Opinion
9645 Index 160714/15
06-18-2019
Kathleen M. ELIAS, et al., Plaintiffs–Appellants, v. The CITY OF NEW YORK, et al., Defendants–Respondents.
Rubenstein & Rynecki, Brooklyn (Harper A. Smith of counsel, Brooklyn), for appellants. Zachary W. Carter, Corporation Counsel, New York (Zachary S. Shapiro of counsel, New York), for respondents.
Rubenstein & Rynecki, Brooklyn (Harper A. Smith of counsel, Brooklyn), for appellants.
Zachary W. Carter, Corporation Counsel, New York (Zachary S. Shapiro of counsel, New York), for respondents.
Sweeny, J.P., Manzanet–Daniels, Kapnick, Oing, Singh, JJ.
On December 20, 2014, plaintiff Kathleen M. Elias went to Bryant Park to ice skate with her family. While waiting in line, plaintiff took a few "swigs" of brandy. Bryant Park security then refused to allow her on the ice because she was intoxicated and asked her to leave the park. Plaintiff became belligerent, arguing with security staff and the NYPD. The parties sharply dispute whether plaintiff physically assaulted a police officer prior to being arrested. The parties also dispute how plaintiff came to be lying face down on the ground, and whether she actively resisted arrest. During the course of handcuffing and arresting plaintiff, plaintiff's wrist was fractured.
Defendants met their initial burden on summary judgment with respect to the excessive force-related claims by providing the deposition testimony of NYPD officers Mukhtarzada and Winters. They testified that plaintiff was intoxicated, belligerent, refused to cooperate with police instructions, drew the attention of a crowd, and actively resisted arrest (see N.M. v. City of New York, 171 A.D.3d 586, 96 N.Y.S.3d 856 [1st Dept. 2019] ; Walker v. City of New York, 148 A.D.3d 469, 470, 50 N.Y.S.3d 320 [1st Dept. 2017] ; Wilson v. City of New York, 147 A.D.3d 664, 664, 46 N.Y.S.3d 888 [1st Dept. 2017] ).
However, plaintiff sufficiently raised a triable issue of fact as to the reasonableness of the use of force by the police. Claims that law enforcement used excessive force during an arrest are analyzed under the Fourth Amendment and its standard of objective reasonableness ( Koeiman v. City of New York, 36 A.D.3d 451, 453, 829 N.Y.S.2d 24 [1st Dept. 2007], lv denied 8 N.Y.3d 814, 838 N.Y.S.2d 840, 870 N.E.2d 160 [2007] ; see also Mendez v. The City of New York, 137 A.D.3d 468, 471–472, 27 N.Y.S.3d 8 [1st Dept. 2016] ). Use of force "must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight" ( Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 [1989] ). "The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation" ( id. at 396–397, 109 S.Ct. 1865 ). "The determination of an excessive force claim requires consideration of all of the facts underlying the arrest, including the severity of the crime at issue, whether the suspect posed an immediate threat to the safety of the officers, and whether the suspect was actively resisting arrest" ( Koeiman, 36 A.D.3d at 453, 829 N.Y.S.2d 24 [paraphrasing Graham, 490 U.S. at 396, 109 S.Ct. 1865 ]; see also Pacheco v. City of New York, 104 A.D.3d 548, 549–550, 961 N.Y.S.2d 408 [1st Dept. 2013] ).
In this case, plaintiff presented competent proof, in the form of deposition testimony by plaintiff, her husband, and a security supervisor who witnessed the event, that immediately prior to her arrest she was sitting on a chair and did not assault any police officer. As the parties sharply dispute the circumstances leading up to the arrest, "the question of whether the use of force was reasonable under the circumstances is generally best left for a jury to decide" ( Holland v. City of Poughkeepsie, 90 A.D.3d 841, 844, 935 N.Y.S.2d 583 [2d Dept. 2011] ; see also Relf v. City of Troy, 169 A.D.3d 1223, 1224, 94 N.Y.S.3d 672 [3d Dept. 2019] ; Wright v. City of Buffalo, 137 A.D.3d 1739, 1742, 29 N.Y.S.3d 723 [4th Dept. 2016] ).
Plaintiff also presented competent evidence that she suffered from a potentially compensable injury, a fractured wrist, as a result of police action. Both Police Officer Bernstein and plaintiff testified that she went to Bellevue Hospital on the evening of her arrest, had an x-ray performed on her wrist, and received a splint. Plaintiff further testified that, two days later, an orthopedic surgeon diagnosed her as having a fractured wrist.
The loss of services claim should also be reinstated as it was only dismissed because it was derivative in nature.
We have considered the parties' remaining arguments and find them unavailing.