Banks ex rel. Banks v. Yokemick

• Decision Date: 03 December 2001
• Docket Number: No. 99 Civ. 10815(VM).,99 Civ. 10815(VM).
• Citation: 177 F.Supp.2d 239
• Parties: Maybell E. BANKS, as Administratrix of the Estate of her son Kenneth BANKS, and on her own behalf, Plaintiff, v. P.O. Craig YOKEMICK, Defendant.
• Court: U.S. District Court — Southern District of New York

177 F.Supp.2d 239

Maybell E. BANKS, as Administratrix of the Estate of her son Kenneth BANKS, and on her own behalf, Plaintiff, v. P.O. Craig YOKEMICK, Defendant.

No. 99 Civ. 10815(VM).

United States District Court, S.D. New York.

December 3, 2001.

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Jonathan S. Abady, Emery, Cuti, Brinckerhoff & Abady, P.C., New York City, for plaintiff.

Beth Hoffman, Michael D. Hess, Corp. Counsel of City of New York, New York City, for City of New York.

Walter A. Kretz, Jr., Seiff & Kretz, New York City, James J. Skelton, Worth, Longworth, Bamundo & London, New York City, for Craig Yokemick, P.O.

Alexander Peltz, Peltz, Walker & Dubinsky, New York City, for Joanne Brown, Andrew Burns, Carlos Castro, Kevin Flynn, Patrick Gerahty, Janice Grier, Timothy Krumm, Michael Lampman, Elizabeth Lugo, and John McAndrew.

Richard E. Signorelli, Law Office of Richard E. Signorelli, New York City, for James McFarland, P.O., John O. Sullivan and Eldemiro Valle.

DECISION AND ORDER

MARRERO, District Judge.

BACKGROUND

Plaintiff Maybell E. Banks (hereinafter "Ms. Banks") commenced this action alleging claims under § 1983 of the Civil Rights Act, 42 U.S.C. § 1983, and under state law, in her capacity as administratrix of the estate of her son, Kenneth Banks (hereinafter "Banks"), as well as on her own behalf.¹ She asserted several claims against the City of New York (hereinafter the "City"), nineteen named individuals and various unknown defendants, all of whom at the relevant times were employees of the New York City Police Department. The case stems from the alleged unlawful detention and use of excessive force by defendant police officer Craig Yokemick ("Yokemick") in connection with his arrest of Banks, who died from injuries he suffered during that incident.

The City, on behalf of all defendants except for Yokemick, reached a settlement for a total of $750,001 with Ms. Banks. All other defendants were released and the claims Ms. Banks had asserted against them, her own as well as those of Banks's estate, were then dismissed. The matter proceeded to trial as to Yokemick alone. The jury awarded Banks a total of $605,001 consisting of (1) $25,000 for Banks's conscious pain and suffering and $500,000 for his loss of life, both connected with the claim of use of excessive force; (2) $75,000 for Banks's pain and suffering associated with a state law claim for negligent delay in obtaining medical assistance; and (3) $5,000 on Banks's state law wrongful death cause of action, and (4) nominal damages of $1.00 on Banks's claim of unlawful arrest.

Now before the Court are Yokemick's post-trial motions for (1) judgment notwithstanding the verdict pursuant to Fed. R.Civ.P. 50(b); (2) a credit to set off, pursuant to New York General Obligations Law (hereinafter "G.O.L.") § 15-108 (McKinney's 2001), the full amount of the jury award against the recovery from Ms. Banks's settlement with the released defendants; and (3) indemnification pursuant to New York General Municipal Law ("G.M.L.") § 50-k (McKinney's 2001). For the reasons discussed below, Yokemick's motion for judgment as a matter of law is denied. His motion for approval of setoff is denied subject to further proceedings described below. Decision on his motion for indemnification is reserved pending the City's final determination, in the light of the judgment rendered herein, as to whether it will indemnify Yokemick for any portion of his liability.

FACTS

The trial evidence established that Banks was riding a bicycle on 125th Street and Madison Avenue, Manhattan on October 29, 1998 when Yokemick, who was chasing Banks, threw his police radio at him, striking the side or rear of Banks's head with sufficient force to knock him off the bicycle and cause him to fall to the street. The jury also heard evidence indicating that Yokemick did not immediately disclose to other officers who arrived at the scene and drove Banks away to the police station, or to personnel at the precinct, or to ambulance attendants who later transported Banks to the hospital, that Banks had been struck on the head by Yokemick's radio. Banks's life could not be saved by the time he was finally taken to the hospital and properly diagnosed later that day as having suffered head injuries. Hours after his arrival at the hospital he went into a coma, was pronounced brain dead two days later on October 31, 1998 and was removed from life support on November 10, 1998. An autopsy by the Office of Chief Medical Examiner determined the cause of Banks's death as having resulted from a blunt impact to the head that fractured his skull and produced brain contusions.

Yokemick did not appear at the trial. Through cross-examination he endeavored to suggest a defense that he acted reasonably, in good faith and with justification in the proper and lawful exercise of his duties as a police officer and that Banks's injury could have been caused by his head striking the pavement during the course of Yokemick's making a lawful arrest.

STANDARD OF REVIEW UNDER RULE 50

A judgment as a matter of law pursuant to Rule 50 is appropriate where "there is no legally sufficient evidentiary basis for a reasonable jury to find for a party." Merrill Lynch Interfunding, Inc. v. Argenti, 155 F.3d 113, 120 (2d Cir.1998). The court may not reach such a determination by evaluating the credibility of witnesses or the relative weight of evidence. Rather, in assessing a motion for judgment under Rule 50, the Court must view the evidence in the light most favorable to the non-movant. See Caruolo v. John Crane, Inc., 226 F.3d 46, 51 (2d Cir.2000); see also 9 James Wm. Moore, et al., Moore's Federal Practice ¶ 50.64[1] (3d ed.2000). To grant a Rule 50 application, there must be "`such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of her surmise and conjecture, or ... such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded men could not arrive at a verdict against [it].'" Concerned Area Residents for the Environment v. Southview Farm, 34 F.3d 114, 117 (2d Cir.1994) (quoting Song v. Ives Laboratories, Inc., 957 F.2d 1041, 1046 (2d Cir.1992) (citations omitted)).

DISCUSSION

I. RULE 50 MOTION FOR JUDGMENT

Yokemick's motion for a Rule 50 judgment as a matter of law asserts (1) what appears to be a general challenge to the sufficiency of the evidence, as well as more specific objections contending that (2) the award of $500,000 for Banks's loss of enjoyment of life should be set aside because no basis for such a claim exists under New York law; (3) the recovery of $25,000 for Banks's conscious pain and suffering on the federal claim duplicates the $75,000 damages the jury awarded on the state cause of action that also claimed pain and suffering; (4) the pain and suffering award on the state law claim should be overturned because Banks failed to produce evidence that Yokemick owed Banks a duty to obtain adequate medical attention, and (5) Banks failed to introduce any evidence supporting the jury's award of $5,000 on the state law wrongful death action.

A. SUFFICIENCY OF THE EVIDENCE

Without citing specific evidentiary grounds on which his motion rests, Yokemick made a general assertion at the close of parties' trial evidence and repeated after the jury's determination, that he was entitled to judgment notwithstanding the verdict. Insofar as Yokemick's motion addresses the jury's factual findings and is intended to challenge the sufficiency of the evidence supporting the verdict, the Court rejects the motion. It is uncontested that during the chase, while Banks was on a bicycle, Yokemick threw his police radio at him, knocking Banks to the ground. Several eyewitnesses testified that they saw Banks fall onto the pavement upon being struck by the radio. Banks's medical experts on brain injuries and forensic pathology and the City's medical examiner testified that the head trauma Banks suffered, from the effects of which he never recovered and ultimately died, was consistent with his having been struck on the head with a heavy object such as the police radio in evidence. All of this testimony corroborated the results and cause of death recorded in Banks's autopsy report.

Uncontroverted evidence also established the following facts. Following his arrest, Banks was taken to the local precinct rather than to a nearby hospital. The officers who moved Banks were told, contrary to normal police practice, to bring him into the precinct through the back entrance and directly into a cell. Banks, having suffered what appeared to be an epileptic seizure soon after his arrival at the precinct, was later taken to the hospital. At no point were the officers who drove Banks to the precinct or to the hospital informed by Yokemick or anyone else that Banks had been struck on the head with a police radio, although Yokemick was present on both occasions when Banks was carried away. In fact, at the precinct Yokemick referred to Banks as a prisoner "claiming" injuries. Absent disclosure of the head blow, the condition that was reported to emergency medical attendants at the hospital as the reason for Banks's admission was the seizures he had suffered at the precinct and on the way to the hospital.

The lack of information about Banks's head injuries caused misdiagnosis of his condition and significant delay in his obtaining proper treatment for his real ailment. During this delay he suffered severe brain swelling and aggravating damage from which he never recovered. From the time Banks fell to the pavement up to the moment he went into a coma in the hospital several hours later he was semi-conscious and appeared to be suffering pain, but unable to communicate coherently. Banks' medical experts testified that had the hospital staff known about and properly treated Banks's head injuries immediately upon his admission, it might...