FILED: NEW YORK COUNTY CLERK 11/01/2019 06:20 PM NYSCEF DOC. NO. 92 INDEX NO. 154550/2017 RECEIVED NYSCEF: 11/01/2019 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, Index No. 154550/2017 - against 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 MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT Preliminary Statement On May 18, 2016, Garry J. Conrad (“Mr. Conrad”) was shot and killed by NYPD Police Officer Adolfo Peralta and Sergeant Mark Amundson at the intersection of Eighth Avenue and 49th Street. Seven bullets fired from their weapons penetrated his body. He was handcuffed by Officer Gleason as he lay face down in the street, his head resting in streams of blood. The hail of bullets that caused his death were fired as the result of conduct initiated by NYPD Officer Kevin Gleason, who, despite knowing that Mr. Conrad was an emotionally disturbed person, had, without any provocation or basis, viciously attacked on him and thrown him to the ground only minutes prior. This case arises from the wrongful acts and omissions of defendant police officers, who used unjustifiable physical force rather than follow mandatory procedures established by the New York City Police Department to resolve an emotionally distraught man’s verbal dispute in a grocery 1 of 18 INDEX NO. 154550/2017 FILED: NEW YORK COUNTY CLERK 11/01/2019 06:20 PM NYSCEF DOC. NO. 92 RECEIVED NYSCEF: 11/01/2019 store, an error repeated when Mr. Conrad tried to walk away from Officer Gleason after the first assault. Plaintiff’s complaint alleges four common law causes of action – assault, battery, wrongful death and pain and suffering – against the individual defendants and a claim against the City of New York for vicarious liability under the doctrine of respondeat superior. A detailed examination of the factual events, conflicting testimony, documented discrepancies and the efforts to conceal the wrongful acts that caused Officer Peralta and Sgt. Amundson to be unexpectedly confronted by a man holding a knife is contained in the Affirmation in Opposition submitted on this motion. Defendants’ submission on this motion is lacking in admissible evidence and is contradicted by surveillance videos and deposition testimony of other parties and witnesses. Many of the cases cited in defendants’ memorandum of law are federal civil rights actions brought pursuant to 42 U.S.C. § 1983 regarding qualified immunity. Nearly all of the facts set forth deal almost exclusively focused on Officer Peralta and Sgt. Amundson. The City’s failure to mention or acknowledge the wrongful conduct of Officer Gleason, who set in motion the fatal cycle of events, is a concession. Through this memorandum, plaintiff will put the actions of Officer Peralta and Sgt. Amundson in the context of the circumstances created by Officer Gleason. Standards Applicable to This Summary Judgment Motion The remedy of summary judgment is drastic and should not be granted where there is any doubt as to the existence of a triable, or even an arguable or debatable, issue. (Moskowitz v Garlock, 23 AD2d 943, 944 [3d Dept 1965]). Since it deprives a party of his day in court, such relief should be granted only when no genuine, triable issue of fact exists. (Sillman v. Twentieth Century-Fox Film Corp, 3 NY2d 395, 404 [1957]; Gibson v American Export Isbrandtsen Lines Inc, 125 AD2d 65, 74 [1st Dept 1987]). The proof of a party opposing summary judgment must be accepted as true and considered most favorable to it. (Strychalski v Mekus, 54 AD2d 1068, 1069 [4th Dept -2- 2 of 18 FILED: NEW YORK COUNTY CLERK 11/01/2019 06:20 PM NYSCEF DOC. NO. 92 INDEX NO. 154550/2017 RECEIVED NYSCEF: 11/01/2019 1976]). Facts presented on a summary judgment motion must be viewed “in the light most favorable to the non-moving party.” (Ortiz v Varsity Holdings, LLC, 18 NY3d 335, 340 [2011]). In addition, the court should draw all reasonable inferences in favor of the nonmoving party and should not pass on issues of credibility. (Vega v Restani Constr Corp, 18 NY3d 499, 505 [2012]; Sillman v Twentieth Century-Fox Film Corp, 3 NY2d 395, 404 [1957]; Assaf v Ropog Cab Corp, 153 AD2d 520, 521 [1st Dept 1989]). Because of its intensely factual nature, the question of whether the use of force was reasonable in the circumstances is generally best left for a jury to decide. (Holland v City of Poughkeepsie, 90 AD3d 841, 844 [2d Dept 2011]; Harvey v Brandt, 254 AD2d 718, 719 [4th Dep’t 1987]). The Noseworthy Rule Applies Garry Conrad is not able to give us his version of the events that took place in the Food Emporium or to tell us about his communications with Officer Kevin Gleason. Where, as here, the defendant has the ability to produce evidence that the plaintiff is unable to present, the Noseworthy rule applies. The case of Noseworthy v New York, 298 NY 76 [1948] involved a man who was struck by a subway train and killed. At trial, the court refused to instruct the jurors that “in a death case a plaintiff is not held to as high a degree of proof of the cause of action as where an injured person can himself describe the occurrence.” The Court of Appeals reversed and held the plaintiff was entitled to such an instruction. Judicial approval of a reduced burden of proof for a plaintiff in a wrongful death action who cannot testify has continued. (Wingerter v State, 58 NY2d 848 [1983]; GGN v Ramos, 171 AD3d 619 [1st Dept 2019]). STATEMENT OF FACTS Officer Gleason Ignored Mandatory Police Procedures Despite Knowledge That Garry Conrad Was an E.D.P. On May 18, 2016, Officer Kevin Gleason was assigned to the strike auto team with his partner for the day, Officer Adolfo Peralta. (Ex. H at 10:12-11:1.) Officer Gleason says he believes -3- 3 of 18 FILED: NEW YORK COUNTY CLERK 11/01/2019 06:20 PM NYSCEF DOC. NO. 92 INDEX NO. 154550/2017 RECEIVED NYSCEF: 11/01/2019 he received a 911 call to go to 49th Street and 8th Avenue for a disorderly group of Version protestors. (Ex. H at 14:12-15:14.) Sgt. Mark Amundson, their “boss” and the highest-ranking supervisory officer on the scene, believes the defendants all “kind of showed up around the same time” at that location. (Ex. J at 14:18-25; 15:14-19.) Officer Gleason and Officer Peralta arrived at their post between 7:40 and 7:55 a.m. (Ex. H at 15:15-17; Ex. I at 17:9-11; 20:5-7.) In violation of Patrol Guide Procedure No. 203-05 (“P.G. 203-05”)1, Officer Gleason left the assignment without informing his partner or his supervisor to get a cup of coffee at a Starbucks across 8th Avenue. (Ex. 11-P.G. 203-05; Ex. H at 20:19-25.) Officer Peralta does not remember Officer Gleason leaving to get a cup of coffee or coming back with a cup of coffee. (Ex. I at 20:820.) Sgt. Amundson also does not recall if Officer Gleason went across the street to buy a cup of coffee and admits Officer Gleason never told him he was leaving the area to get a cup of coffee. He claims Gleason did not have to get his permission to leave the area to get coffee. (Ex. J at 33:222.) The fact that Officer Gleason abandoned his post to get coffee without informing his partner or supervisor is not mentioned in any of the “investigations” of the incident that resulted in Garry Conrad’s death although the fact that Officer Peralta and Sgt. Amundson did not know where Officer Gleason was for a critical period of time had a profound effect given the events that subsequently transpired. As he was coming back across 8th Avenue with his cup of coffee, Officer Gleason was approached by a Food Emporium employee who told Officer Gleason that a customer and employees of the Food Emporium were having a dispute and were arguing. (Ex. H at 19:6-11; 21:10-22:7.) Their conversation was very brief, just seconds. (Ex. H at 19:20-22.) Officer Gleason 1 P.G. 203-05 states it is the duty of an officer to “[R]emain on post until properly relieved, except for police necessity, personal necessity or meal period.” An officer who is absent from a post or assignment may be subject to command discipline pursuant to Patrol Guide Procedure No. 206-03 (“P.G. 206-03”), Schedule “A” Violations #1. -4- 4 of 18 FILED: NEW YORK COUNTY CLERK 11/01/2019 06:20 PM NYSCEF DOC. NO. 92 INDEX NO. 154550/2017 RECEIVED NYSCEF: 11/01/2019 decided to go into the Food Emporium, abandoning his “primary duty that day…to keep [the protesters] peaceful and orderly” without informing his partner or his supervisor. (Ex. H at 20:68; 22:15-23:3; 23:12-24:18.) He did not inform Officer Peralta or Sgt. Amundson that he was going into the Food Emporium. (Ex. H at 26:12-24; 27:15-28:14; 37:18-25; Ex. I at 28:3-9; Ex. J at 36:837:24.) Officer Gleason followed the employee into the Food Emporium and got on the escalator to travel to the lower level of the store. (Ex. H at 28:16-25.) On May 18, 2016, in his interview with the NYPD Force Investigation Division (“FID”), just hours after Garry Conrad’s death, he describes what he sees and hears: I see as soon as I’m maybe halfway down the escalator, I can hear the, the perp was yelling and screaming. Basically, screaming like racial slurs, like “fucking nigger, fuck you, and I’ll fucking kill you”. Stuff like that. Screaming and yelling at the workers that were downstairs. (Ex. 15 at 6; Document 39-6 at 9.) Video surveillance shows Mr. Conrad was already on the escalator going up to street level when Officer Gleason got off the escalator at the lower level to talk to the employees. (Def. Affirm. ¶¶ 47, 108; Ex. H at 32:24-33:3; Ex. R- Escalator Down.) In the FID interview, Officer Gleason unequivocally identifies Garry Conrad as an emotionally disturbed person. (Ex. 15 at 8:20-9:6 – Document 39-6 at 11-12.) In addition, as Dr. Telesco points out, “Police Officer Gleason directly observed Mr. Conrad engage in this erratic and disturbing behavior as he descended the escalator…and was sufficiently alarmed by Mr. Conrad’s behavior that he actually removed a canister of mace and held it in his hand as he was descending the escalator.” (Dippold Aff., Ex. 1, Report of Grace Telesco, Ph.D. (hereinafter “Telesco Report”), at 3.) Despite this knowledge, Officer Gleason did not notify his supervisor, Sgt. Amundson, or call for any backup before he continued his efforts to confront Mr. Conrad. Although Officer Gleason testifies at his deposition about a similar use of racist slurs -5- 5 of 18 FILED: NEW YORK COUNTY CLERK 11/01/2019 06:20 PM NYSCEF DOC. NO. 92 INDEX NO. 154550/2017 RECEIVED NYSCEF: 11/01/2019 directed at him when he and Mr. Conrad arrive at the street-level top of the escalator in the store, that exchange is not mentioned in the FID interview and surveillance video does not appear to show them speaking to each other at that time. (Ex. H at 36:3-37:2; Ex. R, Entry-Exit.) While Officer Gleason initially claims to have made a decision to arrest Mr. Conrad before he entered the revolving door, he did not tell Mr. Conrad he was under arrest and he does not recall telling Mr. Conrad to stop. (Ex. H at 40:10-41:20.) Officer Gleason contradicts his statement about his decision to arrest Mr. Conrad, saying he did not decide to take Mr. Conrad into custody until they were outside the store on the street. (Ex. H at 40:13-41:16; 44:25-45-4; 54:7-56:8.) At no time did Officer Gleason inform any members of his team that he intended to arrest Mr. Conrad. (Ex. H at 42:6-21.) As Dr. Telesco points out, with knowledge of the fact he was dealing with an E.D.P., notification to his supervisor of his decision to arrest was mandatory. (Ex. 1, Telesco Report, at 4.) Contrary to the events shown by the interior surveillance video, Officer Gleason untruthfully tells investigators Mr. Conrad “just goes right out the revolving doors and I start trying to talk to him . . . I even, I grabbed him.” (Ex. 15 at 7-8 and 10-11.) The Entry-Exit Video (Exhibit R) shows Officer Gleason forcefully shoving Mr. Conrad from behind with both hands while in the limited compartment of a revolving door. Since Police Officer Gleason knew that he was dealing with an EDP, Police Officer Gleason’s decision to attempt to arrest Mr. Conrad and take him into custody by himself, without calling for backup, was a clear violation of police procedure. Under these circumstances, it was mandatory, not optional, for Police Officer Gleason to notify his supervisor, Sgt. Amundson, of the fact that he was dealing with an EDP. (Ex. 1, Telesco Report, at 4.) As the Patrol Supervisor, Sgt. Amundson would been the only law enforcement officer with a Taser device in his possession. During the FID interview, Officer Gleason gives a vivid description of his verbal exchange with Mr. Conrad after leaving the Food Emporium. (Ex.15 at 8-9; Document 39-6 at 11-12.) That -6- 6 of 18 INDEX NO. 154550/2017 FILED: NEW YORK COUNTY CLERK 11/01/2019 06:20 PM NYSCEF DOC. NO. 92 RECEIVED NYSCEF: 11/01/2019 description is contradicted by the conversation overheard by Lauran Code. She noticed a police officer and a man having a calm conversation. (Ex. K at 22:16-23:3; 25:7-24; Ex. L at 96:21100:8.) She testified under oath as to what she first heard and saw as follows: I heard Mr. Conrad say, Are we done? And the officer said, Do you really want to take me on? He said, No. And he turned around to start to walk away, and then I saw Officer Gleason grab him with both hands and pull him to the ground. (Ex. K at 14:2-15:11; Ex. L at 101:3-7.) As video surveillance shows, Officer Gleason did more than pull him to the ground. The force used appears to greatly exceed what would be necessary to overcome resistance to taking an emotionally disturbed person into custody in accordance with Patrol Guide Procedure No. 203-11 (Ex. T - Use of Force.) As Dr. Telesco, states: The violent and aggressive manner in which Police Officer Gleason brought Mr. Conrad to the ground constitutes yet another flagrant violation of accepted police practice. Up until that point, Mr. Conrad had not displayed any weapons, nor had he attempted to punch, kick or strike any civilian or police officer. In short, his words may have been threatening, but his actions were not. There was no need to use physical force against him. Instead, Police Officer Gleason should have followed Mr. Conrad and called for back-up. (Ex. 1, Telesco Report, at 4.) The degree of force used by Officer Gleason to take Mr. Conrad to the ground is especially appalling, given that Patrol Guide Procedure 203-11 calls for coordinated efforts, the use of minimum necessary force, and intervention in the event the use of force against a subject clearly becomes excessive: It is my opinion that Police Officer Gleason violated accepted police practice by provoking a mentally ill individual and by engaging in behavior that one might see with juveniles in a schoolyard, when one pushes another in order to “pick a fight” and “save face.” Since an EDP has a skewed perception of reality to begin with, it is not surprising that Mr. Conrad felt that his life was in danger when he was confronted by Police Officer Gleason. Specifically, after Police Officer Gleason shoved Mr. Conrad out the door, threatened him, grabbed him from behind and then violently threw him down to the ground, Mr. Conrad undoubtedly feared for his life and therefore felt compelled to defend himself against this attack. -7- 7 of 18 FILED: NEW YORK COUNTY CLERK 11/01/2019 06:20 PM NYSCEF DOC. NO. 92 INDEX NO. 154550/2017 RECEIVED NYSCEF: 11/01/2019 (Ex. 1, Dr. Telesco’s Report, at 5.) But for Officer Gleason’s conduct in throwing to the ground a man who believed to be an E.D.P., setting in motion a course of conduct that led to escalation rather than de-escalation of a situation that could have been avoided, Mr. Conrad would still be alive. In Dr. Telesco’s opinion, “police Officer Gleason’s repeated and flagrant violations of proper police procedures were the direct cause of the tragic shooting which occurred on May 18, 2016.” (Ex. 1, Telesco Report, at 5.) The Report of Dr. Grace Telesco Attached as Exhibit 1 to the plaintiff’s Affirmation in Support is the Report and Curriculum Vitae of Dr. Grace A. Telesco, providing information regarding her extensive experience with policing practices and procedures, particularly those relating to the handling of emotionally disturbed persons (E.D.P.’s). Dr. Telesco’s report, in additional to describing her qualifications, lists the materials she reviewed in preparing the report, a summary of the incident, a list of mandatory police rules and procedures violated by Officer Gleason, and her opinions and conclusions. Among the materials Dr. Telesco reviewed are relevant Patrol Guide Procedures attached as numbered exhibits to plaintiff’s affirmation in opposition and attached as letter exhibits to defendant’s affirmation in support: Patrol Guide Procedure No. 203-05 – Performance on Duty–General (Exhibit 11) Patrol Guide Procedure No. 206-03 – Violations Subject to Command Discipline (Exhibit 12) Patrol Guide Procedure No. 216-05 – Mentally Ill or Emotionally Disturbed Persons (Exhibit V and Exhibit 14) Patrol Guide Procedure No. 203-11 – Use of Force (Exhibit T) Patrol Guide Procedure No. 212-95 – Use of Pepper Spray Devices (Exhibit 13) Because of its importance to the issues to be addressed on this motion, plaintiff attaches a copy of Patrol Guide Procedure No. 216-05 regarding emotionally disturbed persons to Plaintiff’s Affirmation in Opposition as Exhibit 14. Following her review of the incident involving Mr. Conrad, it is Dr. Telesco’s opinion that Police Officer Gleason violated multiple mandatory police -8- 8 of 18 INDEX NO. 154550/2017 FILED: NEW YORK COUNTY CLERK 11/01/2019 06:20 PM NYSCEF DOC. NO. 92 RECEIVED NYSCEF: 11/01/2019 rules and procedures describing how members of the NYPD should deal with emotionally disturbed persons. Specifically, Dr. Telesco identified, among others, the following violations by Officer Gleason: • • • • • • • • • Failed to notify the Patrol Supervisor (Sgt. Amundson) that he was leaving his post to enter the Food Emporium to investigate a complaint; Failed to notify the Patrol Supervisor that he was involved in an encounter with an EDP; Failed to isolate and contain the EDP; Failed to create a “zone of safety” with the EDP; Failed to notify the Patrol Supervisor that he was about to take an EDP into custody; Improperly attempted to take an EDP into custody by himself; Improperly used force against an EDP by “check pushing” him into the revolving door; Improperly provoked an EDP by threatening him (“do you really want to take me on?”); and Improperly grabbed an EDP and violently threw him to the ground. ARGUMENT Plaintiff’s Common Law Claims of Assault & Battery Require Analysis Under New York Law Rather Than the Federal Excessive Force Analysis In Response to Defendants’ Point I According to defendants, claims that law enforcement personnel used excessive force in the course of an arrest are analysed under the Fourth Amendment and its standard of objective reasonableness, citing Graham v. Connor (490 US 386, 394-95 [1989]) and a multitude of 42 U.S.C. § 1983 and other cases involving excessive force issues. If this were a civil rights action or a case involving a valid arrest with indisputable probable cause, plaintiff would agree. However, plaintiff’s causes of action are all common law claims -- including assault, battery, wrongful death and pain and suffering -- that require analysis pursuant to New York State law. As discussed in Goonewardena v Spinelli (2017 US Dist. LEXIS 157824, at *27-28, 2017 WL 4280549 * 28 [E.D.N.Y., September 26, 2017]): Defendants overlook the critical difference between a federal excessive force claim and New York state law assault and battery claims against officers for actions that occur in the course of an arrest. Under federal law, when an officer arrests someone without probable cause, the unlawful arrest does not automatically give rise to an -9- 9 of 18 FILED: NEW YORK COUNTY CLERK 11/01/2019 06:20 PM NYSCEF DOC. NO. 92 INDEX NO. 154550/2017 RECEIVED NYSCEF: 11/01/2019 excessive force claim. See, Cty. of Los Angeles v. Mendez, 581 U.S. __ 137 S. Ct. 1539, 1547-48, 198 L. Ed. 2d 52 (May 30, 2017) (Federal law does not dictate "that any Fourth Amendment violation that is connected to a reasonable use of force should create a valid excessive force claim. Because the excessive force and false arrest factual inquiries are distinct, establishing a lack of probable cause to make an arrest does not establish an excessive force claim, and vice-versa." (citation and internal quotation marks omitted)). However, as discussed above, New York law holds that any force used during the course of an unlawful arrest gives rise to assault and battery claims against the arresting officers. See, e.g., Rucks, 96 F. Supp. 3d at 153 (explaining that, under New York law, "where an arrest is unlawful and without consent, the use of force in an arrest must give rise to a claim for assault and battery" (citing Johnson, 665 N.Y.S.2d at 441)). (See also Serrano v City of New York, 2018 US Dist LEXIS 116262, 2018 WL 3392869, at *11 [SDNY July 12, 2018]). Under New York law, assault is an intentional placing of another person in fear of imminent harmful or offensive contact. (Id.). To recover damages for common-law battery, a plaintiff must prove that there was bodily contact, that the contact was offensive, i.e., wrongful under all of the circumstances, and an intent to make the contact without the plaintiff’s consent.” (Holland v City of Poughkeepsie, 90 AD3d 841, 844 [2011] [citing Higgins v Hamilton, 18 AD3d 436, 436-437 [2005]; Lepore v Town of Greenburgh, 120 AD3d 1202, 1203; 992 NYS2d 329, 331 [2d Dept 2014]; Sulkowska v City of New York, 129 F Supp 2d 274, 294 [SDNY 2001] [quoting Lederman v Adams, 45 F Supp 2d 259, 268 [SDNY 1999]). While defendants argue that federal excessive force claims and state law assault and battery claims against police officers are nearly identical, such an argument is improper. If, in a federal case, there is a use of force and finding that no probable cause existed or that there was a false arrest, it does not automatically result in a finding of excessive force. In New York, if there is a use of force and a lack of probable cause or a false arrest, there is automatically an assault and battery. - 10 - 10 of 18 INDEX NO. 154550/2017 FILED: NEW YORK COUNTY CLERK 11/01/2019 06:20 PM NYSCEF DOC. NO. 92 RECEIVED NYSCEF: 11/01/2019 “Any use of force against a plaintiff may constitute an assault and battery if an arrest is determined to be unlawful, regardless of whether the force would be deemed reasonable if applied during a lawful arrest.” (Johnson v Suffolk Cnty Police Dept, 245 AD2d 340, 665 NYS.2d 440, 441 [2d Dept 1997]; Mesa v City of New York, No 09 Civ. 10464 (JPO), 2013 US Dist LEXIS 1097, 2013 WL 31002, at *32 [SDNY Jan 3, 2013] [“In New York, when there is no probable cause for an arrest, all force employed during that arrest is unlawful.”]). The pertinent affirmative defenses listed in defendants’ Answer to Amended Complaint, (Ex. E, Dkt. Nos. 20 and 50), include decedent’s culpable conduct, assumption of risk, failure to state a cause of action and, with respect to defendants, immunity for their exercise of discretion in the performance of a governmental function and/or their exercise of professional judgment, justified use of force and deadly physical force, and tactical police decisions involving the governmental exercise of professional judgment and discretion. (Ex. E ¶¶ 19-27.) The question in this case is not whether there was a use of excessive force, but, rather, whether Officer Gleason, Officer Peralta or Sgt. Amundson assaulted and battered Garry Conrad or wrongfully caused his death and his pain and suffering. A proper analysis of the use of force in this case requires consideration of the claims actually alleged. It is questionable whether probable cause existed to arrest Garry Conrad and there is an issue as to whether he was arrested while he was still alive. Here, there is an added issue with respect to whether probable cause to arrest Garry Conrad existed because he was identified as an emotionally disturbed person. In response to a question regarding the necessity to consult with a supervisor before arresting an E.D.P., Sergeant Amundson testified: Well, you don't arrest an E.D.P. If you're taking an E.D.P. in custody for mental illness and you're bringing him to the hospital, it's not an arrest. It's more a restraint until you get them to the hospital. You're talking -- arrest is a crime. I - 11 - 11 of 18 FILED: NEW YORK COUNTY CLERK 11/01/2019 06:20 PM NYSCEF DOC. NO. 92 INDEX NO. 154550/2017 RECEIVED NYSCEF: 11/01/2019 mean, if you're going to take an E.D.P. into custody in order to bring him to the hospital or something like that, yeah, you would notify a supervisor. But that's after you actually have him in custody. The existence or absence of probable cause is a question of fact that becomes a question of law to be decided by the court only where there is no real dispute as to the facts or the proper inferences to be drawn therefrom. (Fortunato v City of New York, 63 AD3d 880 [2009]; Fausto v City of New York, 17 AD3d 520, 521 [2005]; People v. Bigelow, 66 NY2d 417 [1985]). That is not the situation in this case. If a disputed issue of material fact arises with respect to whether arguable probable to arrest exists, that issue must be put to a jury along with the assault and battery claim. (Goonewardena v Spinelli, 2017 US Dist LEXIS 157824, 2017 WL 4280549 [2017]; see also Mendez v City of New York, 137 AD3d 468, 470; 27 NYS3d 8, 11 [1st Dept 2016] [“Where there is conflicting evidence concerning the existence of probable cause to arrest the plaintiff, from which reasonable persons might draw different inferences, the question is one for the jury [citations omitted]. Similarly, because of its intensely factual nature, the question of whether the use of force was reasonable under the circumstances is generally best left for a jury to decide.” Combs v City of New York, 130 AD3d 862, 15 NYS.3d 67 [2d Dept 2015] [citing Holland v City of Poughkeepsie, 90 AD3d 841, 844, 935 NYS2d 583 [2011]). The jury’s determination of the culpability will have to be determined for each defendant separately. If any of the officers prevail at trial, they may avail themselves of immunity at that point. For example, if probable cause is found to have existed and the issue of the assault is therefore to be addressed under the Fourth Amendment reasonableness standard, pushing or “nudging” a potential arrestee has been held to be an unnecessary and disproportionate use of force when the potential for serious injury exists, as well it might with a revolving door. A jury could find that the purported ‘check push” that Officer Gleason administered in a moving revolving door - 12 - 12 of 18 FILED: NEW YORK COUNTY CLERK 11/01/2019 06:20 PM NYSCEF DOC. NO. 92 INDEX NO. 154550/2017 RECEIVED NYSCEF: 11/01/2019 was objectively unreasonable. The jury could also find it unreasonable to push or shove an E.D.P. to the ground without any basis or provocation. In Greene v. Bryan, (2018 US Dist LEXIS 122725 *17; 2018 WL 3539811 [EDNY July 23, 2018]), Mr. Greene was a person suspected of a minor, non-violent offense (either trespassing, disorderly conduct, or loitering for the purpose of gambling) who was pushed down a flight of stairs by a peace officer. He was characterized as a person who was not fleeing or attempting to evade arrest and who did not pose a danger to anyone. In denying a peace officer’s summary judgment motion, the Court held that a jury could easily find that the purported push was objectively unreasonable, even when viewed from the perspective of a reasonable officer on the scene. (See Adedeji v Hoder, 935 F Supp 2d 557, 565-69 [EDNY 2013] [holding that a reasonable jury could find that “nudging” forward a handcuffed arrestee who was refusing to move while standing at the top of a slippery set of stairs was objectively unreasonable force because, although the use of force was “slight,” it “carried with it a substantial risk that [the plaintiff] would slip and fall down the stairs”]). To try to undermine any claim that Officer Gleason’s provocative conduct generated the events that caused Garry Conrad’s death, the defendants reply on Cty of Los Angeles v Mendez, 137 SCt 1539 [2017] to avoid the application of a “provocation rule.” The rule applied when a police officer intentionally or recklessly provoked a violent response and the provocation also constituted an independent constitutional violation, thereby, according to Justice Alito, permitting excessive force claims that supposedly could not succeed on their own terms. However, there are not “other” Fourth Amendment claims such as an unreasonable entry in this matter; instead, there is a prior physical assault. - 13 - 13 of 18 FILED: NEW YORK COUNTY CLERK 11/01/2019 06:20 PM NYSCEF DOC. NO. 92 INDEX NO. 154550/2017 RECEIVED NYSCEF: 11/01/2019 The Professional Judgment Rule Does Not Protect a Police Officer Who Violates Acceptable Police Practice In Response to Defendants’ Point II The professional judgment rule applies to conduct of municipal employees exercising professional judgment in carrying out their duties or making tactical decisions. (Johnson v City of New York, 15 NY3d 676, 680 [2010]).2 Liability will not be imposed where the employee’s conduct involves the exercise of professional judgment such as electing one among many acceptable methods of carrying out tasks, even if the decisions made show poor judgment. (Kenavan v City of New York, 70 NY2d 558, 569 [1992]). The immunity afforded a municipality for its employee’s discretionary conduct does not extend to situations where the employee, a police officer, violates acceptable police practice. (Lubecki v City of New York, 304 AD2d 224, 233-234, 758 NYS.2d 610, 617 [2003]). The Appellate Division rejected defendants’ challenge to admissibility of Patrol Guide rules and guidelines for the purpose of evaluating whether officers adhered to or materially deviated from prescribed protocol. In Frederic v City of New York, pepper spray and a physical assault with excessive force resulted in denial of immunity for conduct involving the exercise of discretion and reasoned judgment. Likewise, the defendants in this case deviated from prescribed protocols and acceptable police practice – some of the defendants more than others. Furthermore, though less deadly force was available, the officers failed to use it, causing bullets to fly out in the middle of a busy New York City intersection, risking and, in fact causing, damage to innocent pedestrians. Defendants’ claim that plaintiff is alleging intentional and negligence on the same set of operative facts in that they failed to use care in the performance of their police duties. While assault and battery are clearly intentional torts, wrongful death claims may involve negligent, reckless, willful or intentional conduct. These causes of action may arise out of the same incident, but the elements of these claims are very different. Plaintiff is not alleging a negligent assault. It is unclear why this issue is being discussed in the middle of a point on the professional judgment rule. 2 - 14 - 14 of 18 FILED: NEW YORK COUNTY CLERK 11/01/2019 06:20 PM NYSCEF DOC. NO. 92 INDEX NO. 154550/2017 RECEIVED NYSCEF: 11/01/2019 The professional judgment rule does not protect any of the defendants, whether the violation of acceptable police practices is a failure to supervise or to obey mandatory procedures concerning E.D.P.’s. Plaintiff’s Wrongful Death Cause of Action A cause of action to recover damages for wrongful death was unknown at common law and exists, in New York State solely by reason of statute. (EPTL 5-4.1; Liff v Schildkrout, 49 NY2d 622, 631, 632 [1980]; George v Mt Sinai Hosp, 47 NY2d 170, 176 [1979]; Ratka v St. Francis Hosp., 44 NY2d 604, 610, 612 [1978]; Kilberg v Northeast Airlines, 9 NY2d 34, 38 [1961]; Crapo v City of Syracuse. 183 NY 395, 399 [1906]; D’Andrea v Long Island R R Co, 117 AD3d 10, 1112; 501 NYS2d 891, 892 [2d Dept 1986]). Wrongful death claims encompass negligent, willful and deliberate acts. The elements of a cause of action to recover damages for wrongful death are (1) the death of a human being, (2) the wrongful act, neglect or default of the defendant by which the decedent’s death was caused, (3) the survival of distributees who suffered pecuniary loss by reason of the death of decedent, and (4) the appointment of a personal representative of the decedent. (Chong v New York City Transit Authority, 83 AD2d 546, 547; 441 NYS2d 24, 25 [2d Dept 1981]; Rivera v Viva Bar & Lounge, 2010 NY Misc LEXIS 2651 *13-14 [Sup Ct, New York County, March 23, 2010]). Defendants’ confusion regarding an assertion of negligence claims by plaintiff may regarding negligence Unlike cases commenced under 42 U.S.C. § 1983, municipalities may be liable, under the doctrine of respondeat superior, for the common law torts, such as false arrest, malicious prosecution, assault, and battery, committed by their employees. (See Eckardt v City of White Plains, 87 AD3d at 1051; see also Merritt v Village of Mamaroneck, 233 AD2d 303, 304, 649 NYS2d 475 [1996]; see also Lepore v Town of Greenburgh, 120 AD3d 1202, 1204; 992 NYS2d 329, 332 [2d Dept 2014]). - 15 - 15 of 18 FILED: NEW YORK COUNTY CLERK 11/01/2019 06:20 PM NYSCEF DOC. NO. 92 INDEX NO. 154550/2017 RECEIVED NYSCEF: 11/01/2019 Here, it is clear that the negligent and reckless actions of these officers caused the death of Garry Conrad. This has caused the distributees, primarily Eric Conrad, to suffer pecuniary loss as a result of his brother’s death. Eric Conrad also testified in his deposition about the emotional trauma of losing his brother, especially at the hands of police officers who handled the interaction in such a reckless manner. It has caused him depression, sleeplessness, a loss of appetite, and has made him less social. (Ex. X at 49:7-17; 53:19The Professional Judgment Rule Does Not Protect a Police Officer Who Violates Acceptable Police Practices In Response to Defendants’ Point III The last point in defendants’ memorandum concerns Officer Gleason, claiming he had ample probable cause to arrest Mr. Conrad for a multitude of crimes, that the decisions on how to investigate and detain Mr. Conrad were discretionary decisions, and that a “supposed” violation of the Patrol Guide provision on E.D.P.’s cannot create a case of action. None of these claims are supported by the facts. First, Officer Gleason testified at his deposition that he planned to charge Garry with aggravated harassment, trespassing, harassment as a violation and disorderly conduct but he did not tell Garry he was under arrest. Ex. H at 40:21-41:10. Given that he was considering violations rather then misdemeanors or felonies, it is not at all clear that he had “ample probable cause to arrest Mr. Conrad for a multitude of crimes.” In addition, there are serious factual gaps and discrepancies in the supposed probable cause he claimed to have observed. For example, the description of the events that took place at the top of the escalator in the Food Emporium range from his testimony that Mr. Conrad went out the revolving door unimpeded (Ex. 15 at 7-8 and 1011) differs significantly from his testimony that Mr. Conrad threatened him at the top of the escalator (Ex. H at 35:7-36:10); and both of these descriptions are undermined by the surveillance - 16 - 16 of 18 INDEX NO. 154550/2017 FILED: NEW YORK COUNTY CLERK 11/01/2019 06:20 PM NYSCEF DOC. NO. 92 RECEIVED NYSCEF: 11/01/2019 video which seems to show both of them standing at the top of the escalator without speaking (Ex. R-Entry-Exit) followed by Officer Conrad’s first physical attack on Mr. Conrad. The issues of probable cause and a determination of the existence and legitimacy of an arrest must go to the jury in conjunction with plaintiff’s claims for assault and battery. Second, the claim that Officer Gleason’s assaults on Mr. Conrad were discretionary decisions about investigating and detaining him do not deserve serious consideration. Within 33 seconds of entering the Food Emporium, Officer Gleason was physically assaulting Mr. Conrad. Plaintiff has made no claim for negligent investigation and it is clear there was no “investigation.” Instead, Officer Gleason, knowing that he was dealing with an emotionally disturbed person, violated numerous aspects of Patrol Guide Procedure No. 216-05 by failing, among other violations of proper police practices, to establish a zone of safety and to seek assistance from his team. The immunity afforded a police officer for discretionary conduct does not extend to situations where the officer violates acceptable police practice. Lubecki v. City of New York, 304 A.D.2d 224, 233-234, 758 N.Y.S.2d 610, 617 (2003).3 Officer Gleason materially deviated from prescribed protocol and is not entitled to immunity for discretionary conduct. Lastly, the use of Patrol Guide provisions to establish the standard of care to be employed by police officers, including in connection with using physical force against civilians, was specifically approved by the Appellate Division, First Department, in Lubecki. Id. at 234. As the Court determined in that case, involving a civilian hostage: In this case, the Patrol Guide established when officers may discharge their weapons, and expert testimony established the impropriety of discharging a weapon, when doing so unnecessarily endangers an innocent bystander. Several police officers acknowledged that it was against police procedures to discharge their weapons when an innocent person was in close proximity to the suspect. Here, Defendant’s reliance on Hephzibah v. City of New York, 124 A.D.2d 442 (1st Dep’t 2015) does not salvage the claim for discretionary immunity. Contrary to the proof of acceptable police practices submitted by plaintiff on this motion, the plaintiff in Hephibah offered no proof of acceptable police practices. 3 - 17 - 17 of 18 FILED: NEW YORK COUNTY CLERK 11/01/2019 06:20 PM NYSCEF DOC. NO. 92 INDEX NO. 154550/2017 RECEIVED NYSCEF: 11/01/2019 decedent was held as a human shield in the line of fire. Moreover, the testimony showed that police procedures applicable to hostage situations were not followed. It was undisputed that a hostage negotiator was never called, Emergency Services was never called, no ranking officer took control although two sergeants were present, and no commands in furtherance of firearms control were given. Thus, the evidence established that the police violated clearly established protocols and procedures, rendering the professional judgment rule inapplicable to immunize their affirmative acts of negligence. Lubecki, 304 A.D.2d at 234-235; 758 N.Y. at 618. Defendants’ motion seeking immunity pursuant to the professional judgment rule and summary judgment should be denied as the Patrol Guide provisions referenced in this matter established the standard of care to be employed by the defendants and the expert report submitted by plaintiff establishes the impropriety of the defendants’ conduct in failing, among other lapses, to have a ranking officer take control, to call Emergency Services, to establish a zone of safety, and to isolate and contain Mr. Conrad. For all the foregoing reasons, defendants’ motion for summary judgment and to dismiss plaintiff’s complaint should be denied. Dated: New York, New York October 31, 2019 BELDOCK LEVINE & HOFFMAN LLP Attorneys for Plaintiff By: /s/_____________________________ Karen Dippold Luna Droubi 99 Park Avenue—PH/26th Floor New York, New York 10016 (212) 490-0400 - 18 - 18 of 18