UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse, Foley Square, in the City of New York, on the 20th day of May , two thousand and two.

PRESENT:

HON. ELLSWORTH VAN GRAAFEILAND, HON. THOMAS J. MESKILL, HON. BARRINGTON D. PARKER, JR., Circuit Judges.

HAIRSMITH INC., Plaintiff, RONALD DINER, Plaintiff-Appellee, SUMMARY ORDER -v.- No. 01-7721

RICHARD PELLICCIA and SANTO PELLICCIA, JR., Defendants-Appellants.

Counsel for Appellants: Edward M. Gould, Islip, NY (Rodney L. Drake, Bohemia, NY, on the brief)

Counsel for Appellee: Richard A. Miller, Miller & Skubik, LLP (Jacqueline M. Skubik, on the brief), Islandia, NY Appeal from the United States District Court for the Eastern District of New York (E.

Thomas Boyle, Magistrate Judge).

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court be and it hereby is AFFIRMED.

Defendants-Appellants Richard Pellicia and Santo Pellicia, Jr. appeal from a March 29, 2001 jury verdict and the judgment entered thereon on March 30, 2001 in the United States District Court for the Eastern District of New York (E. Thomas Boyle, Magistrate Judge). The jury found in favor of the plaintiff-appellee, Ronald Diner, on his claims for violations of 42 U.S.C. 1981 and 1985(3) and awarded $40,000 in compensatory damages.

The evidence adduced at trial was that in 1998, Diner contracted with the Pellicias to lease office space for his haircutting business in Farmingville, NY. When Diner met with the Pellicias to discuss the possibility of leasing the space, both Richard and Santo Pellicia asked him, "What are you?" Diner responded, "What do you mean?" and Richard and Santo separately replied, "What is your nationality?" Diner responded to both that he was half German and half Italian, when in fact his ancestry is German and Filipino. Diner testified that he told the Pellicias that he was half Italian because he felt that if he told the truth they would refuse to lease the store to him. Diner testified that his relationship with the Pellicias soured approximately three months into his lease, when they learned that he was not Italian. From that point on, according to the trial testimony, the Pellicias committed numerous acts in an attempt to drive Diner from the location and terminate his lease, because he was not of Italian ancestry and because they believed he was Puerto Rican. For example, the Pellicias removed Diner's signs and gave them to a competitor, demanded that Diner's customers park behind the building under threat of being towed, turned off the water to his shop, and destroyed one of the signs. The Pellicias also made several derogatory remarks about Diner's perceived Puerto Rican ancestry. At the conclusion of the trial the jury rendered a verdict in favor of Diner on his § 1981 and § 1985(3) claims and awarded Diner compensatory damages of $10,000 against each defendant on each claim, for a total of $40,000.

Defendants challenge the verdict on three grounds. First, they argue that they are immune from Diner's § 1981 and § 1985(3) claims because they are parties to the contract that was interfered with — Diner's lease. Defendants seem to confuse §§ 1981 and 1985(3) claims with a common law claim for tortious interference with contract. Unlike a tortious interference claim, however, a claim under § 1981's "make and enforce contracts" clause may be asserted against a party to the contract at issue, see, e.g., Lytle v. Household Mfg., Inc., 494 U.S. 545 (1990), and a § 1985(3) claim need not implicate any contract at all. See, e.g., Mian v. Donaldson, Lufkin &

Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993) (per curiam).

Second, defendants argue that the evidence adduced at trial was insufficient to sustain the jury's damage award. The gist of defendants' argument is that Diner failed to prove that he had suffered any economic loss to his business. Diner, however, did not seek compensation for economic loss. Rather, he sought damages for emotional distress only, and the jury was charged accordingly. Defendants do not contend that Diner failed to prove that he suffered emotional distress. The appropriate damages were for the jury to determine, and the jury's damages award will not be disturbed on appeal unless "the award is so high as to shock the judicial conscience and constitute a denial of justice." O'Neill v. Krzeminski, 839 F.2d 9, 13 (2d Cir. 1988)

(citations and internal quotations omitted). The jury's $40,000 damages award, which is supported by the evidence adduced at trial, does not shock the judicial conscience. Thus, defendants' argument is without merit.

Defendants' final contention is that Diner misled the court and the jury as to the qualifications of one of his witnesses, William Bezmen. Defendants argue that Bezmen's testimony should not have been admitted because Diner deceived the court, the jury, and the defendants into believing that Bezmen was a physician, when in fact he is a registered nurse.

The trial transcript makes clear that Diner practiced no such deception, as Diner's counsel elicited the following testimony from Bezmen on direct examination:

Q: What is your occupation?

A: A clinical nurse specialist in psychiatry.

Q: Do you hold any licenses?

A: Yes, as an RN. A certification as a clinical hypnotherapist. I am board certified as an expert in traumatic stress. I hold a diplomate in — with the American Academy of Experts on Traumatic Stress.

Defendants also argue that, as a nurse, Bezmen was not qualified to offer expert testimony regarding Diner's diagnoses. This argument also lacks merit because Bezmen, who had treated Diner, testified as a fact, not an expert, witness. Regardless, because defendants failed to object to Bezmen's testimony — or even cross-examine him — on any of these grounds, they have forfeited their right to raise these arguments on appeal. See Fed. R. Evid. 103(a)(1); United States v. Carson, 52 F.3d 1173, 1187 (2d Cir. 1995).

Accordingly, the decision is affirmed.

FOR THE COURT:

ROSEANN B. MACKECHNIE, Clerk By: