Pacheco v City of New York

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Pacheco v City of New York 2012 NY Slip Op 33623(U) May 7, 2012 Supreme Court, Bronx County Docket Number: 0016368/2007 Judge: Geoffrey D. Wright Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. ---- [* 1] FILED Jun 11 2012 ~~onx County Clerk 1~EW YORK SUPREME COURT - COUNTY OF BR NX PART 01 Case Disposed 0 Settle Order 0 Schedule Appearance 0 SUPREME COUR OF THE STATE OF NEW YORK COUNTY OF BR NX: ----------------------- -------------------------------------------X PACHECO,CA~OS . [ -against- THE CITY OF NEW YORK I Index }fa. 1636812007 Hon ...::::::G:.==E:.:::O~F~F~~D~.!.....W~RI~G:=::.~H~T__. Justice. e following papers oticed on Dece PAPERS NUMBERED Affidavits and Exhibits Pleadings - Exhibit I Stipulation(s) - Refe e's Report - Minutes Filed Papers Memoranda of Law [* 2] FILED Jun 11 2012 Bronx County Clerk SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX: Part lA-1 --------------------------------------------------------------------x CARLOS PACHECO, Im ex # 16368/07 Plaintiff, -against- DECISION THE CITY OF NEW YORK, (NYC FIRE DEPARTMENT and EMERGENCY MEDICAL SERVICES), P.O. LOPEZ (Shield# unknown) and P.O. ZAHIRDIN (Exact name and shield# unknown), and SGT. JAMES SUTTER (Shield 3 unknown), Defendant. Presen: Hon. G~offrey D. Wright Acting Justice Supreme Court ---------------------------------------------------------------------x RECITATION, AS REQUIRED BY CPLR 2219(A), of the papers considered in the review of this Motion/Order set aside jury verdict. Notice of Motion and Affidavits Annexed ..... . Order to Show Cause and Affidavits Annexed Answering Affidavits....................................... Replying Affidavits...................................... Exhibits ............................................................ . Other ............ cross-motion ............................... . 1 -[~--- B ___ Upon the foregoing cited papers, the Decision/Order on this Motion is as follows: Defendants, moves pursuant to CPLR 4404(a) to enter judgmer t for Defendants notwithstanding the verdict. Defendants' motion is based on the alleg~d failure of the Plaintiff to establish a prima facie case, and that the verdict rendered l y the jury is against the weight of the evidence presented at trial. In the alternative, Defendant~ seek a reduction of the amounts awarded to Plaintiff by the jury. That part of the motion to set aside the verdict is denied. The tptality of the evidence adduced at trial fully support the verdict rendered against Defendants . Plaintiffs proof at trial, consisting of his testimony and the testimony of other witnesses 1 two other police 108 [* 3] FILED Jun 11 2012 Bronx County Clerk ' ¢ Officers, a paramedic, and Plaintiffs girlfriend), all of whom were p esent at the time Plaintiff was tasered. There was overwhelming credible evidence tha Plaintiff did refused to go to the hospital and was nevertheless restrained - handcuffed behin his back in an EMS chair, with a lap belt, a chest belt and legs restraints and was twice tas red by Sargent Sutter (testimony of Officer Zahirdin). The jury awarded Plaintiff for exce sive force the sum of$ 409,166 from the date of the incident to the date of verdict; the sumo $633,333 for future damages for the use of excessive force; and $1,000,000 as punitive d ages against Sargent Sutter. In addition to the claim that Plaintiff failed to establish a prim facie case which the court found above lacks merit, Defendants enunciated other grounds r setting aside the verdict. The first argument was that the verdict was against the weigh of the evidence and is denied. Next the Defendants argued that the jury was not provided wit the proper burden of proof on the punitive damages charge nor was the burden of proof inc rporated into the interrogatory. The Defendant argued that the Court failed to charge the jury ith the correct burden of proof on punitive damages - a finding of clear, unequivocal, and co vincing evidence. The Defendant failed to raise any objection to the charges with respec to burden of proof when, after giving the charges, the court asked the parties if they had orrections to the charges (pg 679 -Trial Transcript). In addition to an issue of waiver, that the issue was not preserved for trial, there is also a 1st Department Appellate Division h lding where the Court found that "Defendant's claim that the trial court failed to charge that anton and reckless conduct had to be proven by clear and convincing evidence was not p eserved by either its objection to the general burden of proof charge or its unelaborated objection to the punitive damages charge" Browne v. Prime Contracting Design Corp., 308 A. .2d 372, 764 N.Y.S.2d 269, (App. Div. 1 Dept. 2003). The Court in Browne, supra, conclud d that "any errors in these respects were harmless, given a record replete with clear and co vincing evidence" as was presented in the instant trial where the credible testimony showed that Plaintiff was restrained (by arms and legs in a chair) when he was tasered. Defendants allege that the Court erred in allowing testimony as to exacerbation of Plaintiffs seizure disorder. Defendants refer to a pre-trial decision in he instant matter by Judge Williams that precluded any testimony by Dr. Gutstein as to ex cerbation relating to a seizure disorder. The testimony referred to by Defendant, however, is solely that of Plaintiff who is allowed to testify as to his injury or suffering experienced as a esult of Defendant's action. The other statements made by Plaintiffs attorney in summatio were in accordance with Plaintiffs testimony of experiencing more seizures after the Sep ember 2006 incident. 109 [* 4] FILED Jun 11 2012 Bronx County Clerk The Decision of Judge Williams was directed solely to testimony of . Gutstein. The allegation that the jury rendered a compromise damage ve diet, which could only have been reached by averaging the proposed verdict amounts of each individual juror and is a "quotient verdict' and therefore invalid lacked merit. Unless there is hown that there was an agreement by each juror to abide with the average prior to the averagi g, the argument is not a basis for setting aside the verdict. Micozzi v. Glowacki, 178 A.D.2d 85, 577 N.Y.S.2d 480 (App. Div. 2 Dept.,1991); Klein v Eichen, 63 Misc.2d 590, 310 N.Y .. 2d 611 (Sup. Ct. Bronx 1970). Defendants allege that the court erroneously denied Defendant ' request to include a substantial factor question as to the cause of Plaintiffs emotional dist ess and psychological injuries. In Siagha v. Salant-Jerome the Appellate Division 1st Depa ment held (citing other authority) that: "The various trial rulings cited by defendants as grounds for a ew trial are either unpreserved for appellate review, insufficiently prejudici 1 to warrant a new trial, or were proper exercises of the court's discretion. In articular, the trial court's failure to include on the verdict sheet an interrogat ry requiring the jury to conclude, prior to awarding damages, that plaintiffs inj ries were proximately caused by the assault, was harmless error in light f the fact that the issue of proximate causation was fully explained in the jury ch rge" 271A.D.2d274, 706 N.Y.S.2d 634 (2000). Rock v. City of New Yo k, 294 A.D.2d 480, 742 N.Y.S.2d 565 (App. Div .. 2 Dept. 2002). Finally Defendants allege that the damages awarded by the ju deviates materially from what would constitute reasonable compensation and seek to set side the damage awards. Plaintiff cited to several cases Segal v City of New York, 66 A.D.3d 865, 887 N.Y.S.2d 624 (App. Div. 2 Dept. 2009); Chianese v Meier, 285 A.D. d 315, 729 N.Y.S.2d 460 (App. Div. pt Dept. 2001); Papa v City of New York, 194 A.D.2 527, 598 N.Y.S.2d 558 (App. Div. 2nct Dept. 1993) that show that the awards of damages ere not excessive. In Ferguson v. City of New York, 73 A.D.3d 649, 901N.Y.S.2d609 (A p. Div. pt Dept. 2010) an award of $2.7 million as punitive damages was not considered ex essive. The Court in Ferguson held that: "Punitive damages award of $2. 7 million was reasonably relate to harm done and flagrancy of conduct of defendant police officer in using e cessive force during arrest by shooting arrestee in head, and consistent with urpose of punishing defendant for wanton and reckless acts, thereby disc uraging similar conduct in future, and therefore was not excessive, since office 's conduct resulted in death and was in complete disregard of police proce ure". While the instant court is aware that the matter herein did not end in P aintiff s death, the 110 [* 5] FILED Jun 11 2012 Bronx County Clerk ... conduct displayed by Sargent Sutter was as wanton and reckless as th t found in Ferguson. The $1,000,000 awarded as punitive damagesi~.-~~erefore not excessi e. May 7, 2012 ~ GEOFFREY D. W ,4, Ye<,,-.. JUDGE GEOFFREY D. Acting Justice of the Supre 111

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