Elyse v. Bridgeside Inc. , 367 F. App'x 266 ( 2010 )

08-3430-cv
Elyse v. Bridgeside Inc.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUM M ARY
ORDERS FILED AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUM M ARY
ORDER IN A DOCUM ENT FILED WITH THIS COURT, A PARTY M UST CITE EITHER THE FEDERAL
APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUM M ARY ORDER”). A PARTY
CITING A SUM M ARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 1st day of
March, two thousand ten.
PRESENT:
AMALYA L. KEARSE,
PETER W. HALL,
Circuit Judges,
JED S. RAKOFF,*
District Judge.
_______________________________________________
Macsen Elyse,
Plaintiff-Appellant,
v. No. 08-3430-cv
Bridgeside Incorporated, a New York Company, Peter
Brunetti, Edkins Auto Sales, Inc., a New York Company,
Defendants-Appellees.
______________________________________________
For Appellant: MACSEN ELYSE, pro se, Roselle,
New Jersey.
*
Honorable Jed S. Rakoff, of the United States District Court for the Southern
District of New York, sitting by designation.
For Appellees: ROBERT SGARLATO (DAVID
METH, on the brief) Slater and
Sgarlato, P.C., Staten Island, N.Y.
Appeal from a judgment of the United States District Court for the Eastern District of
New York (Cogan, J.).
UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED AND
DECREED that the order of the district court is AFFIRMED.
Plaintiff-Appellant Macsen Elyse, pro se, appeals from a June 2008 decision of the
district court, denying his motions to alter or amend the judgment, pursuant to Federal Rule of
Civil Procedure 59(e), or for a partial new trial on the issue of damages, pursuant to Federal Rule
of Civil Procedure 59(a). We assume the parties’ familiarity with the facts and procedural
history of the case.
Elyse principally challenges the district court’s denial of his motion for either (1) an
alteration or amendment of the judgment to increase the damages award from $18,000.00 to
$227,057.96, or (2) a partial new trial on the issue of damages. His motion to increase the
damages award was properly denied by the district court on the ground that additur is
constitutionally impermissible. See, e.g., Dimick v. Schiedt, 293 U.S. 474, 486-88 (1935);
Gentile v. County of Suffolk, 926 F.2d 142, 155 (2d Cir. 1991); Crane v. Consol. Rail Corp., 731
F.2d 1042, 1046 (2d Cir.), cert. denied, 469 U.S. 854 (1984).
Further, although Elyse argues that his motions should have been granted because “the
damages verdict goes against the clear weight of the evidence,” the weight of the evidence is an
argument to the factfinder, not a ground for reversal on appeal, see, e.g., Ceraso v. Motiva
Enterprises, LLC, 326 F.3d 303, 316-17 (2d Cir. 2003); Piesco v. Koch, 12 F.3d 332, 344-45 (2d
Cir. 1993); Schwartz v. Capital Liquidators, Inc., 984 F.2d 53, 54 (2d Cir. 1993). Thus, the
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district court’s denial of a new-trial motion that was based on the weight of the evidence is
generally unreviewable, see, e.g., Haywood v. Koehler, 78 F.3d 101, 104 (2d Cir. 1996);
Stonewall Ins. Co. v. Asbestos Claims Mgmt. Corp., 73 F.3d 1178, 1199 (2d Cir. 1995), although
a denial is reviewable to the extent that the contention is that the district court applied the wrong
legal standard, see, e.g., Piesco, 12 F.3d at 344.
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,” see, e.g., id. at 344-45, or
“a miscarriage of justice,” Sorlucco v. N.Y. City Police Dept., 971 F.2d 864, 875 (2d Cir. 1992)
(quotation mark omitted) (quoting Smith v. Lightning Bolt Prods. Inc., 861 F.2d 363, 370 (2d
Cir. 1988)). In making its determination, however, the court must refrain from invading the
province of the jury to evaluate the credibility of the witnesses. See, e.g., Tennant v. Peoria &
P.U. Ry. Co., 321 U.S. 29, 35 (1944); Piesco, 12 F.3d at 345 (district court must “bear[] in mind
. . . that [w]here the resolution of the issues depend[s] on assessment of the credibility of the
witnesses, it is proper for the court to refrain from setting aside the verdict and granting a new
trial” (alteration in original) (quoting Metromedia Co. v. Fugazy, 983 F.2d 350, 363 (2d Cir.
1992)); Sorlucco, 971 F.2d at 875.
We see no application of an erroneous legal standard or other error of law in this case,
and the findings of the district court precluded any possible conclusion that the jury’s verdict
could be viewed as seriously erroneous or a miscarriage of justice. The court found that Elyse
essentially sought “to reargue the credibility of plaintiffs’ witnesses”; that “there were numerous
bases upon which the jury could refuse to accept the opinion of plaintiffs’ expert”; and that the
verdict “was not against the weight of the evidence.” Mada Int’l Auto Auction, Inc. v. Bridgeside
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Inc., No. 07 Civ. 286 (BMC), 2008 WL 2414799, at *2 (E.D.N.Y. June 13, 2008) (emphasis
added). The denials of Elyse’s motions to set aside the verdict and for a new trial are thus not
reviewable.
Finally, to the extent that Appellant’s brief now challenges the district court’s denial of
attorney’s fees, we are without jurisdiction to review that part of the district court’s order because
Appellant did not specify in his notice of appeal that he wished to appeal that portion of the
district court’s order. See Fed. R. App. P. 3(c)(1)(B) (“notice of appeal must . . . designate the
judgment, order, or part thereof being appealed”); see also New Phone Co. v. City of New York,
498 F.3d 127, 131 (2d Cir. 2007) (per curiam) (holding that appellate jurisdiction “depends on
whether the intent to appeal from [a] decision is clear on the face of, or can be inferred from, the
notice[] of appeal”).
We have reviewed Appellant’s remaining arguments and find them to be without merit.
For the reasons stated above, the judgment of the district court is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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