Martin Tretola and his wife Cena Tretola at T & T Gunnery, their store in Seaford. (Newsday)
A gun dealer who successfully sued Nassau County for false arrest and malicious prosecution may have deserved significant damages, but not to the tune of $5 million, said a judge who shaved the jury award to about 20 percent of its original amount.
Viewing the payment of $3 million in compensatory damages and $2 million in punitive damages to Martin Tretola and Marbles Enterprises as excessive, given the case’s circumstances and case law on acceptable damage amounts, Eastern District Judge Denis Hurley (See Profile) slashed the total determination to $935,605—$760,605 for compensatory damages and $175,000 for punitive damages.
The judge said that if Tretola didn’t accept that amount he would order a new trial on both liability and damages. Tretola, the owner and operator of Marbles Enterprises which does business at T&T Gunnery, has said in court papers that he will accept the remittur.
Though reducing the award in Tretola v. County of Nassau, 08-cv-3225, on Feb. 19, Hurley acknowledged a police officer’s “planned transgressions geared to essentially destroy” the dealer and rebuffed the county’s bid to vacate the verdict or at least hold a new trial.
The underlying suit arises from a May 2007 inspection of T&T Gunnery’s Seaford store by Nassau County Police Officer Eric Faltings, a member of the force’s pistol licensing bureau, along with the fire marshal’s office and the U.S. Bureau of Alcohol Tobacco and Firearms.
Tretola would later argue that the “massive raid” was rooted in Faltings’ attempt to punish Tretola after a heated verbal exchange between the pair in 2006 over what paperwork was necessary for a firearm’s release.
The county pointed to evidence suggesting the inspection was spurred by another officer’s discovery of bookkeeping errors in Tretola’s records.
After the inspection, the business received a number of summonses, including one from the fire marshal faulting the maintenance of fire extinguishers.
More than a month later, the business pleaded guilty to a lesser included offense in county district court on the fire marshal’s summons. The outcome of the other summonses is unclear.
During the inspection, Faltings questioned the proximity of a gas line to where guns were fired.
Faltings arrested Tretola three weeks later, on June 1, for felony-level reckless endangerment.
The gas line had long been inactive and Tretola told Faltings it was not working prior to his arrest.
In February 2008, Tretola’s criminal case was dismissed on speedy trial grounds.
In August 2008, he and his business sued Faltings, Nassau County and other officers, seeking $12 million in damages.
A jury found for Tretola after a six-day trial in August 2012.
Prior to the civil trial, Nassau County District Attorney Kathleen Rice in May 2012 announced the arrests of Tretola and others for allegedly showing undercover officers how to modify legal semi-automatic rifles into illegal assault weapons.
A grand jury dismissed the complaint against Tretola and the others, and he filed a separate civil rights action in October 2013, seeking $8 million. That case is pending.
In the current case, the county argued the false arrest verdict was defective because there was probable cause for the arrest. Moreover, it called the damages award “grossly excessive.”
Challenge to Damages
In a 68-page decision, Hurley refused to disturb the jury’s findings on liability but said the county’s challenge to the damages had merit.
At trial, Tretola testified about the pain and suffering he experienced from his arrest and lost business, which caused sleep problems and weight gain.
Tretola also said he was subjected to negative media coverage and was shunned by law enforcement friends. Others described a change in his demeanor with one witness saying Tretola went from “happy-go-lucky” to “more guarded.”
“Given the totality of the evidence presented, the jury was justified in returning a significant non-economic compensatory award. But ‘significant’ means far less than” the jury’s determination, Hurley said.
The injuries covered “a relatively short span of time” and were offered “without any evidence of medical or counseling services being provided,” the judge said, adding that Tretola was not physically harmed.
Hurley looked to other cases to calculate proper non-economic damages, such as Zeno v. Pine Plains Central School District, 702 F.3d 655, where a half-white, half-Latino teenager endured three and a half years of harassment from classmates before dropping out of school without a diploma.
A jury awarded the student $1.25 million in compensatory damages but the award was pared down to $1 million and affirmed by the U.S. Court of Appeals for the Second Circuit.
Hurley said Zeno was distinguishable by recovering under different laws and implicating the boy’s long-term educational and employment opportunities.
But like the current case, there was no medical testimony, no physical injuries and proof of the plaintiffs’ emotional state was buttressed by non-professional testimony from others.
Hurley concluded $175,000 was the top award for Tretola’s non-economic injuries that did not “shock the judicial conscience.” He also set Tretola’s economic losses at $585,605.
As for punitive damages, Hurley said they were “clearly” justified, but the question was the amount.
The county suggested $10,000, if anything.
Tretola argued punitive damages should remain undisturbed, or not reduced to extent sought by the county, in order to “send a message.”
Hurley said Tretola’s argument could “not be squared with established” Second Circuit law and also noted that Tretola’s own attorney acknowledged during closings that punitive damages were not in the range of millions.
The county pointed to the circuit reduction in punitive damages to $100,000 from $300,000 for an excessive force and battery suit.
In Payne v. Jones, 711 F.3d 85, a Vietnam veteran was combative and disoriented after being brought to the hospital when he cut his thumb. He was arrested by a police officer who then punched and kneed the handcuffed veteran.
The circuit observed it had sustained punitive awards in police misconduct cases of around $150,000.
Hurley said it was “obvious” that a “drastic reduction” was in line, but Faltings’ acts “were at least as sanctionable via a substantial punitive damage award as the dreadful, but unpremeditated misconduct by the defendant officer in Payne, and probably, more so.”
Steven Harfenist of Friedman, Harfenist, Kraut & Perlstein in Lake Success represented Tretola in the civil and underlying criminal case.
In an interview, he said Hurley made it “clear that he was outraged by the conduct.”
Harfenist said he “always understood the punitive damages award was not sustainable” in light of the circuit’s current case law. Still, he was “a little disappointed” in the compensatory damages award, saying the smaller sum “minimized” what Tretola endured.
“In the end, Marty was sufficiently satisfied with the end result and he wanted to move on with his life,” said Harfenist, adding there is still a pending application for an award of legal fees and prejudgment interest on the economic loss.
Speaking of the separate lawsuit, Tretola v. D’Amico, 13-cv-5705, Harfenist said, “They just don’t want to leave him alone and let him run his business.”
In a statement, Nassau County Attorney Carnell Foskey said “We are pleased that the court recognized that the jury verdict was excessive, and that the court properly reduced the amount that the jury awarded. Presently, the county is examining all of its options with respect to an appeal.”
The county declined to comment on Falting’s employment status.
Assistant County Attorneys Joseph Nocella and Ralph Reissman appeared for Nassau County.
Tretola was also represented by Charles Horn of Friedman Harfenist.