MEMORANDUM AND ORDER
A. Facts
B. Procedural History
Before the Court is plaintiffs Elise Morris On November 12, 2002, plaintiffs filed the ("Morris") and Douglas Katsaros' instant action. In their amended complaint, ("Katsaros") (collectively "plaintiffs") filed on April 8, 2003, plaintiffs asserted petition for certification of an interlocutory eleven causes of action: (1) breach of implied appeal of this Court's October 3, 2005 and warranty of habitability, (2) constructive March 31, 2007 Orders in the above- eviction, (3) negligence, (4) gross negligence, captioned action. (5) intentional infliction of emotional distress, (6) negligent infliction of emotional distress, (7) violation of New York City's Local Law 1, (8) nuisance, (9) intentional/fraudulent misrepresentation, (10) negligent misrepresentation, and (11) violation of the Plaintiffs brought the instant action RLPHRA, 42 U.S.C. §§ 4851-56.Plaintiffs against their former landlords, defendants sought relief in the form of rent abatement, Herbert Flaig and Marilyn Flaig (collectively, compensatory damages, punitive damages, "defendants"), alleging state claims, as well as and treble damages under the RLPHRA. a violation of the federal Residential Lead-Based Paint Hazard Reduction Act On February 27, 2004, defendants moved ("RLPHRA"), arising from a lead-paint for summary judgment as to all claims, and condition in their Brooklyn residence. plaintiffs cross-moved for partial summary judgment on March 2, 2004. On July 29, damages,1 or, in the alternative, a new trial as 2005, Magistrate Judge Viktor V. Pohorelsky to the amount of punitive damages.
On April issued a Report and Recommendation 13, 2007, plaintiffs moved the Court to amend granting in part and denying in part its October 3, 2005 and March 31, 2007 defendants' motion for summary judgment. Orders, and to certify questions resolved in Specifically, plaintiffs' claims of constructive such orders for interlocutory appeal pursuant eviction, negligent infliction of emotional to 28 U.S.C. § 1292(b). Oral argument was distress, and nuisance were dismissed. The held on April 30, 2007.
I. BACKGROUND
Honorable John Gleeson adopted the Report and Recommendation in full on October 3, 2005.
II. DISCUSSION
A. Interlocutory Appeal
1. Standard of Review
This case was reassigned to the undersigned on February 10, 2006. From May 15, 2006 through May 30, 2006, a jury trial was held before this Court on the Pursuant to 28 U.S.C. § 1292(b), a district remaining claims. The jury (1) found court may certify an immediate appeal of an defendants liable for the plaintiffs' claims of interlocutory order if the court finds that the negligence and breach of the implied "order involves a controlling question of law warranty of habitability; and (2) declined to as to which there is substantial ground for find defendants liable as to plaintiffs' federal difference of opinion and that an immediate claim under the RLPHRA, as well as appeal from the order may materially advance plaintiffs' claims for gross negligence, the ultimate termination of the litigation." intentional infliction of emotion distress, However, "[d]istrict court judges have broad intentional misrepresentation, and negligent discretion to deny certification even where the misrepresentation. The jury awarded statutory criteria are met." SPL Shipping Ltd. $5,268.01 in compensatory damages, but v. Gujarat Cheminex, Ltd., No. 06-CV-15375 declined to award rent abatement damages. (KMK), 2007 WL 1119753 (S.D.N.Y. Apr. (Court Ex. 5.) The jury also determined that 12, 2007) (quoting Nat'l Asbestos Workers punitive damages were warranted against Med. Fund v. Philip Morris, Inc., 71 F. Supp. defendants. (Court Ex. 5.) After further 2d 139, 166 (E.D.N.Y. 1999) (stating that the deliberation, the jury awarded $110,000 in authority to deny certification, even where the punitive damages solely against defendant three statutory criteria are met, is Herbert Flaig. (Court Ex. 6.) "independent" and "unreviewable")) (additional citation omitted).
The Second disappear in the light of a complete and final the court to amend its order. See, e.g., Green, record,'" and that "Congress also sought to 2006 WL 3335051, at *2(finding defendants' assure the prompt resolution of knotty legal request for certification untimely following problems." Weber v. United States, -- F.3d --, two-month delay); Ferraro v. Sec'y of U.S. 2007 WL 1097077 (2d Cir. Apr. 13, 2007) Dept. of Health & Human Servs., 780 F. Supp. (quoting Koehler v. Bank of Bermuda Ltd., 978, 979 (E.D.N.Y. 1992) (holding that "there 101 F.3d 863, 864 (2d Cir. 1996)) (additional was no justification for plaintiff's delay in citations omitted). Therefore, interlocutory requesting certification" and "[m]oreover, appeal is "'a rare exception' where, in the plaintiff's two and a half month delay is an discretion of the district judge, it 'may avoid indication that the saving of time is of little protracted litigation.'" In re World Trade Ctr. concern in this case"). Similarly, the Seventh Disaster Site Litig., 469 F. Supp. 2d 134, 144 Circuit has held that a district court abused its (S.D.N.Y. 2007) (quoting Koehler, 101 F.3d discretion by granting § 1292(b) certification at 865-66 (2d Cir. 1996)). where the party seeking to appeal waited three months before making the request without Weir v. Propst, 915 F.2d 283, 287 (7th Cir. 1990)
2. Timeliness Providing a Proper Reason for the Delay
Under Section 1292(b), a party may (holding that "[t]he ten day limitation in appeal an order which has been certified for section 1292(b) is not to be nullified by interlocutory review within ten days after the promiscuous grants of motions to amend"). entry of the order. 28 U.S.C. § 1292(b). As in Green, Ferraro and Weir, this Court Neither Section 1292(b) nor Fed. R. Civ. P. finds that plaintiffs' request for Section 5(a), which governs petitions for permission 1292(b) certification of a question decided by to appeal, specify a time in which a party must summary judgment order nearly two years ago move for the order itself to be certified for is untimely. The Court therefore could interlocutory appeal. However, courts have decline to certify the October 3, 2005 Order held that any delay in seeking amendment and for interlocutory appeal on timeliness grounds certification "must be reasonable." Green v. alone. In any event, as set forth below, none City of New York, No. 05-CV-0429 (DLI) of the other criteria support certification of the (ETB), 2006 WL 3335051, at *2 (E.D.N.Y. summary judgment issues in the October 3, Oct. 23, 2006). 2005 order or the other legal issues decided in the March 31, 2007 order.
3. Mixed Questions of Law and Fact
In this case, where plaintiffs seek relief from a summary judgment order issued nearly two years ago, and where the plaintiffs proceeded to trial without moving to certify The Court also agrees with defendants that this question for interlocutory appeal granting certification pursuant to section beforehand, amendment and certification of 1292(b) would require the Court of Appeals to the October 3, 2005 summary judgment order consider mixed questions of law and fact. The would be improper under Section 1292(b). "question of law" certified for interlocutory The Eastern District of New York has appeal "must refer to a 'pure' question of law previously denied certification for that the reviewing court 'could decide quickly interlocutory appeal where the party waited and cleanly without having to study the nearly two and a half months before moving record.'" In re Worldcom, Inc., 2003 WL 21498904, at *10 (quoting Ahrenholz v. Bd. of 2000) ("In determining whether a controlling Trs. of Univ. of Ill., 219 F.3d 674, 676-77 (7th question of law exists the district court should Cir. 2000)); S.E.C. v. First Jersey Securities, consider whether: reversal of the district Inc., 587 F. Supp. 535, 536 (S.D.N.Y. 1984) court's opinion could result in dismissal of the (holding that, where an appeal "would action; reversal of the district court's opinion, necessarily present a mixed question of law even though not resulting in dismissal, could and fact, not a controlling issue of pure law," significantly affect the conduct of the action, the district court's order was "not appropriate or; the certified issue has precedential value for certification pursuant to 28 U.S.C. § for a large number of cases.") (citing 1292(b)"); Abortion Rights Mobilization, Inc. Klinghoffer, 921 F.2d at 24-25, and In re v. Regan, 552 F. Supp. 364, 366 (S.D.N.Y. Oxford Health Plans, Inc., 182 F.R.D. 51, 54-1982) ("Nor is [§ 1292(b) certification] 55 (S.D.N.Y. 1998)). Plaintiffs present four appropriate for securing early resolution of alleged "controlling questions of law" for disputes concerning whether the trial court interlocutory appeal:
(1) whether a landlord properly applied the law to the facts.") (citing must know of the duties imposed upon him by Link v. Mercedes-Benz of N. Am., Inc., 550 the RLPHRA in order to incur liability under F.2d 860, 863 (3d Cir. 1977)). In the instant the statute;2 (2) whether the plaintiffs are case, the questions presented for interlocutory entitled to rent abatement under New York appeal by plaintiffs would require the Second Real Property Law § 235-b; (3) the Circuit to review this Court's application of constitutionality of the punitive damages the law to the facts presented at trial with award; and (4) plaintiffs' claim of negligent regard to (1) defendants' knowledge of facts infliction of emotional distress. (Pls.' Br., at and law with relation to the RLPHRA; (2) the 10-20.) The Court finds that none of these extent of defendants' breach of the warranty questions are "controlling" for purposes of of habitability and the valuation of plaintiffs' Section 1292(b). residence; and (3) whether negligence on defendants' part caused plaintiffs to suffer emotional distress (as well as the extent of such distress).
a. RLPHRA
4. Controlling Question of Law
Under these circumstances, First, plaintiffs assert that "reversal of this such questions do not present issues of "pure Court's finding that the defendants could not law" and therefore are not appropriate for be liable under the RLPHRA unless they interlocutory review. knew of their duties under the Regulations will require summary judgment to be entered on Liability in Favor of the Plaintiffs on that Claim As plaintiffs themselves point out, RLPHRA would only result in liability being plaintiffs' damages, if any, as plaintiffs entered in plaintiffs' favor as to this claim, acknowledge. and would not "terminate the action," thus indicating that, at least with respect to the instant case, the issue of whether liability under the RLPHRA requires a "knowing" Following the guidance of the Second violation is not a "controlling" issue of law. Circuit, the Court finds that the excessiveness See, e.g., Klinghoffer, 921 F.2d at 24 of the punitive damages award does not (providing as examples of legal issues that present a question of law under Section terminate a case, in personam and subject- 1292(b). In Casey v. Long Island R.R., 406 matter jurisdiction); Green, 2006 WL F.3d 142, 147 (2d Cir. 2005), the Court of 3335051 at *2 ("Here, defendants' proposed Appeals held that: questions of law for appeal are not controlling because, even if successful, they would only [P]laintiff conceded at oral argument terminate the action with respect to one that the matter of the excessiveness of subclass in the litigation."). the jury's award does not present a question of law.
Rather, it presents a That Second, plaintiffs argue that, with regard evaluation is not reviewed de novo, as to whether plaintiffs are entitled to rent a question of law would be, but rather abatement damages under New York Real is accorded deferential review. Nor is Property Law § 234-b, this Court's "denial of there any dispute as to the proper legal plaintiffs' motion for judgment as a matter of standard for the court's evaluation of law and a new trial on damages was based on the evidence to support the jury's a novel interpretation of New York law" and award. The district court assessed "conclusions that . . . are not supported by the whether the $1.3 million finding was trial record." (Pls.' Br., at 17.)
b. Rent Abatement Question as to the Proper Evaluation of the Evidence Introduced at Trial
First, with so high as to shock the judicial regard to whether the Court's finding is conscience; the parties agree that that supported by the trial record, the Second is the correct standard. "In sum, the Circuit declines to "decide matters of correctness vel non of an order finding 'evidence sufficiency' on an interlocutory that a monetary verdict is not appeal, even if the underlying order is supported by the evidence but rather is immediately appealable on other grounds." so high as to shock the judicial Davidson v. Chestnut, 193 F.3d 144, 150 (2d conscience, and requiring a new trial Cir. 1999) (declining to review summary unless the claimant accepts a judgment finding on interlocutory appeal remittitur, is not a question of law as where plaintiff alleged that the question to which an immediate interlocutory presented numerous issues of fact) (citing appeal is appropriate under § Johnson, 515 U.S. at 318-19).
Moreover, this 1292(b)." question does not present a "controlling" question of law, as reversal of the Court's (Citations omitted). Contrary to plaintiff's ruling would not terminate the action, but assertion that the Court found the punitive would in fact require a new trial as to damages award to be unconstitutional "based upon a numerical ratio" or "a straight conflicting authority on the issue, or (2) the multiplier analysis," the Court applied the issue is particularly difficult and of first correct standard in evaluating the jury's impression for the Second Circuit." In re punitive damages award. (Pl.'s Br., at 19.) Citigroup Pension Plan Erisa Litigation, No. The Court properly considered (1) the 05-CV-5296 (SAS), 2007 WL 1074912, at *2 reprehensibility of defendants' misconduct; (quoting In re Lloyd's Am. Trust Funds Litig., (2) the disparity between the actual or No. 96-CV-1262, 1997 WL 458739, at *5 potential harm caused to plaintiffs and the (S.D.N.Y. Aug. 12, 1997) (citing Klinghoffer, jury's punitive damages award; and (3) how 921 F.2d at 25)).
c. Punitive Damages
"A mere claim that a district the jury's punitive damages award compared court's decision was incorrect does not suffice to punitive damages awards in similar and to establish substantial ground for a difference more egregious cases. Morris, 2007 U.S. of opinion." Id. (quoting Aristocrat Leisure Dist. LEXIS 28923, at *58-*59, *59-*67 Ltd. v. Deutsche Bank Trust Co. Americas, (citing DiSorbo v. Hoy, 343 F.3d 172, 186 (2d No. 04-CV-10014, 2005 WL 3440701, at *2 Cir. 2003) (holding that a punitive damages (S.D.N.Y. Dec. 14, 2005). Plaintiffs fail to award is excessive under the Constitution if it present a single case that contradicts the "is so high as to shock the judicial conscience Court's holdings as to each of the four legal and constitute a denial of justice"), and State questions presented. See, e.g., Compania Farm Mut. Auto Ins. Co. v. Campbell, 538 Sudamericana de Vapores S.A. v. Sinochem U.S. 408, 418 (2003) (setting forth factors for Tianjin, No. 06-CV-13765 (WHP), 2007 WL determining the reasonableness of a punitive 1002265, at *5 (S.D.N.Y. Apr. 4, 2007) damages award) (internal citation omitted)).
d. Negligent Infliction of Emotional
("[Defendant's] argument that a 'substantial ground for difference of opinion' exists is Distress belied by the fact that only one district court opinion . . . supports its position."); In re The Court also finds that plaintiffs' Citigroup Pension Plan Erisa Litigation, 2007 question regarding the standard applied by the WL 1074912, at *3 ("Defendants do not cite Court for their negligent infliction of a single case suggesting that any difference of emotional distress claim is not "controlling" opinion exists -- let alone a substantial one."); for purposes of Section 1292(b), as reversal of see also Babcock v. Computer Assocs. Int'l, the Court's ruling on this issue would not Inc., No. 00-CV-1648 (JS) (MLO), 2007 WL terminate the action, but would, in fact, 526601, at *1 (E.D.N.Y. Feb. 9, 2007) ("The necessitate a new trial as to liability and/or Second Circuit has also noted that the 'mere damages. presence of a disputed issue that is a question of first impression, standing alone, is for Difference of insufficient to demonstrate a substantial Opinion ground for difference of opinion.")
5. Substantial Ground
(quotoing In re Flor, 79 F.3d 281, 284 (2d Cir. 1996)).
The second factor in the analysis is In the absence of any demonstration that whether there is "substantial ground for substantial ground for difference of opinion difference of opinion" as to the legal issues exists as to any of the legal issues for which presented. 28 U.S.C. § 1292(b). The plaintiffs seek interlocutory review, requirement that such a substantial ground certification on this ground is not appropriate. exists may be met when "(1) there is more to accomplish before final judgment enters on all claim" under the scenario of The third factor in determining whether either acceptance of the remittitur or a short interlocutory appeal is appropriate is whether trial as to damages); see also Evans v. Calmar granting such an appeal would "materially S.S. Co., 534 F.2d 519, 522 (2d Cir. 1976) advance the ultimate termination of the ("An order of remittitur frequently provides litigation." 28 U.S.C. § 1292(b).
6. Material Advancement of the Litigation
"An the means for ending the case by acceptance immediate appeal is considered to advance the of the remittitur and payment of the judgment. ultimate termination of the litigation if that The trouble and expense of a new trial are 'appeal promises to advance the time for trial therefore eliminated."); Donovan v. Penn or to shorten the time required for trial.'" SPL Shipping Co., Inc., 536 F.2d 536, 538 (2d Cir. Shipping Ltd., 2007 WL 1119753, at *3 1976) ("Finality and repose are achieved (quoting In re Oxford Health Plans, Inc., 182 precisely because '[t]he risks of a verdict less F.R.D. at 53 (quoting Charles A. Wright & than the amount to which the remittitur order Arthur R. Miller, Federal Practice & has reduced the plaintiff's recovery are . . . Procedure § 3930 (2d ed. 1996))). Plaintiffs calculated to induce most reasonable plaintiffs fail to indicate how certification of the Court's to accept the remittiur and call it a day.'") orders for interlocutory appeal would advance (quoting Evans, 534 F.2d at 522). Therefore, the ultimate termination of this litigation, and in light of the possibility of an entirely new in fact concede that, regarding the rent trial as to issues raised on interlocutory abatement issue, "a new trial on the amount of appeal, the Court finds that material the abatement would be required." (Pls.' Br., advancement of this litigation would not be at 18.) Furthermore, plaintiffs are not served by section 1292(b) certification, rather permitted to evade the requirement that than by allowing the case to proceed in short plaintiffs accept either a new trial on punitive order to finality by plaintiffs' acceptance of damages or a remittitur (both of which would the remittitur or a trial only as to punitive lead to the effective termination of the damages. lawsuit) by moving for interlocutory review.
Courts in this Circuit have consistently In sum, the criteria for interlocutory declined to certify cases for immediate appeal appeal have not been met. Therefore, the following issuance of a remittitur order, Court denies plaintiffs' motion to certify the rejecting the notion that doing so would Court's previous orders for review by the alleviate the need for a new trial. See, e.g., Second Circuit.
Ortiz-Del Valle v. Nat'l Basketball Assocs., 190 F.3d 598, 600 (2d Cir. 1999) (declining to review district court's order denying Rule 50 and Rule 59 motion conditioned upon plaintiff accepting either a new trial on damages or a remittitur where plaintiff opted for a new trial); Okemo Mountain, Inc. v. Patrick J.
LEXIS 12815, at *4 (D. Vt. Feb. 23, 2007) (declining certification and noting that "[a]s this case currently stands, there is not much Sikorski, No. 93-CV-22, 2007 U.S. Dist.
III. CONCLUSION
For the foregoing reasons, plaintiffs' motion to certify this Court's July 2005 and March 2007 Orders for interlocutory appeal pursuant to 28 U.S.C. § 1292(b) is denied. Plaintiffs have until July 2, 2007 to accept the remittitur, or the Court shall vacate the punitive damages award and order a new trial on the punitive damages issue.
SO ORDERED.
JOSEPH F. BIANCO United States District Judge
1. Following the trial, the parties filed cross- Circuit has held that "Congress passed 28 motions pursuant to Federal Rules of Civil U.S.C. § 1292(b) primarily to ensure that the Procedure 50 and 59. In an order dated March courts of appeals would be able to 'rule on . . 31, 2007, the Court denied plaintiffs' motions . ephemeral question[s] of law that m[ight] in their entirety, and granted defendants' Rule 59 motion for remittitur on the punitive 1 The punitive damages award was conditionally remitted to $50,000. Morris v. Flaig, No. 02-CV-5988 (JFB) (VVP), 2007 U.S. Dist. LEXIS 28923, at *66-*67 (E.D.N.Y. Mar. 31, 2007).
2. A question of law is "controlling" if reversal of the Court's finding as to the "reversal of the district court's order would terminate the action." SPL Shipping Ltd., 2007 WL 1119753, at *2 (quoting Klinghoffer 2 As noted supra, although the Court declines to v. S.N.C. Achille Lauro Ed Altri-Gestione certify the October 3, 2005 Order addressing the Motonave Achille Lauro In Amministrazione knowledge requirement under the RLPHRA on the Stradordinaria, 921 F.2d 21, 24 (2d Cir. basis that plaintiffs' request is untimely, even if 1990)); see also S.E.C. v. Credit Bancorp, this request were timely, the Court would decline Ltd., 103 F. Supp. 2d 223, 227 (S.D.N.Y. to certify the Order for interlocutory appeal for failure to satisfy the Section 1292(b) factors.