Brown v. City of N.Y.

• Decision Date: 24 March 2021
• Docket Number: 2018–00937,Index No. 24387/10
• Citation: 192 A.D.3d 963,146 N.Y.S.3d 160
• Parties: Danna BROWN, respondent, v. CITY OF NEW YORK, et al., appellants, et al., defendants.
• Court: New York Supreme Court — Appellate Division

192 A.D.3d 963
146 N.Y.S.3d 160

Danna BROWN, respondent,
v.
CITY OF NEW YORK, et al., appellants, et al., defendants.

2018–00937
Index No. 24387/10

Supreme Court, Appellate Division, Second Department, New York.

Argued—December 10, 2020
March 24, 2021

146 N.Y.S.3d 162

James E. Johnson, Corporation Counsel, New York, N.Y. (Deborah A. Brenner, Max O. McCann, and Devin Slack of counsel), for appellants.

The Cochran Firm (Norman A. Olch, New York, NY, of counsel), for respondent.

WILLIAM F. MASTRO, A.P.J., REINALDO E. RIVERA, ROBERT J. MILLER, COLLEEN D. DUFFY, JJ.

146 N.Y.S.3d 163

DECISION & ORDER

In an action, inter alia, to recover damages for personal injuries, the defendants City of New York and New York City Police Department appeal from an order of the Supreme Court, Kings County (Reginald A. Boddie, J.), dated December 1, 2017. The order, insofar as appealed from, denied those branches of the motion of the defendants City of New York and New York City Police Department which were pursuant to CPLR 3211 to dismiss the causes of action to recover damages for civil rights violations pursuant to 42 USC § 1983 and alleging negligence, assault and battery, excessive force, false arrest, and false imprisonment insofar as asserted against the defendant New York City Police Department, pursuant to CPLR 3211(a)(7) to dismiss the cause of action to recover damages for civil rights violations pursuant to 42 USC § 1983 insofar as asserted against the defendant City of New York, and for summary judgment dismissing the causes of action alleging negligence, assault and battery, excessive force, false arrest, and false imprisonment insofar as asserted against the defendant City of New York.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the motion of the defendants City of New York and New York City Police Department which were pursuant to CPLR 3211 to dismiss the causes of action to recover damages for civil rights violations pursuant to 42 USC § 1983 and alleging negligence, assault and battery, excessive force, false arrest, and false imprisonment insofar as asserted against the defendant New York City Police Department, pursuant to CPLR 3211(a)(7) to dismiss the cause of action to recover damages for civil rights violations pursuant to 42 USC § 1983 insofar as asserted against the defendant City of New York, and for summary judgment dismissing the causes of action alleging negligence, assault and battery, excessive force, false arrest, and false imprisonment insofar as asserted against the defendant City of New York are granted.

In October 2010, the plaintiff commenced this action against, among others, the City of New York and the New York City Police Department (hereinafter the NYPD, and together with the City, the defendants) to recover damages, inter alia, for personal injuries the plaintiff contends she incurred in April 2010 when she was shot and later arrested by a member of the NYPD during an encounter with the police. As is relevant to this appeal, the plaintiff asserted causes of action alleging, inter alia, negligence, assault and battery, excessive force, false arrest, false imprisonment, and civil rights violations under 42 USC § 1983.

According to both the City and the plaintiff, in April 2010, police officers with the NYPD responded to a 911 emergency call reporting that a violent emotionally disturbed person was breaking things at an apartment in a building in Brooklyn and that the female caller had locked herself in the bathroom. After arriving at the building's sixth floor hallway, the officers observed the plaintiff, who had been visiting the residents of the apartment, in the midst of a psychotic episode. The plaintiff was standing in the open doorway of the apartment, in close proximity to the building's elevator, screaming and holding a kitchen knife in her right hand. The officers observed her raise the knife over her head and begin to make stabbing motions. The plaintiff did not respond to the officers' instructions to her in any way, even

146 N.Y.S.3d 164

when an officer twice sprayed her in the face with pepper spray. Thereafter, the plaintiff advanced towards the officers and one of the officers shot the plaintiff once, after which she fell, the knife was recovered, and she was arrested and transported to a hospital for surgery. The plaintiff was thereafter indicted for menacing a police officer ( Penal Law § 120.18 ), criminal possession of a weapon in the fourth degree ( Penal Law § 265.01[2] ), and attempted assault in the third degree ( Penal Law §§ 110.00, 120.00[1] ). At the conclusion of the criminal trial, the plaintiff, a 31–year–old woman with a...