying defendant's argument of excessiveness is his erroneous assumption that plaintiff may only recover the amount of kickbacks actually paid to LaBianca. "New York measures damages in fraud cases based on the out-of-pocket loss suffered by plaintiff, but does not include lost profits." Whitney Holdings, Ltd. v. Givotovsky, 988 F. Supp. 732, 736 (S.D.N.Y. 1997) (citing Allard v. Arthur Andersen Co., 924 F. Supp. 488, 493 (S.D.N Y 1996)); AFA Protective Systems, Inc. v. American Tel. Tel. Co., 57 N.Y.2d 912, 914, 456 N.Y.S.2d 757, 758 (1982) ("the rule in this State is that all elements of profit are excluded from a computation of damages in an action grounded in fraud"). "The damages `must be the direct, immediate, and proximate result of the fraudulent misrepresentations.'" Id. (quoting Goldberg v. Mallinckrodt, Inc., 792 F.2d 305, 307 (2d Cir. 1986) (citing Bennett v. United States Trust Co. of New York, 770 F.2d 308, 316 (2d Cir. 1985); Idrees v. American University of the Caribbean, 546 F. Supp. 1342, 1350 (S.D.N.Y. 1982); Deyo v. Hudson, 225 N.Y. 602 (1919); Mills Studio, Inc. v. Chenango Valley Realty Corp., 15 A.D.2d 138, 141, 221 N.Y.S.2d 684, 687 (3d Dept. 1961))). Therefore, the appropriate measure of damages on plaintiff's fraud claim would be the out-of-pocket loss directly and proximately caused by LaBianca's fraudulent acceptance of kickbacks in Twenty First Century construction jobs and those which he aided and abetted. That this loss includes not only kickbacks that LaBianca received personally, but all kickbacks that were paid by any vendor as a result of his fraud and breach of fiduciary duty to repot them is beyond cavil. Defendant was found liable for aiding and abetting the breach of fiduciary duty of Malpiedi and for a breach of fiduciary duty generally. Thus, to the extent that he was aware of kickbacks and failed to act, it was proper for the jury to hold him responsible for those kickbacks as well.
Evidence was presented at trial that the total amount of kickbacks paid by five of the contractors who participated in the scheme was $1,294,455, with Delli Bovi paying kickbacks of $834,000 (Tr. 365, 401, 402, Tr. Ex. 87); Citarella paying kickbacks of $250,000 (Tr. 301), Vignola paying kickbacks of $165,000 (Tr. 322); Valle paying kickbacks of $26,155 (263-64, 270-72); Governale paying kickbacks of $15,000 (Tr. 347); and Esposito paying kickbacks of $4,300 (Tr. 431). Testimony by settling defendants Michael Malpiedi, Richard Redzinski, and Stephen Delli Bovi more than supported this evidence, with Malpiedi testifying that he received between $250,000 and $300,000 in kickbacks (Tr. 223) and that LaBianca received approximately $500,000 in kickbacks (id.); Redzinski testifying that he received $250,000 to $300,000 in kickbacks (Tr. 252); and Delli Bovi testifying that he and his father-in-law, Robert Goldfine, each received $104,250 in kickbacks. Thus, the sum of the kickbacks testified to by Malpiedi, Redzinski and Delli Bovi was $1,308,500. Instead of awarding the full $1,308,500 in out-of-pocket losses incurred by Twenty First Century as a result of the kickback scheme, the jury awarded only $700,000 in damages for plaintiff's fraud claim. This damages award is more then sufficiently supported by the evidence.
Defendant opposes a damages award which might force him to pay for kickbacks received by others on the ground that in a multiple defendant case, the fraud of one defendant cannot be the proximate cause of kickbacks received by all defendants. Defendant's argument flies in the face not only of reason but of the overwhelming evidence provided at trial that he played an instrumental role in originating and furthering a kickback scheme which resulted in artificial bills paid by Twenty First Century that would benefit not only himself but others as well. Moreover, his argument that the rule articulated in the Whitney case for the computation of fraud damages does not apply to multiple-defendant cases is unpersuasive for the simple reason that this rule is derived from a line of cases which involved more than one defendant. See Whitney, 988 F. Supp. at 736 (citing Allard v. Arthur Andersen Co., 924 F. Supp. 488, 493 (S.D.N.Y. 1996) (multiple defendant case involving Arthur Andersen Co. (USA), Arthur Andersen Co. (Republic of Ireland), and Arthur Andersen Co. (United Kingdom)); AFA Protective Systems, Inc. v. American Tel. Tel. Co., 57 N.Y.2d 912, 914, 442 N.E.2d 1268, 1269, 456 N.Y.S.2d 757, 758 (1982) (multiple defendant case involving defendant corporations that supplied private telephone lines essential to security alarm systems) (citing Reno v. Bull, 226 N.Y. 546, 124 N.E. 144 (1919) (multiple defendant case involving directors of Maine corporation)). Finally, any inequity that LaBianca argues would result if he were held liable for kickbacks received by others is mitigated by setting off the settlement payments Twenty First Century has already received, which is discussed in greater detail below.
B. Conversion Damages
Defendant next argues that the $90,000 awarded to plaintiff for his conversion of plaintiff's money and property is without basis in the record. The jury was instructed as follows: "if you find that . . . Mr. LaBianca exercised dominion and control for his own benefit over money which was rightfully the money of Twenty First Century, and he did that in violation of his fiduciary duty, he would be liable to plaintiff in the amount which is the equivalent to the value of the money which he converted." (Tr. 582) In arguing that the conversion damages are not grounded in the evidence presented at trial, defendant notes that no payment was alleged to have been made to LaBianca in the amount of $90,000 and that the $90,000 does not appear to reflect an individual or aggregate salary or bonus payment made by Twenty First Century to LaBianca between 1988 and 1990. Plaintiff argues, correctly, that if the sums paid to LaBianca in 1988 and 1989 for bonus and severance are added together, they add up almost exactly to $90,000. (Ex. 171-B) That this amount might have been the premise for the jury's determination with respect to conversion damages is particularly likely in view of the fact that the jury awarded an additional $250,000 for LaBianca's breach of fiduciary duty, which added with the $90,000 for conversion amount almost exactly to the total amount paid by Twenty First Century to LaBianca in salary bonuses and severance pay. (Ex. 171-B) Thus, the jury's award for conversion has a solid basis in the evidence adduced at trial.
C. Setoff for Settlement Payments Already Received by Plaintiff
Defendant finally argues in its motion that the judgment should be reduced by the amount plaintiff has received from co-defendants who settled with plaintiff in order to avoid going to trial. Defendant appends a letter from plaintiff's counsel to LaBianca's former counsel which states that, as of February 29, 2001, plaintiff had received the following payments from settling co-defendants:
from Richard Redzinski $181,000 ($121,481.93 plus stock worth $59,518.07); from Angelo Vignola $177,500 ($152,500 from Vignola plus $25,000 from Vignola and DD Electric in partial payment of a $50,000 settlement agreement); from North County Roofing services valued at $15,300; from The Other Tile Co. services valued at $15,000; from Stephen Delli Bovi $2,670; and, from Alan Citarella $1,365.
Defendant's memorandum in support of this motion erroneously reflects that Twenty First Century had received a total of $442,925 as of February 29, 2000. On closer examination, however, it appears that defendant has miscalculated that the $152,500 from Vignola plus the $25,000 from Vignola and DD Electric add up to a total of "$227,5000." In fact, the sum of $152,500 and $25,000 is $177,500. Thus, defendant's estimation of the total received by plaintiff is incorrect.
(Def.'s Mot. to Reduce Judgment, Ex. A). The total payment received as of that date is $382,835.00. In its memorandum in support of this motion, defendant also requests that the court direct plaintiff to submit an exact calculation of amounts previously collected from settling co-defendants as of February 9, 2001, the date the jury returned with a verdict, and that the total amount be reduced from the jury's award. During oral argument on this motion, the court invited plaintiff to submit its proposed analysis for the calculation of a setoff, and on April 5, 2001, plaintiff submitted a letter stating that payments by Angelo Vignola now total $202,500 and payments by Stephen Delli Bovi now total $3,240. Taking into account these additional payments, the total settlement payments received by plaintiff as of April 5, 2001 is $418,405.
The February 29, 2000 letter also states that plaintiff had received from Richard Mandel, James Ahern, the Estate of John Ahern, and James Michael, Inc. a $7,000 settlement payment. However, as plaintiff notes in its April 5, 2001 letter, this sum was received in settlement of the eleventh through nineteenth claims in the Amended Complaint, which relate to a "security scheme" that defendant LaBianca was never alleged to have been a part of and that was not proven at trial. Moreover, defendant has not requested that the judgment be reduced by this settlement payment. Thus, the $7,000 is not considered here.
Neither the February 29, 2000 letter nor any other documentary evidence concerning settlement payments was introduced as evidence at the trial. However, defendant did inquire at trial as to how much plaintiff had received from defendants other than LaBianca in settlement of plaintiff's claims against them. Plaintiff's CEO, Dorothy Kornblith, testified that Vignola had paid plaintiff $50,000 but that she did not know how much had been collected from other defendants. (Tr. 468-476, Tr. Ex. D) In addition, Redzinski testified that he paid plaintiff approximately $180,000 in settlement. (Tr. 257) Finally, Frank Governale testified that he performed services in kind for plaintiff valued at $15,000 in settlement of plaintiff's claims against him. As for Malpiedi, he testified that he is liable for $200,000 by the terms of his settlement agreement with plaintiff and is also under obligation to pay restitution on account of his criminal conviction, but that he has not yet made any payments to plaintiff. (Tr. 180) No other testimony concerning settlement payments was elicited at trial.
The Second Circuit has long recognized that "when a plaintiff receives a settlement from one defendant, a nonsettling defendant is entitled to a credit of the settlement amount against any judgment obtained by the plaintiff against the nonsettling defendant as long as both the settlement and judgment represent common damages." Singer v. Olympia Brewing Co., 878 F.2d 596, 600 (2d Cir. 1989), cert., denied, 493 U.S. 1024 (1990) (citing Hess Oil Virgin Islands Corp. v. UOP, Inc., 861 F.2d 1197, 1208 (10th Cir. 1988); U.S. Indus., Inc. v. Touche Ross Co., 854 F.2d 1223, 1236 (10th Cir. 1988); see also Restatement (Second) of Torts § 885(3), comments e f) ("A payment by any person made in compensation of a claim for a harm for which others are liable as tortfeasors diminishes the claim against the tortfeasors, at least to the extent of the payment made, whether or not the person making the payment is liable to the injured person and whether or not it is so agreed at the time of payment or the payment is made before or after judgment.")). Stated otherwise, this "one-satisfaction rule" provides that a plaintiff's total recovery may not exceed the amount of the judgment that it obtains in an action based on any given injury. As Judge Spatt has succinctly explained:
It is hornbook law that a plaintiff cannot recover twice for the same injury. (See, e.g., Phelan v. Local 305 of the United Ass'n of Journeymen, 973 F.2d 1050, 1992 U.S. App. LEXIS 20196, at *38 (2d Cir. 1992) (citation omitted); Singer v. Olympia Brewing Co., 878 F.2d 596, 600 (2d Cir. 1989), cert. denied, 493 U.S. 1024, 107 L.Ed.2d 748, 110 S. Ct. 729 (1990).)
"A payment by any person made in compensation of a claim for a harm for which others are liable as tortfeasors diminishes the claim against the tortfeasors, at least to the extent of the payment made, whether or not the person making the payment is liable to the injured person and whether or not it is so agreed at the time of payment or the payment is made before or after judgment." (Singer v. Olympia Brewing Co., supra, 878 F.2d at p. 600.)
Under the above rule, when a plaintiff settles with one defendant, a nonsettling co-defendant is entitled to a credit of the settlement amount against any judgment the plaintiff obtains against the nonsettling co-defendant as long as both the settlement and judgment represent common damages.United States v. Zan Machine Co., 803 F. Supp. 620, 623 (E.D.N.Y. 1992) (emphasis added) (citing Phelan v. Local 305 of the United Ass'n of Journeymen, 973 F.2d 1050, 1992 U.S. App. LEXIS 20196, at *39 (2d Cir. 1992) (citing Singer v. Olympia Brewing Co., 878 F.2d 596, 600 (2d Cir. 1989)).
Subsequent to the Second Circuit's decision in Singer, the United States Supreme Court decided McDermott, Inc. v. AmClyde, 511 U.S. 202, 114 S.Ct. 1461, 1470-71 (1994), which dealt with the method for reducing a judgment in cases in which the jury apportions damages among multiple defendants, some of whom settle before trial. The McDermott court stated in dictum that: "the law contains no rigid rule against overcompensation. . . . Making tortfeasors pay for the damage they cause can be more important than preventing overcompensation. . . . It seems to us that a plaintiff's good fortune in striking a favorable bargain with one defendant gives other defendants no claim to pay less than their proportionate share of the total loss." Because McDermott was an admiralty case in which the jury had apportioned damages among four corporate defendants and because the Second Circuit has not backed away from Singer, this court sees no reason why McDermott should prevent a reduction of the non-settling defendant's judgment by the amount paid by settling defendants where, as here, the jury has not apportioned damages among co-defendants and would not be expected to do so as only this defendant ultimately went to trial, suggesting that all damages were thus applicable only to him.
Plaintiff here has failed to cite any case in which the amount of such a settlement by a co-defendant was not offset in a case in which it is alleged that multiple defendants are responsible for the same injury sounding in fraud, conversion, breach of fiduciary duty, and aiding and abetting another in the breach of a fiduciary duty. Without such precedent, the court, as in Zan Machine Co., "declines to depart from the well-settled rule to credit a defendant with the amount of a co-defendant's monetary settlement involving common damages." 803 F. Supp. at 623. In opposing a setoff for settlement payments received, plaintiff argues that defendant could not have been responsible for the same injury as that which was inflicted by the settling co-defendants since the Amended Complaint alleges different causes of action against each of the co-defendants. While the specific claims against each co-defendant may not be identical, those differences simply reflect the varying degrees of participation on the part of individual defendants within the same conspiracy and the diverse means used in effecting that participation. Those differences do nothing to disturb the conclusion that even plaintiff would be hard-pressed to contest, the fact that all of the co-defendants are alleged to have participated in the same kickback scheme that harmed Twenty First Century.
Accordingly, the amount awarded by the jury should be offset by the amounts paid by all co-defendants who have already paid Twenty First Century in connection with the kickback scheme, with the exception of Redzinski. Subtracting the payment made by Redzinski, that amount is $237,405 (payments by all settling co-defendants, with the exception of Malpiedi who has not yet paid his settlement, amounting to $418,405 in cash and services in kind minus Redzinski's payment of $181,000 in cash and stock). In sum, the total damages awarded by the jury of $1,200,000 should be reduced by $237,405 to $962,595.
Because Malpiedi has not yet made the contemplated payment to plaintiff, defendant does not and cannot request that the judgment be reduced by this $200,000 See e.g., U.S. Inc., 854 F.2d at 1236 ("When a plaintiff receives an amount from a settling defendant, therefore, it is normally applied as a credit against the amount recovered by the plaintiff from a non-settling defendant, provided both the settlement and the judgment represent common damages.") (emphasis added) (citing Howard v. General Cable Corp., 674 F.2d 351, 358 (5th Cir. 1982)); Corder v. Brown, 25 F.3d 833, 840 (9th Cir. 1994) ("a non-settling defendant is entitled to offset attorney's fees owed by the amount already paid by settling defendants."). In the event LaBianca discovers, at some future date, that Malpiedi has paid plaintiff the $200,000 settlement, LaBianca may renew his request for credit on the judgment in the amount of $200,000. See e.g., F.D.I.C. v. United Pacific Ins. Co., 20 F.3d 1070, 1083 n. 11 (10th Cir. 1994) (setting off judgment by amount of settlement payments received but noting that "the usual method of obtaining a reduction in a judgment due to a settlement with another party is via a post-judgment motion for credit on the judgment.") (citing Fed.R.Civ.P. 60(b); Touche Ross Co., 854 F.2d at 1235; Kassman v. American University, 546 F.2d 1029, 1033 (D.C. Cir. 1976) ("a motion for a credit on a judgment should be treated as a Rule 60(b)(5) motion for relief from a judgment which has been satisfied, released or discharged. Motions of that character need only be made `within a reasonable time,' and the motion here clearly met that requirement.") (footnotes and internal citations omitted)).
Because the jury did not find that defendant was responsible for Redzinski's participation in the kickback scheme, there is no reason that his restitution to plaintiff should inure to defendant's benefit. In contrast, plaintiff should not be permitted to recover twice for damages caused by defendant and those co-defendants other than Redzinski where defendant and those co-defendants were responsible for inflicting the same injury. In opposition to the request for setoff, plaintiff argues that the fact that proof of amounts received by Twenty First Century was placed into the record suggests that the jury did take these sums into account in determining the amounts for which defendant is liable, and that by further offsetting the damages, the court would be doing what the jury has already done. For example, plaintiff suggests that the fact that the jury could have found defendant liable for up to $1,308,500 for the fraud claim alone, but only found him liable for $700,000 on that claim, "strongly establishes that the jury either did not hold LaBianca liable for all of the kickbacks paid, or subtracted amounts already received by Twenty First Century." (Pl.'s Mem. in Opp'n, 7)
Ironically, plaintiff's counsel advances this argument while simultaneously acknowledging that it would be impossible to guess what evidence the jury relied upon in arriving at its damages award. In a letter to this court dated April 11, 2001, she states: "The Court cannot now attempt to parse what evidence the jury did or did not give credence to in arriving at their verdict." (Letter from Darlene Fairman dated April 11, 2001).
However, to accept the conclusion that plaintiff urges here — namely that the jury's damages award reflects a reduction for settlements received — would entail pure speculation. Moreover, such a conclusion would contradict the evidence and the instructions given to the jury in this case. Despite plaintiff's suggestions to the contrary, the jury was never instructed to setoff damages by the amount received by Twenty First Century from settling defendants. The special verdict form prepared by plaintiff for use by the jury in its calculation of damages did not require the jury to consider any setoff. And, finally, the charts introduced by plaintiff during the trial did not reflect any settlement payments received by plaintiff. If anything, the jury's calculation of damages appears to be linked to the way the conspiracy is alleged to have functioned in this case, not to its consideration of settlement payments received by plaintiff. The fact that the jury awarded only half of what they could have awarded based on the evidence suggests that the jury simply was following through on its determination that defendant was not responsible for kickbacks taken by Redzinski. That rationale for the jury's determination resonates clearly with the trial testimony of Kornblith, who described how responsibilities were allocated between defendant and Redzinski: "the company was kind of divided in half, almost in half, with each gentleman doing the operations performed for the entire company." (Tr. 40) That rationale also is consistent with the testimony of Malpiedi, who described how the kickback scheme worked with Redzinski: "It worked the same way as it worked with Mr. LaBianca. Mr. R[e]dzinski was on this side, Mr. LaBianca was on the other side." (Tr. 192, 193) Later, Malpiedi also testified that "there were two different elements to this thing, it was Mr. Rich R[e]dzinski and Mr. Joe LaBianca, like two separate — my two separate partners." (Tr. 204) Accordingly, it cannot be assumed that the jury accounted for payments received by plaintiff from settling co-defendants, and the total amount of damages awarded by the jury of $1,200,000 should be reduced by $237,405 to $962,595.
On a final note, plaintiff has argued that if the court approves a setoff for settlement payments already received by plaintiff, that setoff should be calculated against the total amount of kickbacks plaintiff put into evidence at trial, rather than from the amount of damages the jury actually awarded. (Letter from Darlene Fairman, Esq. dated April 5, 2001) Plaintiff's attempt to calculate the setoff by subtracting settlement payments from the amount the jury might have awarded, but chose not to, has already been rejected by the Second Circuit in the analogous context presented by the Singer case. Plaintiff in Singer "accept[ed] application of the one satisfaction rule in this case and even concede[d] that he suffered only one injury." Singer, 878 F.2d at 600. Nevertheless, in his appeal, plaintiff argued that the settlement credit was improperly applied because the district court failed to take into account the amount of damages it might have proven against the settling defendant. The Court of Appeals resoundingly rejected this argument when it stated:
Singer advances the novel argument that where a plaintiff may be entitled to more damages from one defendant than from another, the one satisfaction rule should require that the settlement be deducted, not from the amount to be recovered under the judgment but from the highest amount of "provable damages" that could have been recovered against the settling defendant. This argument borders on the frivolous.
In the first place, Singer's proposed interpretation of the rule would run counter to the requirement, found in virtually every case and statute adopting the rule, as well as in the Restatement (Second), that the settlement amount be deducted from the claim or judgment in the litigated case, and not from the potential claim or judgment in the settled case. . . .Id. at 600-601 (emphasis added). For the same reasons that the Court of Appeals in Singer rejected the plaintiff's attempt to subtract from provable damages as opposed to damages actually determined by the jury, plaintiff's argument cannot be countenanced here.
II. Motion for a New Trial on Damages or Remittitur
Defendant finally argues that in the event his motion to reduce damages is denied, a new trial on damages should be held, or remittitur granted, to give a jury the opportunity to determine LaBianca's proportionate share of responsibility for the damage to plaintiff and to hear evidence concerning all of the $442,925.00 already collected by plaintiff. A district court may grant a motion for a new trial when "the jury has reached a seriously erroneous result or . . . the verdict is a miscarriage of justice. A new trial may be granted, therefore, when the jury's verdict is against the weight of the evidence." DLC Mgmt. Corp. v. Town of Hyde Park, 163 F.3d 124, 133 (2d Cir. 1998) (internal citations omitted). Remittitur, or a reduction of the judgment, may be ordered "(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 v. Fleet Street, Ltd., 148 F.3d 149, 165 (2d Cir. 1998) (internal citations and quotation marks omitted). The court may overturn a verdict for excessiveness and order a new trial without qualification or condition a new trial on the verdict winner's refusal to agree to a reduction. Id. at 165.
Here, defendant argues that the potential for serious error or a miscarriage of justice is clear because the amount of money plaintiff has already received from settling co-defendants has not been deducted from the judgment and because the jury did not determine the proportionate liability of each defendant for fraud and conversion. Moreover, he avers that because plaintiff has put forth no authority to support its suggestion that his failure to offer proof at trial on damages puts him outside of the protection of Fed.R.Civ.P. 59(a). For reasons already discussed, the jury's determination of damages in this case was grounded in the evidence, and no new trial is warranted. Nor is there any basis for remittitur, as no error can be identified which caused the jury to include a quantifiable amount that should be stricken and as the award is not intrinsically excessive. Plaintiff correctly notes that the jury's use of a special verdict form resolves any doubt as to whether its award was tailored to the proof.
Conclusion
For the foregoing reasons, defendant's motion to reduce the judgment or for remittitur or for a new trial is denied, with one exception providing for a setoff in the amount of settlement payments received by Twenty First Century from co-defendants. Thus, the total amount of damages awarded by the jury is reduced from $1,200,000 to $962,595.
SO ORDERED.