McQueen v City of New York

[*1] McQueen v City of New York 2008 NY Slip Op 51796(U) [20 Misc 3d 1139(A)] Decided on September 3, 2008 Supreme Court, Kings County Miller, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 3, 2008
Supreme Court, Kings County

The Estate of Dion McQueen, by its Administratrix Myrna Francisco, and Myrna Francisco, Individually, Plaintiff (s)

against

The City of New York, Police Officer Christopher Rowe, Police Officer Christopher Bowden, Defendant (S).



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The plaintiff is represented by the law firm of Lazzaro and Gregory, P.C. by Randall Lazzaro, Esq., of counsel, the defendants City of New York, Christopher Bowden and Christopher Rowe are represented by Michael A. Cardozo, Esq., Corporation Counsel of the City of New York by Eylan Schulman, Esq., of counsel.

Robert J. Miller, J.

In this action, the Estate of Dion McQueen (Decedent) brings this action against the City of New York (City), police officers Christopher Rowe and Christopher Bowen (collectively the PO Defendants) for, inter alia, false arrest, assault and battery, violation of civil rights, negligence in hiring and training and wrongful death. The City moves for summary judgment dismissing the complaint and the P.O.

Defendants move to dismiss for lack of personal jurisdiction.

This case arises out of the shooting of Decedent by the PO Defendants which occurred after Decedent participated in a robbery on October 28, 1999. The City's motion is supported by the deposition testimony of the PO Defendants. On October 28, 1999, the Decedent along with Ray Charles and Augustus Charles took part in an armed robbery at a gas station. Augustus Charles provided the gun and the Decedent supplied the bullets. After the robbery at the gas station, the three men fled the gas station.

Police Officer Rowe testified as follows: [*2]

Q.You observed that just when they came out of the store?

A.As we were running toward them.

Q.Did you identify yourself as police officers?

A.My partner was running and yelling "police,"

I was yelling "drop the gun."

Q.How far was the individual from the door of

the gas station when you first observed him with

the gun; was he at the door?

MR. SCHULMAN: When he saw the gun?

MR. LAZZARO: Yes.

A.I would say maybe a car length, I don't know exactly.

Q.When you first observed the gun, was the individual holding the gun

facing you or was he at an angle to you or his back to you?

A.He was running like I could see his side, he was running,

I could see the gun in his hand.

Q.You and your partner yelled drop the gun"?

A.My partner was yelling "police;" "I was yelling "Drop the gun."

Q.What did the person do as a result of yelling police, drop the gun?

A.He put his arm across the front of his body and fired a shot at us.

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Q.How far was he from you?

A.We were still running toward him, 15 to 20 feet.

Q.Thankfully, you were not hit by the bullet?

A.Correct.

Q.Your partner was not hit?

A.Correct

Q.Did the bullet pass you?

A.I don't know.

Q.You didn't see it?

A.No.

Q.Do you know if the bullet was ever recovered?

A.I believe it was.

Q.Do you know where it was recovered from.

A.I don't know.

Q.As a result of being fired upon, what did you do? [*3]

A.I returned fire, I fired two rounds

Q.Did your partner also return fire?

A.Yes, he did.

Police officer Bowden testified as follows:

Q.You knew they had a gun but you heard a gun

go off?

A.Yes.

Q.As you started running you got all the way

across the street, that is the first time that the perpetrator

noticed you guys, as far as you know?

A.Yes, they noticed us. They started running away

from us. Then we started chasing them. I told them

"Stop police. Drop the gun". As we were chasing them one of the

perpetrators turned around and fired at us and I saw

the flash of the muzzle, that is when I really saw the gun.

Q.At any time prior to that, you didn't see a gun is that correct?

A.No.

Q.Correct?

A.That is correct, yes.

Q.How many times did you yell

"Police, stop," or anything else indicating

to them that you guys were police officers

and for them to stop prior to them running away?

A.Definitely once, possibly twice.

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Q.Now, when you were fired upon, did you immediately

return fire?

A.After I saw the flash of the muzzle, that is when I

returned fire.

Q.Did you and your partner fire simultaneously, did your

partner fire first, did you fire first?

A.Yes, he did.

Q.You heard him shoot the gun first? [*4]

A.I heard him shoot, I don't remember if it was simultaneous.

Q.If it was not simultaneous, it was within a couple of seconds, correct?

A.Correct.

Q.Describe for me how the three perpetrators were running when they

fired point?

A.What do you mean by that?

Q.Were they one behind, were they side by side?

A.It was they were intermingling ,like that (indicating),

they were running together, they were clinging together.

Q.You didn't notice which one fired at you ?

A.It was hard to tell, I just saw the one person turned and

fired the weapon. I saw the flash of the muzzle and I

returned fire.

Ray Charles and Augustus Charles pled guilty to robbery in the first degree. In further support of the motion, the City submitted the documents which establish that the .32 caliber revolver used in the robbery was recovered near the scene of the shooting. A bullet consistent with the .32 caliber revolver was recovered outside the gas station and an additional bullet too deformed to analyze was also recovered.

The City argues that the complaint should be dismissed as the entire underpinning of the complaint i.e. the claim of the use of excessive force can not be sustained as the police used reasonable force. In order to determine whether a police officer used excessive force, courts analyze complaints "under the Fourth Amendment and its standard of objective reasonableness" (Ostrander v State of New York, 289 AD2d 463 [2d Dept 2001].)

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In evaluating the reasonableness of force, the standard to be applied is not the perspective of a monday morning quarterback reviewing events from the security of a courtroom, but must be judged from a perspective of a reasonable police officer on the scene. (Rivera v The City of New York, 40 AD3d 334 [1st Dept 2007]).

In the instant case, the City has established its entitlement for summary judgment by the submission of the deposition testimony of the PO Defendants along with documentary evidence. The burden now shifts to plaintiff to raise triable issues of fact. (Alvarez v Prospect Hospital, 68 NY2d 320 [1987]).

In opposition to the motion for summary judgment, plaintiffs submit a three page attorney affirmation which attaches a photograph of the Decedent and a page from the manual of police procedure. It is axiomatic that an attorney's affirmation not made upon personal knowledge is insufficient to defeat a motion for summary judgment. (World Com., Inc v Dialing Loving Care Inc., 269 AD2d 159 [1st Dept 2000]). A review of the affirmation indicates that plaintiffs contend that because the Decedent " never had the gun as the gun was held by Augustus Charles" and that since the Decedent "was shot in the back of the head while running away" that there are triable [*5]issues of fact.

Neither of these facts raise triable issues to defeat the motion for summary judgment. As noted, in this case, the Court is required to evaluate whether the actions of the police officers in their use of force was reasonable . The undisputed and uncontested deposition testimony of both police officers

establish that they were fired upon by one of the three suspects while the officers were in pursuit. The fact that Decedent did not fire the gun does not in any way make the acts of the police officers less reasonable.

While the death of any human being is a tragedy, the Decedent placed himself in harms way by participating in a armed robbery ( Penal Law § 160. 10 (2) (b) ). He supplied the bullets used in the robbery and used in the exchange with the police officers. If the Decedent had survived, our criminal law would have permitted the State to try him for armed robbery or, if one of the police officers had been killed, for felony murder (Penal Law 125.25 (3)).

Under the facts of this case, where Decedent took part in an armed robbery and was part of the threesome that fled the scene and fired at the police, in general the public policy of the State is that

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Decedent's estate may not recover for his wrongful death which was brought on by his own criminal acts Barker v. Kallish, 63 NY2d 19 [1984], Reno v D'Javid, 42 NY2d 1040 [1977], Riggs v Palmer, 70 Sickles 506 [1889]). The City's motion for summary judgment is granted.

With respect to the motion of the PO Defendants for dismissal of the complaint for lack of personal jurisdiction, the Court grants the motion. The affidavit of service of the complaint indicates both officers were purportedly served by substituted service on November 2, 2000. However, service was never complete as neither affidavit of service was ever filed with the Clerk of the Court as required by CPLR § 308(2). Plaintiffs argue that "both plaintiff and defense counsel operated under the belief that the officers had appeared." The only answer interposed was by the City. However, the transcript of the deposition of the PO Defendants indicate that the Corporation Counsel was appearing as"attorneys for defendants". There was obviously some confusion. In any event, in light of the Court's decision granting the motion for summary judgment, the issue is largely academic.

The Clerk of the Court is directed to enter judgment dismissing the complaint against all defendants with prejudice.

The foregoing constitutes the decision and order of the Court.

_______________________

Robert J. Miller

J.S.C. [*6]

September 3, 2008

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