Garcia v O'keefe

[*1] Garcia v O'Keefe 2004 NY Slip Op 51224(U) Decided on September 9, 2004 Supreme Court, New York County Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 9, 2004
Supreme Court, New York County

REGINA GARCIA, individually and as administratrix of the ESTATE OF JOSE L. GARCIA, , Plaintiffs,

against

MICHAEL O'KEEFE, individually and as a police officer of the New York City Police Department, & THE CITY OF NEW YORK, Defendants.



116492/93

Shirley Werner Kornreich, J.

Procedural History

This is a wrongful death and personal injury action brought against New York City and New York City Police Officer Michael O'Keefe, by the mother and the estate of Jose L. Garcia to recover for his shooting death. The action was premised on theories of improper stop/false arrest, excessive force and a violation of Mr. Garcia's Civil Rights (42 USC 1983). The jury returned a verdict for plaintiffs on the false arrest claim, awarding Mrs. Garcia past and future pecuniary damages in the amount of $67,200 and $88,400, respectively, and awarding punitive damages in the amount of $15,000. Verdicts for defendants were returned on the wrongful death and Civil Rights claims.

The defendants now move to set aside the verdict against them, arguing that: 1) false arrest was not specifically asserted in the notice of claim; 2) the amount of the pecuniary award was excessive in regard to the evidence produced; 3) the pecuniary loss was not proximately caused by the improper stop and seizure, since Mr. Garcia's conduct subsequent to his stop and seizure provided reasonable cause for his arrest and ultimate death during that arrest; and 4) the punitive damages award was against the weight of the evidence.

Plaintiffs oppose defendants' motion and move: 1) to set aside the verdict which failed to award any damages for pain and suffering; 2) to either award $500,000 for pain and suffering or, alternatively, order a new trial on these damages; 3) to set aside the jury verdict on the Civil Rights (42 U.S.C. 1983) claim; 4) to hold a hearing awarding legal fees on the Civil Rights cause of action; 5) to award interest on the pecuniary loss from the date of the incident to the date of verdict; 6) to increase the punitive damages award to $500,000 or, alternatively, to set the matter down for a new trial on this issue. The motions are consolidated herein for unitary disposition.

On September 30, 1992, plaintiffs filed a Notice of Claim. Paragraph 2 of the Notice stated: [*2]

2. The nature of the claim:

A. Action for personal injuries and conscious pain and suffering sustained

by Jose L. Garcia, as a result of the negligence, carelessness and recklessness of the City of New York, the New York City Police Department, by its agents, servants and/or employees. Also, violation of Jose L. Garcia [sic] Constitutional Civil Rights, loss of services, assault, and battery. B. Action for wrongful death of Jose L. Garcia, as a result of the negligence, carelessness and recklessness of the City of New York, the New York City

Police Department, by its agents, servants and/or employees.

3. The time when, the place where and the manner in which the claim arose:

On or about the 3rd day of July, 1992 at approximately 9:45 p.m., while

Claimant was legally in front of the premises and forced into the vestibule

and lobby area at 505 West 162nd Street, New York, New York[,] he was

assaulted and then shot by Police Officer Michael O'Keefe, without

provocation, while that Officer was on duty on 162nd Street.

At the time[,] Officer O'Keefe was acting as an agent, servant and/or

employee of the City of New York and the New York City Police Department.

This occurrence took place as a result of negligence, carelessness and

recklessness of Police Officer Michael O'Keefe, the City of New York

and the New York City Police Department in causing, permitting and allowing the aforesaid occurrence to take place; in hiring personnel with a propensity towards violence and viciousness, more particularly Police

Officer Michael O'Keefe; in failing to instruct or properly instruct their

personnel, more particularly Police Officer Michael O'Keefe, in the manner in which he is to execute his duties; in permissive use of excessive force, in recklessly discharging with unnecessary deadly force his weapon without

sufficient cause, in failing to abide by proper Police arrest rules and

regulations and procedures; in repeatedly discharging a weapon into Mr.

Garcia after he was already disabled; in negligently assaulting Mr. Garcia

without provocation; in failing to follow proper restraint procedures in an

effort to avoid the use of deadly force; in failing to supervise its personnel, more particularly Police Officer Michael O'Keefe; in violating Claimant's Constitutional Civil Rights; in causing, permitting and allowing the aforesaid occurrence to take place; in failing to avoid the aforesaid occurrence and in otherwise being negligent, careless and reckless in the premises. [emphasis added]

The instant case was tried before me on September 18, 19, 22, 23, 24, 25, 26, 29, 30 and October 1, 2003. Fourteen witnesses testified, and an examination before trial of an unavailable witness was read into evidence. The following testimony was elicited. [*3]

Thomas McPartland, Matteo Brattesani and Michael O'Keefe testified that they were police officers working together in an anti-crime unit in the 34th precinct on the night of July 3, 1992. The anti-crime units consisted of two or three plain clothes police officers who targeted violent street crime. The 34th precinct covered Northern Manhattan, from 155th Street to 215th Street, from the Hudson River to the East River. This precinct was a high crime area saturated with guns, drugs, homicides and robberies.

Officers McPartland, Brattesani and O'Keefe began their shift at 1:00 p.m. and were assigned an unmarked car. McPartland drove the vehicle, O'Keefe occupied the front passenger seat and Brattesani sat in the rear. The Officers responded to various radio calls between 2:10 p.m. and 8:58 p.m. At 11:13 p.m., while their vehicle traveled South, between 163rd Street and 162nd Street, on St. Nicholas Avenue, O'Keefe observed a suspicious male who "possibly" possessed a gun; O'Keefe drew McPartland's attention to him. The man stood on 162nd Street where it intersected with St. Nicholas Avenue. He wore a jacket, despite the extreme summer heat and humidity, and was continually adjusting that jacket.

St. Nicholas Avenue was a two-way street, angling from West to East and intersecting with Amsterdam Avenue where Amsterdam Avenue met West 162nd Street; West 162nd Street was a one-way street going East and had parking lanes on either side. A traffic light was located at the corner of 162nd Street and St. Nicholas Avenue. The officers observed the individual for 10 to 20 seconds and, at Officer O'Keefe's suggestion, decided they wanted to "toss" him. They devised a plan whereby their vehicle would turn up Amsterdam Avenue, travel North to 163rd Street, go West on 163rd Street, drop O'Keefe at the corner of St. Nicholas Avenue and 163rd Street and continue on 163rd Street to Broadway, go South on Broadway and, finally, turn East onto 162nd Street to the corner of St. Nicholas Avenue and 162nd Street, where McPartland and Brattesani would meet up with O'Keefe and aid him in searching the suspicious individual.

The officers began to implement their plan and dropped O'Keefe on St. Nicholas Avenue and 163rd Street. However, McPartland and Brattesani testified that as they proceeded East on 162nd Street, a man holding a gun ran in front of their vehicle. McPartland and Brattesani left their car and chased the man.

Meantime, O'Keefe had been standing and observing the suspicious individual walking back and forth. After approximately 40 seconds, he heard cries of "agua [water]" and "bahando [police]" code words warning of a police presence. The suspicious individual, Jose Garcia, began walking briskly to 505 West 162nd Street, a nearby building. O'Keefe followed, and as Garcia was entering the building, O'Keefe grabbed his shoulder and turned him around. As he did so, O'Keefe, who previously had pulled out his police shield from under his shirt, identified himself as a police officer and told Garcia, in English and Spanish, not to move. Thereupon, Garcia elbowed O'Keefe in his throat and tried to flee into the building. O'Keefe held onto Garcia and was dragged into the building's vestibule

A struggle between the men followed. O'Keefe admitted being fearful and unable to control Garcia. He, thus, called for help over his radio, which had originally been hidden under his shirt. The men continued to wrestle, but Garcia managed to flee into the lobby of the building, O'Keefe dropping his radio in the encounter. The struggle continued in the lobby, neither man besting the other. Finally, Garcia got away from O'Keefe. As he fled, O'Keefe grabbed his shoulder and spun him around. Garcia turned, and O'Keefe saw a gun in his hand. [*4]The gun was pointed at O'Keefe. O'Keefe grabbed Garcia's wrist, diverting the gun, and pulled his own gun. As Garcia pointed the gun at O'Keefe once more, O'Keefe fired his weapon, shooting Garcia in the stomach. Garcia remained standing, and as his body spun around, O'Keefe fired a second shot. Garcia fell to the ground.

O'Keefe, shaken, kicked Garcia's gun away from his body and tried unsuccessfully to place Garcia's hands behind his back, to be handcuffed. In the end, he was unable to do so and handcuffed Garcia with his hands in front. He then went in search of his radio and called for help. He did not know the address of his location and could not give his exact location. He, therefore, ran out of the building to look for the building number, radioed the correct location and waited for back-up to arrive.

In less than a minute, uniformed Police Officers John DelaSandro and William Nolan arrived at the scene. They had heard O'Keefe's radio transmissions stating that an officer needed help and were on their way to the subway station at 162nd Street and St Nicholas Avenue, the locale at which many police units had converged. As they were driving to the location, they heard the building address. When they entered the building lobby, they observed O'Keefe standing over a body. O'Keefe was shaken and his clothing was covered with blood from his waist to his neck. He was panting heavily, out of breath and holding a gun. Officer DelaSandro could not understand what he was saying. Garcia appeared to be dead. He was lying in the center of the lobby with his hands cuffed in front.

During the time O'Keefe had struggled with Garcia, McPartland and Brattesani were attempting to apprehend the man they had observed with a gun. After they disarmed the man and were trying to arrest him, they heard O'Keefe "screaming" over his radio. They let the man go and raced around the area searching for O'Keefe. After O'Keefe's third call, in which he gave the building's address, they were able to locate him and arrived after Officers DelaSandro and Nolan.

The Emergency Medical Technicians ("EMT's") arrived shortly thereafter. Gerardo Toyloy, one of the EMT's, recalled that he had been flagged down as he responded to O'Keefe's radio calls. He was around the corner from the location when he heard the calls. When he arrived in the lobby of 505 162nd Street at 9:33 p.m., he observed an unconscious man lying in the middle of the floor. The man took two breaths and stopped breathing.

Mr. Toyloy asked that the handcuffs be removed and administered CPR. The man, however, was dead and could not be revived. Other than the two breaths, Mr. Toyloy had never seen the man exhibit any signs of life.

Garcia was transported to Columbia Presbyterian Hospital by the EMT's. Officers O'Keefe, McPartland and Brattesani, also, were transported to Columbia Presbyterian by Officers DelaSandro and Nolan. DelaSandro had taken O'Keefe's .38 caliber gun and a .357 caliber revolver given him by either McPartland or Brattesani. The two guns were later given to the desk sergeant and vouchered along with O'Keefe's shirt and Garcia's clothing. At the hospital, the doctors were unsuccessful in reviving Garcia.

Detective Patrick Murphy worked for the police crime scene unit on the night of the shooting. He reported to the scene at approximately 10:20 p.m. He photographed, measured and diagramed the scene and collected evidence. He found two spent bullets in the lobby and recovered blood, which later was identified as that of Garcia, in the vestibule and lobby of the building. He also took photographs of the victim, of O'Keefe and of the clothing of both. [*5]O'Keefe had lacerations on his hand and leg. Garcia's clothing was cut and mutilated; his white t-shirt had two bullet holes in its front, his paisley over-shirt also had two bullet holes in it, and his jacket had one bullet hole on the front, right below the pocket, which hole was surrounded by a "grey cloud" evidencing gun-powder, and one hole in the back of the jacket on the upper left side. That bullet hole had no gun powder residue.

A gun also was recovered from the floor of the lobby and vouchered and tested. It was a fully loaded, 6 shot .38 caliber revolver and contained live ammunition. Both the gun and ammunition were operable, the gun showed signs of discharge but it was not discernable when the gun was last used. The gun's serial number had been defaced.

The guns of O'Keefe, McPartland and Brattesani, as well as the .357 magnum allegedly taken from the man McPartland and Brattesani chased, were inspected.[FN1] McPartland carried one .38 caliber weapon and O'Keefe and Brattesani carried two such weapons. One of O'Keefe's guns had two spent shells. None of the other weapons had recently been discharged, although the .357 magnum and the gun found in the lobby, allegedly belonging to Garcia, had evidence of discharge in their chambers. All of the weapons and ammunition in them were operable.

Dr. Mark Flomenbaum, a forensic pathologist and a medical examiner with New York City, testified regarding the autopsy of Garcia's body. Garcia was brought from Columbia Presbyterian Hospital to the medical examiner's office on July 4, 1992. His clothing also was sent to the medical examiner.

Mr. Garcia was a well-nourished, 6 foot, 1 inch male Hispanic who weighed 170 pounds. He had intact fingernails and no abrasions on his arms or hands. Although there were no bullets in his body, he had two gunshot wounds. Dr. Flomenbaum could not tell which wound was inflicted first.

One bullet entered the left side of Mr. Garcia's abdomen, 48 inches above his heel and 2 ½ inches to the left of his navel, went through the abdominal cavity and stomach, through the aorta and the vertebrae at the twelfth thorasic area, contused the spine and spinal cord and exited the right side of the mid-back. There was an enormous amount of soot on the front of Mr. Garcia's clothing, indicating that the gun was close when this wound was inflicted.

The second bullet entered Mr. Garcia's mid-back at the shoulder region, to the left of the spine. The bullet traveled horizontally, through soft tissue, muscle, the seventh rib and lower lobe of the right lung. It then hit the fifth rib on the right side, went through both lungs, exited the front of his right armpit, bruising his right forearm which was extended. There was no soot or stippling on this entrance wound, indicating that the gun was some distance from the wound. The sharp angle of the bullet path suggested a tangential shot which may reflect Mr. Garcia turning when shot. Additionally, there was blood in the lungs and airways, facts which demonstrated Mr. Garcia was breathing when shot. Moreover, the wounds showed that he was not lying on the ground when shot, and the holes in the clothing illustrated that the clothing was off center and the body twisted when the shootings occurred. Dr. Flomenbaum also found blunt impact of the head and face with contusions of the nose and temporal area of the head. Death [*6]was caused by the gunshot wounds.

The toxicology report showed that Mr. Garcia had cocaine in his blood and brain, and the amount indicated that he would have been under the influence of cocaine. According to Dr. Flomenbaum, cocaine is an anesthetic agent which dulls a person's sensitivity to pain by constricting blood vessels, but will make reflexes quicker and cloud judgment. Further, there was indication that he had been smoking marijuana.

Dr. Jesse Bidanset, a forensic toxicologist, analyzed the toxicology report and testified that Mr. Garcia had cocaine in his blood but not in his bile. He interpreted this as an indication that the cocaine was recently ingested. He further opined that the cocaine had been smoked. He described the effects of such recent use of cocaine as paranoia, aggression, irrationality, feelings of well-being and rapid heart-rate. He also opined that the marijuana use was remote since it was not found in Mr. Garcia's blood or brain, but was found in his urine.

Regina Garcia testified that she was 58 years old at the time of the shooting and had come to the United States from the Dominican Republic in 1987. She had nine children, one of whom was Jose Garcia. Jose had been born in 1967. He was not a citizen and was in the Country illegally. He, however, worked off the books. He lived with her and gave her approximately $250 a week. Eli Garcia, Jose's sister, testified, that Jose helped his mother by cooking and cleaning.

Evidence was introduced and it was stipulated that Jose Garcia was on probation for a drug offense, that he was in violation of that probation and that a warrant was issued for his arrest on November 12, 1991. If he had been arrested on the night of the shooting, he would have been jailed.

After a charge conference, the jury was asked to decide: 1) whether Officer O'Keefe properly stopped and arrested Mr. Garcia; 2) whether Officer Garcia used excessive force in striking and/or shooting Mr. Garcia; 3) whether Officer O'Keefe violated Mr. Garcia's civil rights (42 U.S.C. 1983); 4) whether the City violated Mr. Garcia's civil rights; 5) pecuniary loss, if any, suffered by Regina Garcia to the date of the verdict; 6) pecuniary loss if any, from the date of the verdict into the future; 7) conscious pain and suffering, if any, of Mr. Garcia; and 8) punitive damages, if any.

In regard to the pecuniary damages, the jury was told such damages were compensatory, were for economic loss to Mrs. Garcia which resulted from Jose Garcia's death, and were separate from pain and suffering and injury to Jose Garcia. Another charge was given explaining conscious pain and suffering, and a final charge was given on punitive damages. That charge included the instruction that the amount of punitive damages should reflect the nature and reprehensibility of the defendant's conduct, including the character of the wrongdoing, how long it continued and the awareness of its harm, as well as the actual and potential harm created by the conduct. The parties did not request that any further questions be added to the verdict sheet.

The jury found that Officer O'Keefe did not properly stop and arrest Jose Garcia, found that no excessive force was used, found no civil rights violations, awarded no damages for pain and suffering, but did award pecuniary and punitive damages. After the reading of the verdict sheet, the Court asked counsel if they had any objection to the consistency of the verdicts. They answered that they did not, and the jury was dismissed.

Conclusions of Law [*7]

Defendant's Motion to Set Aside the Verdict

1. Notice of Claim for False Arrest

A tort action asserted against The City of New York, requires a plaintiff to file a notice of claim. GML §50-e(1)(a). Such notice must be in a sworn writing stating the name and address of the claimant, the time, place and manner of the incident and the damages. GML §50-e(2). "At any time after the service of a notice of claim and at any stage of an action or special proceeding [in] which [a notice of claim is required], a mistake, omission, irregularity or defect made in good faith ... may be corrected, supplied or disregarded, as the case may be, in the discretion of the court provided it shall appear that the other party was not prejudiced thereby." GML §50-e(6). See Butler v. Town of Smithtown, 293 AD2d 696, 697-8 (2d Dept. 2002)(where town not prejudiced by defect in notice, notice may be corrected and defect ignored). Indeed, in determining the sufficiency of a notice of claim, courts are not confined to what is said in the notice of claim but should look to the 50-h hearing and other evidence in keeping with the parameters of GML §50-e(6). D'Alessandro v. N.Y.C. Trans. Auth., 83 NY2d 891, 893 (1994). Accord Barrios v. City of NY, 300 AD2d 480,480-1 (2d Dept. 2002), lv. denied 100 NY2d 534 (2003)(defective notice corrected by 50-h hearing and photographs); Halali v. City of NY, 213 AD2d 449, 450 (2d Dept. 1995)(where City not surprised or prejudiced by change in location of accident which was correctly noted in bill of particulars, defective notice of claim could be corrected pursuant to GML §50-e(6)). Courts have recognized that defects in the notice of claim may be disregarded if no prejudice is caused to the municipal defendant since the notice is given to " 'afford the municipality an opportunity to investigate the circumstances surrounding the claim and its merits while information is still available.'" Salas v. Town of Lake Luzerne, 296 AD2d 643, 644 (3d Dept.), lv. denied 99 NY2d 502 (2002).

In the instant case, the Court finds the notice of claim sufficient to apprise the City of plaintiffs' claim of unlawful arrest. Yet, even were this not so, any omission was effectively remedied and the City clearly was not prejudiced.

The notice of claim, here, stated that the incident involved a violation of Mr. Garcia's constitutional rights. The notice specified the date, time and place of the incident and explicitly informed the City that Mr. Garcia had been acting "legally" when he was assaulted by Officer Michael O'Keefe, without provocation and while Officer O'Keefe was on duty as a police officer. It further detailed that Officer O'Keefe failed "to abide by proper Police arrest rules and regulations and procedures." [emphasis added]. Assessing the adequacy of the notice in light of its purpose enabling the City to investigate the claim [Brown v. City of NY, 95 NY2d 389, 393 (2000)] the Court finds the facts recited in the notice sufficient to set forth a claim for an unlawful stop and arrest.

Moreover, defendants' belated motion to dismiss, made for the first time at trial twelve years after the incident, need not be granted since the false arrest cause of action did not substantially alter the notice of claim nor did it cause defendant any prejudice. The facts of the case a police shooting gave rise to an immediate and thorough investigation of what became a crime scene. Scrutiny of the incident was such that the normal photographs, fingerprinting, autopsy and lab tests associated with a shooting death, were supplemented by a Grand Jury investigation and a Police Department Internal Affairs inquiry and hearing. Discovery and all pre-trial proceedings, including jury selection, were conducted on the premise that false arrest [*8]was a cause of action. On these facts, any shortcomings of the instant notice were remedied, no new cause of action was sprung upon the City and the City undeniably was not prejudiced. The false arrest claim, thus, need not be set aside.

2. Pecuniary Award

Nor should the jury's pecuniary award be set aside based upon defendant's argument that it is excessive. CPLR §4404(a) provides that a court may set aside a jury verdict upon motion as a matter of law or "where the verdict is contrary to the weight of the evidence." A jury verdict may be set aside as a matter of law where " 'there is simply no valid line of reasoning and permissible inferences which could possibly lead rational [persons] to the conclusion reached by the jury on the basis of the evidence presented at trial.' " Coakley v. City of New York, 286 AD2d 576, 577 (1st Dept. 2001) citing Cohen v. Hallmark Cards, Inc., 45 NY2d 493, 499 (1978). When confronted with a motion to set aside a verdict based on the weight of the evidence, the court must determine whether " 'the evidence so preponderate[d] in favor of the defendant that [the verdict] could not have been reached on any fair interpretation of the evidence.' " Lolik v. Big V Supermarkets, 86 NY2d 744, 746 (1995). Accord Grassi v. Ulrich, 87 NY2d 954, 956 (1996)(on motion to set aside verdict, after finding sufficient evidence to support verdict, court must consider conflicting evidence on issue and apply test cited in Lolik). In making the determination, the court must accord great deference to the jury verdict. Mesiti v. Wegman, 307 AD2d 339, 340 (2d Dept. 2003).

EPTL §5-4.3(a) specifically provides that, in a wrongful death action, "fair and just compensation" may be awarded "for the pecuniary injuries resulting from the decedent's death[,] to the persons for whose benefit the action is brought." In explaining these damages, the Practice Commentary to this section explains that pecuniary damages include benefits a distributee "had a reasonable right to expect" had the decedent lived, "including 'loss of support, voluntary assistance and possible inheritance.' " Margaret V. Turano, Practice Commentaries, McKINNEY'S CONS. LAWS OF NY, Bk. 17B, p. 438. Pecuniary loss may also include loss of services both to the distributee and to non-distributees. Id. At 439.

Based upon the facts elicited at trial, the jury's finding that Mrs. Garcia suffered a past pecuniary loss of $67,200 and a future pecuniary loss of $88,400, should stand. A rational jury could have found these damages given the trial testimony that Mr. Garcia lived with Mrs. Garcia and his siblings, that he gave her $250 per week, that he helped with the cooking and housework, that he was 25 years old when he died and that Mrs. Garcia was 58 years old at the time. Nor did the evidence presented so preponderate for a lesser amount that no fair interpretation of the evidence could support the verdict reached.

3. Proximate Cause

Defendant further argues that the pecuniary damages award, representing Mr. Garcia's death, must be set aside since it was not proximately caused by his false arrest. That is, defendant argues the jury's finding that Officer O'Keefe did not employ excessive force, in essence, was a determination that Officer O'Keefe's actions subsequent to the initial stop and seizure were appropriate, i.e., a legal arrest. Defendant, therefore, contends that Mr. Garcia's death did not stem from the initial stop. In support of this argument, defendant cites to Dabbs v. State, 59 NY2d 213 (1983).

The Court disagrees with defendants. First, the Court does not believe the jury's finding [*9]that excessive force was not used is equivalent to a finding of a legal arrest. The only clear injury attributable to Officer O'Keefe's conduct were the bullet wounds, which occurred after the arrest and a brief struggle. Whether Officer O'Keefe identified himself as a policeman, as he testified, and whether he beat Mr. Garcia were disputed facts. The only certainty in regard to the verdict was that it spoke to the shooting and found that O'Keefe acted in self-defense. The legality of O'Keefe's actions after the initial stop remained equivocal.

In addition, the relevant holding in Dabbs, supra, does not speak to attenuation of damages stemming from a false arrest once the arrest becomes legal. Dabbs, supra, merely states that damages for false arrest are to be awarded only until arraignment and the damages thereafter are attributable to malicious prosecution. Accordingly, the Court denies defendant's motion to set aside the award of pecuniary damages for lack of proximate cause.[FN2]

4. Punitive Damages

Similarly, the jury award of punitive damages should not be set aside. EPTL §5-4.3(b) permits recovery of punitive damages in a wrongful death action "if such damages would have been recoverable had the decedent survived." Punitive damages are available to deter individuals from engaging in wrongful conduct egregious torteous acts which ignore the rights of others. Hartford Acci. & Indem. Co. v. Village of Hempstead, 48 NY2d 218, 226-7 (1979). They are imposed to vindicate public rights. Rocanova v. Equitable Life Assur. Soc'ty., 83 NY2d 603, 613 (1994). When a jury awards such damages, a court should not lightly disturb the award. Nardelli v. Stamberg, 44 NY2d 500, 503(1978)(" 'In torts which, like malicious prosecution, require a particular anti-social state of mind, the improper motive of the tortfeasor is both a necessary element in the cause of action, and a reason for awarding punitive damages.' " citing to Restatement, Torts, Comment c, §908)Here, the jury found that Mr. Garcia was improperly seized by Officer O'Keefe a wrongful act which ignored the rights of Mr. Garcia. The conduct upon which the award was made was the type of intentional action aimed at the public in general, and the award of punitive damages could be viewed as both a deterrent and a means of vindicating a public right. Consequently, a rational jury, on the basis of the evidence presented, could have awarded punitive damages here. See supra, Coakley v. The City of New York, 286 AD2d 577. In like manner, a fair interpretation of the evidence could have resulted in a finding of punitive damages. See Lolik v. Big V Supermarkets, supra, 86 NY2d 746.

Plaintiff's Motion to Set Aside the Verdict

1. & 2. Failure to Award Pain & Suffering

Plaintiff moves to set aside the jury verdict awarding no pain and suffering and, instead, to either award $500,000 for decedent's pain and suffering or order a new trial on the issue. The unrebutted evidence at trial, however, made clear that Mr. Garcia lost consciousness after being shot and, within minutes, was dead. Further, the evidence indicated that he was under the influence of cocaine, an anesthetic, throughout.

Plaintiff bears the burden of proving conscious pain and suffering. Cummins v. County of Onandaga, 84 NY2d 322, 324 (1994). When the interval between injury and death is short, the [*10]victim's degree of consciousness, the severity and duration of pain and the apprehension of impending death are factors to be considered in awarding damages for pain and suffering. Jones v. Simeone, 112 AD2d 772 (4th Dept. 1985). If the evidence fails to demonstrate consciousness after injury, there can be no award for pain and suffering. Cummins, supra at 325; Cleary v. LJR Assocs., 198 AD2d 394 (2d Dept. 1993), lv. denied 83 NY2d 751 (1994).

Here, the uncontroverted evidence demonstrated that decedent fell to the floor after being shot. He apparently was unconscious at that point, since Officer O'Keefe kicked his gun away from him, was unable to manipulate his body to properly handcuff him and left him alone in the lobby to radio for help. Within minutes, Officers DelaSandro and Nolan arrived. DelaSandro observed decedent lying on the floor, and Mr. Garcia "appeared to be dead." Very shortly thereafter, EMT Toyloy arrived. He too testified that decedent lay unconscious on the floor. He, however, observed decedent take two breaths and then stop breathing. EMT Toyloy opined that Mr. Garcia was dead, and both the EMT and the hospital personnel were unable to revive him. The autopsy confirmed the severity of decedent's wounds and the speed of his death. He suffered two bullet wounds. The first bullet, among other things, severed his aorta and vertebrae. The second bullet went through both of decedent's lungs. Based on this evidence, no valid line of reasoning and no permissible inferences could possibly lead a rational jury to award damages for pain and suffering.

3. & 4. Civil Rights Claim

Plaintiff argues that the jury's verdict on his Civil Rights' claim was inconsistent with its verdict on false arrest and, thus, moves to set aside that verdict. Prior to summations, however, both counsel were given hard copy of the charge and the verdict sheet. Neither objected to the instructions as ultimately given on false arrest and the Civil Rights' claim. Nor did either object to the verdict sheet questions as ultimately given. When the jury returned with its verdict, the Court called counsel up to the bench and asked if they found the verdict consistent. Both counsel did and made no motion as to inconsistency. As a result, the Court dismissed the jury. The Court, therefore, finds that any objections to the charge, verdict sheet or consistency of the verdict were waived. See Barry v. Manglass, 55 NY2d 803, 806 (1981). Accord Grzesiak v. G.E. Co., 68 NY 937, 939 (1986); Ramos v. NYCHA, 280 AD2d 325, 326 (1st Dept. 2001); Failla v. Amodeo, 225 AD2d 965, 966 (3d Dept. 1996); Gribbon v. Missionary Sister of the Sacred Heart, 244 AD2d 185 (1st Dept. 1997). The interest of justice does not require a different result. Cf. Vera v. Bielomatik Corp., 199 AD2d 132 (1st Dept. 1993). In any event, here where the elements of the two causes of action at issue, differ, there is no inconsistency in the verdict.

5. Interest From the Date of the Incident

Pursuant to EPTL §5-4.3, interest is to be paid on a wrongful death award. "[T]he goal of damages in a wrongful death action is to compensate the decedent's distributees for no more than their pecuniary loss." Milbrandt v. A.P. Green Refractories Co., 79 NY2d 26, 35 (1992). "[W]hen losses are ongoing and spread over the period from the date of decedent's death to the date of the verdict, the damages may be viewed as resulting from a series of discrete losses occurring after decedent's death." Id. at 37. Thus, damages for pre-verdict pecuniary loss are to be computed pursuant to CPLR §5001(b). Consequently, here, interest on the $67,200 pre-verdict loss should be calculated from August 6, 1998, the mid-point between the date of death and the date of judgment. [*11]

On the other hand, no interest should be added for the post verdict pecuniary loss. The court in Milbrandt explained when an intended award for pecuniary loss is not discounted to present value, the award includes the return that would be earned on the principal in the future. Id. at 35. Were it otherwise, the plaintiffs would realize "a windfall." Id.. at 36. Since the instant post-verdict award was not discounted, no interest should be added to it.

6. Increase Punitive Damages

As noted earlier, punitive damages are available to deter individuals from engaging in wrongful conduct and to vindicate public rights. Rocanova v. Equitable Life Assur. Society, supra, 83 NY2d 613; Hartford Accident & Indem. Co. V. Village of Hempstead, supra, 48 NY2d 226-7. When a jury awards such damages, a court should not lightly disturb the award. Nardelli v. Stamberg, supra, 44 NY2d 503 (1978) Here, the jury found that Mr. Garcia was improperly stopped and seized but did not find that excessive force was used against him. Based upon these findings, a rational jury could conclude that $15,000 was an appropriate punitive damage award. In like manner, a fair interpretation of the evidence would support such an award. Accordingly, it is

ORDERED that defendant's motion to set aside the verdict is denied in its entirety; and it is further

ORDERED that plaintiff's motion to set aside the verdict is denied as to everything except the date from which interest is to be awarded on the $67,200 in past pecuniary loss which shall be August 6, 1998; and it is further

ORDERED that the Clerk is to enter judgment on this matter in favor of plaintiffs and against defendants in the amount of $67,200 in past pecuniary loss, with interest at the statutory rate from August 6, 1998, in the amount of $88,400 for future pecuniary loss, and in the amount of $15,000 for punitive damages, with interest from the date of verdict (October 1, 2003) at the statutory amount.

This shall constitute the decision and order of the Court.

DATED: September 9, 2004 __________________________________

SHIRLEY WERNER KORNREICH

Footnotes

Footnote 1: Charles Canposi, chief of Internal Affairs of the New York City Police Department, testified that in 1992, police officers carried .38 caliber revolvers. Some carried two guns, but the second weapon, as well as the first, were registered by serial number with the Police Department.

Footnote 2: Indeed, the Court finds that false arrest and proximate cause in this case are so intertwined as to render it impossible to find one without the other.