INDEX NO. 154550/2017 FILED: NEW YORK COUNTY CLERK 09/16/2019 08/18/2017 11:14 05:43 AM PM NYSCEF DOC. NO. 50 20 RECEIVED NYSCEF: 09/16/2019 08/18/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------------------------------------------------------------------------x ERIC CONRAD, as Administrator of the Estate of Garry J. Conrad, ANSWER TO AMENDED COMPLAINT Plaintiff, Index No.: 154550/2017 -againstTHE CITY OF NEW YORK, a municipal entity; NYPD Police Officer ADOLFO PERALTA; NYPD Sergeant MARK AMUNDSON; and NYPD Police Officer KEVIN GLEASON, Law Dept. File #: 2017-039173 Defendants. ------------------------------------------------------------------------x Defendant CITY OF NEW YORK, by ZACHARY W. CARTER, Corporation Counsel, answering the amended complaint, alleges upon information and belief: 1. Denies each allegation set forth in paragraphs 1, 5-8, 36-38, 40, 41, 53, 55, 61, 63, 64, 66, 67, 69-71, 73-75, 77, 79, 81 and 82, inclusive. 2. Denies knowledge or information sufficient to form a belief with respect to the truth of the allegations set forth in paragraphs 3, 4, 13, 16-18, 23-29, 31, 33, 47-52, 65 and 78, inclusive. 3. Admits the allegations set forth in paragraphs 11, 19 and 34, inclusive. 4. Denies paragraphs 15, 20, 22, 84 and 85 in the form alleged and refer all questions of law to the Court. 5. Denies each allegation set forth in paragraphs 68, 72, 76, 80 and 83, inclusive, except as otherwise pleaded herein. 6. Denies the allegations set forth in paragraphs 2 and 43, inclusive, except that the decedent was shot seven times by New York City Police Department (“NYPD”) officers, and 1 1 of 6 FILED: NEW YORK COUNTY CLERK 09/16/2019 08/18/2017 11:14 05:43 AM PM NYSCEF DOC. NO. 50 20 INDEX NO. 154550/2017 RECEIVED NYSCEF: 09/16/2019 08/18/2017 denies knowledge or information sufficient to form a belief with respect to the truth of the allegations regarding the decedent’s work history. 7. Denies the allegations set forth in paragraph 9, except that plaintiff purports to base venue as stated therein, and denies knowledge or information sufficient to form a belief with respect to the truth of the allegations regarding the appointment of an administrator of the estate. 8. Denies the allegations set forth in paragraphs 10 and 12, inclusive, except that a notice of a claim was presented and that more than thirty days have elapsed without adjustment thereof. 9. Denies knowledge or information sufficient to form a belief with respect to the truth the allegations set forth in paragraph 14, except that plaintiff has made a motion to supplement the notice of claim. 10. Denies the allegations set forth in paragraph 21, except that Mark Amundson, Adolfo Peralta and Kevin Gleason are employed by the City of New York as police officers. 11. Denies the allegations set forth in paragraph 30, except that on the morning of May 18, 2016, defendants Mark Amundson, Adolfo Peralta and Kevin Gleason responded to the vicinity of the intersection of West 49th Street and Eighth Avenue. 12. Denies the allegations set forth in paragraphs 32 and 35, inclusive, except that on information and belief the decedent had a verbal disagreement with an employee at Food Emporium, and denies knowledge or information sufficient to form a belief with respect to the truth of the allegations regarding the decedent’s emotional state of mind and whether the decedent was “visibly agitated.” 13. Denies the allegations set forth in paragraph 39, except that Officer Gleason did not consult with a supervisor prior to Officer’s Gleason’s attempt to detain the decedent. 2 2 of 6 FILED: NEW YORK COUNTY CLERK 09/16/2019 08/18/2017 11:14 05:43 AM PM NYSCEF DOC. NO. 50 20 INDEX NO. 154550/2017 RECEIVED NYSCEF: 09/16/2019 08/18/2017 14. Denies the allegations set forth in paragraph 42, except that the decedent attempted to and did lift himself up from the ground. 15. Denies knowledge or information sufficient to form a belief with respect to the truth the allegations set forth in paragraph 44, except that Officer Peralta discharged his firearm seven times. 16. Denies the allegations set forth in paragraph 45, except that a bystander was shot in the wrist at around the time of the Conrad incident. 17. Denies the allegations set forth in paragraph 46, except specifically denies knowledge or information sufficient to form a belief with respect to the truth the allegations regarding the length of the blade of the knife and whether the knife is one “commonly used by stagehands.” 18. Denies the allegations set forth in paragraph 54, except that Officer Gleason believed plaintiff was an emotionally disturbed person. 19. Denies the allegations set forth in paragraphs 56-60 and 62 in the form alleged and refer the Patrol Guide Procedure referenced therein and all questions of law to the Court. AFFIRMATIVE DEFENSES 20. The decedent’s culpable conduct caused or contributed to his injuries and death. 21. The decedent assumed the risk of his injuries and death. 22. The decedent’s negligence caused or contributed to his injuries and death. 23. The amounts recoverable by plaintiff are subject to limitation pursuant to Section 1601 of the Civil Practice Law and Rules, by reason of the culpable conduct of other person(s) who are, or with reasonable diligence could have been made party defendant(s) to this action, or pursuant to Section 15-108 of the General Obligations Law, by reason of a prior settlement between plaintiff and said person(s), or pursuant to Section 4545 of the Civil Practice 3 3 of 6 INDEX NO. 154550/2017 FILED: NEW YORK COUNTY CLERK 09/16/2019 08/18/2017 11:14 05:43 AM PM NYSCEF DOC. NO. 50 20 RECEIVED NYSCEF: 09/16/2019 08/18/2017 Law and Rules are subject to reduction by collateral sources received by plaintiff, or by reason of the fact that punitive damages are not recoverable against municipal defendant(s). 24. Plaintiffs' complaint fails to state a cause of action upon which relief can be granted. 25. Defendants are immune from suit for their exercise of discretion in the performance of a governmental function andlor their exercise of professional judgment. 26. Any force used was justified under the circumstances. 21 . The individual defendants were justified in using deadly physical force. 28. The actions of defendant City of New York by its employees were tactical police decisions involving the governmental exercise of professional judgment and discretion, and this defendant is immune from suit. WHEREFORE, defendant City of New York demands judgment dismissing the complaint and all cross-claims against judgment over, or it, or, in the event that it is adjudged liable, granting apportioning such liability in accordance with its equitable shares of responsibility, and awarding the costs of this action, together with such other and further relief to the court may seem just. ZACHARY CARTER Corporation Counsel By: Philip S. Frank 100 Church Street, 4tl'Floor New York, New York 10007 Tel: (212) 356-2370 Email: pfrank@law.nyc. gov 4 4 of 6 as FILED: NEW YORK COUNTY CLERK 09/16/2019 08/18/2017 11:14 05:43 AM PM NYSCEF DOC. NO. 50 20 INDEX NO. 154550/2017 RECEIVED NYSCEF: 09/16/2019 08/18/2017 VERIFICATION JUDITH DAVIDOW, an attorney duly admitted to practice law in the Courts of the State of New York and designated as Corporation Counsel of the City of New York, attorney for defendant the City of New York in this action, affirms the following statements to be true under the penalty of perjury pursuant to Rule 2106 CPLR: That she has read the foregoing answer of defendant THE CITY OF NEW YORK, and knows the contents thereof; that the same is true to her own knowledge, except as to the matters therein stated to be alleged upon information and belief, and that as to those matters she believes them to be true. Affiant further says that the source of her information and the grounds of her belief are derived from the files, books and records maintained in the normal course of business of the Law Department and other departments of the City government and from statements made to her by officers or agents of the City of New York. Dated New York, New York August 18,2017 IL ITH DAVIDOW ( 5 of 6 INDEX NO. 154550/2017 FILED: NEW YORK COUNTY CLERK 09/16/2019 08/18/2017 11:14 05:43 AM PM NYSCEF DOC. NO. 50 20 RECEIVED NYSCEF: 09/16/2019 08/18/2017 Index No: 154550/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ERIC CONRAD, as Administrator of the Estate of Garry J. Conrad, Plaintiff, -againstTHE CITY OF NEW YORK, a municipal entity; NYPD Police Officer ADOLFO PERALTA; NYPD Sergeant MARK AMUNDSON; and NYPD Police Officer KEVIN GLEASON, Defendants. ANSWER TO AMENDED COMPLAINT ZACHARY W. CARTER Corporation Counsel Attorney for Defendant THE CITY OF NEW YORK By: PHILIP S. FRANK 100 Church Street, 4th Floor New York, New York 10007 Tel. #: (212) 356-2370 Please refer to the following file number: 2017-039173 and indicate the County in which the action is pending in all papers, correspondence and other communications with respect thereto. 6 6 of 6 INDEX NO. 154550/2017 FILED: NEW YORK COUNTY CLERK 09/16/2019 11/13/2017 11:14 04:39 AM PM NYSCEF DOC. NO. 50 27 RECEIVED NYSCEF: 09/16/2019 11/13/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------------------------------------------------------------------------x ERIC CONRAD, as Administrator of the Estate of Garry J. Conrad, Plaintiff, -against- AMENDED ANSWER TO AMENDED COMPLAINT Index No.: 154550/2017 Law Dept. File #: 2016-016040 THE CITY OF NEW YORK, a municipal entity; NYPD Police Officer ADOLFO PERALTA; NYPD Sergeant MARK AMUNDSON; and NYPD Police Officer KEVIN GLEASON, Defendants. ------------------------------------------------------------------------x Defendants THE CITY OF NEW YORK, P.O. ADOLFO PERALTA, SGT. MARK AMUNDSON, and P.O. KEVIN GLEASON, by ZACHARY W. CARTER, Corporation Counsel, answering the amended complaint, allege upon information and belief: 1. Deny each allegation set forth in paragraphs 1, 5-8, 31, 35-38, 40, 41, 53-55, 61, 63, 64, 66, 67, 69-71, 73-75, 77, 79, 81 and 82, inclusive. 2. Deny knowledge or information sufficient to form a belief with respect to the truth of the allegations set forth in paragraphs 3, 4, 13, 16-18, 23-29, 33, 47-52, 65 and 78, inclusive. 3. Admit the allegations set forth in paragraphs 11, 19 and 34, inclusive. 4. Deny paragraphs 15, 20, 22, 84 and 85 in the form alleged, except that defendants Amundson, Peralta and Gleason were employed by the City of New York as police officers and that defendants Amundson, Peralta and Gleason were acting within the scope of their employment, and refer all questions of law to the Court. 5. Deny each allegation set forth in paragraphs 68, 72, 76, 80 and 83, inclusive, except as otherwise pleaded herein. 1 1 of 6 FILED: NEW YORK COUNTY CLERK 09/16/2019 11/13/2017 11:14 04:39 AM PM NYSCEF DOC. NO. 50 27 INDEX NO. 154550/2017 RECEIVED NYSCEF: 09/16/2019 11/13/2017 6. Deny the allegations set forth in paragraphs 2 and 43, inclusive, except that the decedent was shot seven times by New York City Police Department (“NYPD”) officers, and deny knowledge or information sufficient to form a belief with respect to the truth of the allegations regarding the decedent’s work history. 7. Deny the allegations set forth in paragraph 9, except that plaintiff purports to base venue as stated therein, and deny knowledge or information sufficient to form a belief with respect to the truth of the allegations regarding the appointment of an administrator of the estate. 8. Deny the allegations set forth in paragraphs 10 and 12, inclusive, except that a notice of a claim was presented and that more than thirty days have elapsed without adjustment thereof. 9. Deny knowledge or information sufficient to form a belief with respect to the truth the allegations set forth in paragraph 14, except that plaintiff has made a motion to supplement the notice of claim. 10. Deny the allegations set forth in paragraph 21, except that defendants Mark Amundson, Adolfo Peralta and Kevin Gleason are employed by the City of New York as police officers. 11. Deny the allegations set forth in paragraph 30, except that on the morning of May 18, 2016, defendants Mark Amundson, Adolfo Peralta and Kevin Gleason responded to the vicinity of the intersection of West 49th Street and Eighth Avenue. 12. Deny the allegations set forth in paragraph 32, except that on information and belief the decedent had a verbal disagreement with an employee at Food Emporium, and deny knowledge or information sufficient to form a belief with respect to the truth of the allegations regarding the decedent’s emotional state of mind and whether the decedent was “visibly agitated.” 2 2 of 6 FILED: NEW YORK COUNTY CLERK 09/16/2019 11/13/2017 11:14 04:39 AM PM NYSCEF DOC. NO. 50 27 INDEX NO. 154550/2017 RECEIVED NYSCEF: 09/16/2019 11/13/2017 13. Deny the allegations set forth in paragraph 39, except that Officer Gleason did not consult with a supervisor prior to Officer’s Gleason’s attempt to detain the decedent. 14. Deny the allegations set forth in paragraph 42, except that the decedent attempted to and did lift himself up from the ground. 15. Deny knowledge or information sufficient to form a belief with respect to the truth the allegations set forth in paragraph 44, except that Officer Peralta discharged his firearm seven times. 16. Deny the allegations set forth in paragraph 45, except that a bystander was shot in the wrist at around the time of the Conrad incident. 17. Deny the allegations set forth in paragraph 46, except specifically deny knowledge or information sufficient to form a belief with respect to the truth the allegations regarding the length of the blade of the knife and whether the knife is one “commonly used by stagehands.” 18. Deny the allegations set forth in paragraphs 56-60 and 62 in the form alleged and refer the Patrol Guide Procedure referenced therein and all questions of law to the Court. AFFIRMATIVE DEFENSES 19. The decedent’s culpable conduct caused or contributed to his injuries and death. 20. The decedent assumed the risk of his injuries and death. 21. The decedent’s negligence caused or contributed to his injuries and death. 22. The amounts recoverable by plaintiff are subject to limitation pursuant to Section 1601 of the Civil Practice Law and Rules, by reason of the culpable conduct of other person(s) who are, or with reasonable diligence could have been made party defendant(s) to this action, or pursuant to Section 15-108 of the General Obligations Law, by reason of a prior settlement between plaintiff and said person(s), or pursuant to Section 4545 of the Civil Practice 3 3 of 6 INDEX NO. 154550/2017 FILED: NEW YORK COUNTY CLERK 09/16/2019 11/13/2017 11:14 04:39 AM PM NYSCEF DOC. NO. 50 27 RECEIVED NYSCEF: 09/16/2019 11/13/2017 Law and Rules are subject to reduction by collateral sources received by plaintiff or by reason of the fact that punitive damages are not recoverable against municipal defendant(s). 23. PlaintifPs complaint fails to state a cause of action upon which relief can be granted. 24.Defendants are immune from suit for their exercise of discretion in the performance of a govemmental function andlor their exercise of professional judgment. 25. Any force used was justified under the circumstances. 26.The individual defendants were justified in using deadly physical force. 27.The actions of defendant City of New York by its employees were tactical police decisions involving the governmental exercise of professional judgment and discretion, and this defendant is immune from suit. WHEREFORE, defendants THE CITY OF NEW YORK, P.O. ADOLFO PERALTA, SGT. MARK AMUNDSON, and P.O. KEVIN GLEASON demand judgment dismissing the complaint and all cross-claims against them, or, in the event that they are adjudged liable, granting judgment over, or apportioning such liability in accordance with their equitable shares of responsibility, and awarding the costs of this action, together with such other and further relief as to the court may seem just. Q",fu ZACHARY W. CARTER Corporation Counsel S. Frank 100 Church Street, 4th Floor New York, New York 10007 Tel.: (212) 3s6-2370 Email : pfrank@1aw.nyc. gov By:Philip 4 4 of 6 INDEX NO. 154550/2017 FILED: NEW YORK COUNTY CLERK 09/16/2019 11/13/2017 11:14 04:39 AM PM NYSCEF DOC. NO. 50 27 RECEIVED NYSCEF: 09/16/2019 11/13/2017 VERIFI CATION JUDITH DAVIDOW, an attorney duly admitted to practice law in the Courts of the State of New York and designated as Corporation Counsel of the City of New York, attorney for defendant the City of New York in this action, affirms the following statements to be true under the penalty of perjury pursuant to Rule 2106 CPLR: That she has read the foregoing amended answer of defendants THE CITY OF NEW YORK, P.O. ADOLFO PERALTA, SGT. MARK AMUNDSON, and P.O. KEVIN GLEASON, and knows the contents thereof; that the same is true to her own knowledge, except as to the matters therein stated to be alleged upon information and belief, and that as to those matters she believes them to be true. Affiant further says that the source of her information and the grounds of her belief are derived from the files, books and records maintained in the normal course of business of the Law Department and other departments of the City government and from statements made to her by officers or agents of the City of New York. Dated New York, New York November 13,2017 ITH DAVIDOW 5 5 of 6 INDEX NO. 154550/2017 FILED: NEW YORK COUNTY CLERK 09/16/2019 11/13/2017 11:14 04:39 AM PM NYSCEF DOC. NO. 50 27 RECEIVED NYSCEF: 09/16/2019 11/13/2017 Index No: 154550/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ERIC CONRAD, as Administrator of the Estate of Garry J. Conrad, Plaintiff, -againstTHE CITY OF NEW YORK, a municipal entity; NYPD Police Officer ADOLFO PERALTA; NYPD Sergeant MARK AMUNDSON; and NYPD Police Officer KEVIN GLEASON, Defendants. AMENDED ANSWER TO AMENDED COMPLAINT ZACHARY W. CARTER Corporation Counsel Attorney for Defendant THE CITY OF NEW YORK By: PHILIP S. FRANK 100 Church Street, 4th Floor New York, New York 10007 Tel. #: (212) 356-2370 Please refer to the following file number: 2016-016040 and indicate the County in which the action is pending in all papers, correspondence and other communications with respect thereto. 6 6 of 6