Banks v. Yokemick

• Decision Date: 13 June 2001
• Docket Number: No. 99 Civ. 10815(VM).,99 Civ. 10815(VM).
• Citation: 144 F.Supp.2d 272
• Parties: Maybell E. BANKS, as Administratix 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

Page 272

144 F.Supp.2d 272

Maybell E. BANKS, as Administratix 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.

June 13, 2001.

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

Beth Hoffman, Michael D. Hess, Corporation Counsel of the City of NY, Walter A. Kretz, Jr., Seiff & Kretz, James J Skelton, Worth Longworth Bamundo & London, Alexander Peltz, Peltz, Walker & Dubinsky, Richard E. Signorelli, Law Off. Richard E. Signorelli, New York City, for Defendant.

DECISION AND ORDER

MARRERO, District Judge.

Plaintiff Maybell Banks ("Banks") commenced this action on her own behalf and as administratrix of the estate of her son, Kenneth Banks. The suit was brought under § 1983 of the Civil Rights Act, 42 U.S.C. § 1983, alleging violations of constitutional rights arising from the conduct of defendant Craig Yokemick ("Yokemick"), an officer of the New York City Police Department ("NYPD"). Banks's claims include unlawful arrest and the use of excessive force, as well as wrongful death and several other related causes of action under state law.

FACTS

Banks alleges that Kenneth Banks was riding a bicycle on 125th Street and Madison Avenue on October 29, 1998 when Yokemick, who was chasing Kenneth Banks, threw his police radio at him, striking the back of Kenneth Banks's head, knocking him off the bicycle and causing him to fall to the ground. Banks further claims that Yokemick and other NYPD officers conspired to cover up the attack and jailed Kenneth Banks in the precinct instead of bringing him to a nearby hospital; that the officers refused to obtain timely and adequate medical treatment for Kenneth Banks; and that Kenneth Banks's life could not be saved by the time he was taken to the hospital later on October 29, 1998. Kenneth Banks went into a coma shortly after his arrival at the hospital and died on October 31, 1998.

Yokemick claims that he acted reasonably, in good faith and with justification in the proper and lawful exercise of his duties as a police officer. He further alleges that Kenneth Banks's injury could only have been caused when Banks's head struck the pavement as Yokemick tackled him while making a lawful arrest.

DISCUSSION

Now before the Court are various motions and requests that the parties have made on the eve of trial.¹ Yokemick renews his request, previously denied by the Court, that the trial of this matter scheduled to start in a matter of days be stayed pending the outcome of a grand jury investigation by the United States Attorney into Kenneth Banks's death. Yokemick also moves for a determination that he is entitled, as a matter of law, to representation and indemnification by the City of New York. Banks requests leave to introduce at trial, with a negative inference against Yokemick, the deposition testimony of two police officers who invoked their privilege against self-incrimination in depositions taken in connection with this action. The Court will address these motions in turn.

I. STAY OF TRIAL

Yokemick has repeatedly requested a stay of the trial, now scheduled to begin imminently. The Court reaffirms its previous denials of this motion. This ruling is not made lightly. The Court recognizes the difficult position in which Yokemick finds himself.

First, Yokemick invoked his constitutional privilege against self-incrimination in this proceeding. Second, the United States Attorney's investigation of the circumstances surrounding the death of Kenneth Banks and Yokemick's role in it remains open. Third, Yokemick, having made a blanket invocation of his Fifth Amendment rights, faces a trial in which this Court has precluded his presentation of evidence and testimony of other witnesses regarding any matters Yokemick refused to address at his deposition.

Nonetheless, the Court's ruling is not made in a vacuum. Resolution of this matter cannot be viewed solely from Yokemick's perspective, unenviable as his predicament may be. As soon as it learned of the federal investigation relevant to the events at issue here and at the request of the parties, the Court contacted the United States Attorney in order to obtain any information that might shed light on the estimated duration of the Government's investigation and the appropriateness of proceeding with the instant case. The Court has made inquiries more than once during the past year, including very recently. Unfortunately, it has received no information that could help determine whether granting a stay of the instant action at this time would serve the interests of justice. The Court also postponed scheduling a trial of this matter for at least six months pending an outcome of those proceedings.

Absent any word indicating when the Government's investigation may conclude, the Court is left to weigh competing assertions of rights and potential prejudice in proceeding to trial. On one side is a plaintiff insisting on resolving the merits of claims that were commenced more than two years ago, based on events that occurred in 1998. On the other side is a defendant facing exposure to potential criminal charges and seeking to put off the trial for the reasons already described.

As Judge Lynch recently noted in Sterling Nat'l Bank v. A-1 Hotels Int'l, Inc., No. 00 Civ.7352, 2001 WL 474240, at *2 (S.D.N.Y. May 4, 2001), the quandary the Court describes is not uncommon. Rather, it recurs with sufficient regularity that a consensus has emerged regarding the standards to be applied to guide an equitable adjustment of the various interests at stake. While the Court has the power and discretion to stay a civil action pending the outcome of related criminal proceedings, such relief is not constitutionally mandated. See Securities & Exch. Comm'n v. Dresser Indus., 628 F.2d 1368, 1375 (D.C.Cir.1980). This principle is well-established. The Second Circuit has declared that "nothing in the Constitution forbids contemporaneous civil and criminal proceedings concerning the same subject matter." Nosik v. Singe, 40 F.3d 592, 596 (2d Cir.1994). See Keating v. Office of Thrift Supervision, 45 F.3d 322, 324 (9th Cir.1995).

In exercising its discretion to stay a civil proceeding under these circumstances, the Court must decide whether the interests of justice compel such action. That decision demands a particularized inquiry into the circumstances of, and the competing interests in, the case. See Keating, 45 F.3d at 325; Federal Sav. & Loan Ins. Corp. v. Molinaro, 889 F.2d 899, 902 (9th Cir.1989); Morris v. American Fed'n of State, County and Mun. Employees, No. 99 Civ.5125, 2001 WL 123886, at *2 (S.D.N.Y. Feb. 21, 2001).

A number of factors relevant to this analysis have been enunciated by the courts, including: (1) the interests of the plaintiff in an expeditious resolution and the prejudice to the plaintiff in not proceeding; (2) the interests of and burdens on the defendant, in particular the extent to which the defendant's Fifth Amendment rights are implicated; (3) the convenience to the Court in the management of its docket and in the efficient use of judicial resources; (4) the interests of other persons not parties to the civil action; and (5) the interests of the public in the pending civil and criminal actions. See Keating, 45 F.3d at 324. Balancing these principles, the Court again reaffirms its prior rulings to deny a stay of this case.

Banks, the mother of the victim and suing on her own behalf as administratrix of her son's estate, is now 69 years old. The passage of time works considerably to Banks's detriment. Delay obviously tends to decrease the availability of witnesses. The longer the case is postponed, the more Banks risks failing to see an adjudication of her rights and those of her son's estate.

A speedier resolution would also benefit many other people involved in the events relevant to the case. These include relatives of the victim, the numerous other originally named defendants who have settled but are scheduled to appear here, and other witnesses to the event in question who are also waiting to testify. All of these persons share an abiding interest in not dangling in a state of uncertainty any longer, subject to the anxieties associated with waiting indefinitely for something that may not happen. The matter before the Court should not continue hanging over them indefinitely. Instead, they should be allowed to move on with their lives and put these events behind them, insofar as each is so able.

Weighing the defendant's interests, the Court notes that Yokemick has not been indicted. Other courts, while recognizing that this consideration is not dispositive, have indicated that an announced indictment would weigh heavily in the defendant's favor in the calculus of whether to stay a related civil case. See A-1 Hotels, 2001 WL 474240, at *3 (citing cases). Yokemick has invoked the Fifth Amendment in this action and as a consequence has been precluded from pursuing any matters he refused to address at his deposition. Yet that limitation, though significant, does not bar Yokemick from presenting a vigorous defense through cross-examination and other means available to him to challenge the substance of Banks's case.

In this regard, however, as this Court observed in granting Banks's motion to preclude certain defenses, Yokemick, whether for his own tactical reasons or otherwise, has chosen to remain on the sidelines during substantial periods of this litigation, as though here as a bystander, rather than as the defendant. He elected, for example, not to retain any experts to rebut the reports and testimony of Banks's three expert witnesses — a defense measure that would not have been excluded by the Court's preclusion order.

The public also has a significant interest in the swift resolution of this case. Given the unique circumstances at issue, this...