Opinion
13363 Index No. 154550/17 Case No. 2020-02314
03-16-2021
Beldock Levine & Hoffman LLP, New York ( Karen Dippold of counsel), for appellant. James E. Johnson, Corporation Counsel, New York ( Zachary S. Shapiro of counsel), for respondents.
Beldock Levine & Hoffman LLP, New York ( Karen Dippold of counsel), for appellant.
James E. Johnson, Corporation Counsel, New York ( Zachary S. Shapiro of counsel), for respondents.
Manzanet–Daniels, J.P., Mazzarelli, Mendez, Shulman, JJ.
Order, Supreme Court, New York County (Laurence L. Love, J.), entered March 3, 2020, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Defendants made out a prima facie case that Officer Gleason's actions were objectively reasonable under the circumstances, which required split-second decision making ( Pacheco v. City of New York, 104 A.D.3d 548, 549, 961 N.Y.S.2d 408 [1st Dept. 2013] ; Elias v. City of New York, 173 A.D.3d 538, 102 N.Y.S.3d 192 [1st Dept. 2019] ). The record raises disputed issues of fact as to whether Officer Gleason knew or should have known that plaintiff's decedent, Garry Conrad, was an emotionally disturbed person at the time of their interaction. However, even using the Patrol Guide guidelines applicable to interactions with emotionally disturbed persons to inform the standard of care ( see Lubecki v. City of New York, 304 A.D.2d 224, 233–234, 758 N.Y.S.2d 610 [1st Dept. 2003], lv denied 2 N.Y.3d 701, 778 N.Y.S.2d 459, 810 N.E.2d 912 [2004] ), under the totality of the circumstances, Officer Gleason was entitled to qualified immunity because his actions in attempting to arrest Conrad were matters of discretion and professional judgment that did not violate any clearly established procedures or protocol ( see Davila v. City of New York, 139 A.D.3d 890, 892–893, 33 N.Y.S.3d 306 [2d Dept. 2016], lv denied 28 N.Y.3d 914, 2017 WL 580238 [2017] ; Pacheco, 104 A.D.3d at 549, 961 N.Y.S.2d 408 ).
Plaintiff no longer contends that two other officers violated protocols in using deadly force after Conrad pulled out a knife, and any claim that Officer Gleason's use of force in connection with the attempted arrest proximately caused Conrad's death is highly attenuated, given the intervening conduct ( see County of Los Angeles v. Mendez, ––– U.S. ––––, 137 S. Ct. 1539, 1547, 198 L.Ed.2d 52 [2017] ; Ferreira v. City of Binghamton, 975 F.3d 255, 279 [2d Cir.2020] ; see generally Lee v. New York City Hous. Auth., 25 A.D.3d 214, 220, 803 N.Y.S.2d 538 [1st Dept. 2005] )
As for the assault and battery claims, Officer Gleason had probable cause to arrest Conrad, for, among other things, aggravated harassment, and because plaintiff does not allege and the record does not show that Conrad sustained injuries as a result of Gleason's attempted arrest, those claims were properly dismissed ( see Price v. City of New York, 172 A.D.3d 625, 628–629, 103 N.Y.S.3d 31 [1st Dept. 2019] ; Davidson v. City of New York, 155 A.D.3d 544, 544, 65 N.Y.S.3d 520 [1st Dept. 2017] ).