Cheeks v. City of N.Y.
| Decision Date | 16 December 2014 |
| Docket Number | 10903, 21962/99 |
| Citation | 998 N.Y.S.2d 847 (Mem),123 A.D.3d 532,2014 N.Y. Slip Op. 08764 |
| Parties | Tatiana CHEEKS, Plaintiff–Respondent, v. The CITY OF NEW YORK, Defendant–Appellant. |
| Court | New York Supreme Court — Appellate Division |
Michael A. Cardozo, Corporation Counsel, New York (Marta Ross of counsel), for appellant.
Alexander J. Wulwick, New York, for respondent.
Judgment, Supreme Court, Bronx County (John A. Barone, J.), entered on or about December 22, 2011, upon a jury verdict, awarding plaintiff damages on her causes of action for false arrest and malicious prosecution, reversed, on the law, the facts and in the exercise of discretion, without costs, and the matter remanded for a new trial.
FRIEDMAN, J.P. and SWEENY, J. concur in a separate memorandum by FRIEDMAN, J.P.; KAPNICK, J. concurs in a separate memorandum; and ACOSTA and MANZANET–DANIELS, JJ. dissent in a memorandum by ACOSTA, J. as follows:
Plaintiff Tatiana Cheeks was the sole custodian and caregiver of her daughter Cha–Nell, who was born in healthy condition on February 16, 1998. Early in the morning of March 27, 1998, plaintiff found 5 ½–week-old Cha–Nell unresponsive and not breathing; the infant was taken to the hospital and pronounced dead on arrival. The cause of the little girl's death was not immediately clear—although the emergency room doctor remarked at the time that the “child presents as malnourished”—and an autopsy was performed. Two months later, on May 26, 1998, the New York City medical examiner's office issued its determination—based on extensive physical and chemical observation, measurement and analysis recorded in the 48–page autopsy report—that the infant had, indeed, died of malnutrition, and that the malnutrition was not due to any detectable defect in her digestive system.1 This conclusion has never been questioned, not even by plaintiff or the medical expert who testified on her behalf in this action.2
Based on the medical examiner's determinations, Detective Donald Faust of the New York City Police Department reopened the investigation of Cha–Nell's death, took plaintiff into custody and arrested her on suspicion of having caused her daughter's death through neglect of the infant's feeding. On May 29, 1998, plaintiff was arraigned on charges of criminally negligent homicide (Penal Law § 125.10 ) and reckless manslaughter (Penal Law § 125.15[1] ).3 On July 1, 1998, however, the charges against plaintiff were dropped. The reason for the district attorney's voluntary dismissal of the case does not appear in the record. Plaintiff subsequently commenced this action against the City of New York for false arrest and malicious prosecution.
As more fully discussed later in this opinion, the City's liability in this matter hinges on whether Detective Faust, when he arrested plaintiff without a warrant, had probable cause to believe that she had caused her daughter's fatal malnutrition through neglect. That is to say, the ultimate issue in the case is not whether plaintiff actually neglected her daughter but whether the detective reasonably concluded, based on the evidence available to him at the time of the arrest, that she probably had done so. Thus, it is not legally relevant that a factfinder, or a reviewing court, might be persuaded by a trial record created 13 years after the arrest that plaintiff was not, in fact, responsible for the infant's death. Rather, to prevail, plaintiff was required to prove that it had not been reasonable for the detective to infer, from the information available to him when the arrest was made in 1998, that the infant's death probably had been caused by her mother's neglect.
This tort action went to trial after the City's motion for summary judgment was denied as untimely under applicable procedural rules.4 Plaintiff, who had breast-fed her daughter, did not deny that she had been the baby's sole custodian and, to reiterate, her medical expert did not take issue with the medical examiner's conclusion that the baby had died of malnutrition and that the malnutrition had not been caused by any observed physical or chemical defect. Rather, the expert offered the theory that the baby could have starved to death in spite of diligent feeding due to the “failure to thrive” syndrome, in which, unbeknownst to the nursing mother, her ostensibly healthy baby fails, for undetermined reasons, to ingest sufficient breast milk to sustain life.
Detective Faust, for his part, testified that he had arrested plaintiff in reliance on the medical examiner's conclusions that the child had died of malnutrition and that there was no medical cause for the malnutrition. From those findings of the medical examiner (which, again, have never been disputed), the detective inferred that it was probable that the child's malnutrition had resulted from the neglect of her feeding by her caregiver (plaintiff), and that such neglect constituted a crime. In this regard, Detective Faust—who said that seeing Cha–Nell's body had made an “indelible” impression on him and had “impacted [him] in th[e] same manner” as “seeing the World Trade Center fall”—testified as follows:
Detective Faust concluded his testimony by stating that, once he had reopened the case as a homicide investigation, he identified plaintiff as the person responsible for Cha–Nell's death because plaintiff “had total custody and control of the child and was responsible for the feeding and nurturing of the child.” That point is undisputed.
Plaintiff presented no evidence to show that Detective Faust, when he decided to make the arrest in 1998, had any reason to be aware of the “failure to thrive” theory, which plaintiff's expert propounded at trial in 2011. Plaintiff's case against the City boiled down to the claim that, after Detective Faust received the official autopsy report concluding that the child had died of malnutrition for which the medical examiner was “unable to find a medical explanation” (as written in a note, dated May 7, 1998, included in the report), the detective —although a layman in medical matters—should have intuited the “failure to thrive” theory on his own.6 Based on that theory, plaintiff contended, Detective Faust should have credited plaintiff's uncorroborated self-exculpatory claims (which she repeated in her trial testimony) that she had diligently fed the baby and, until the morning she found her without breath or pulse, had not had any idea that her daughter was slowly starving to death.7
The jury returned a verdict for plaintiff, finding that there had not been probable cause for the arrest in spite of the detective's reliance on the medical examiner's undisputed conclusion that the infant had died of malnutrition. For reasons more fully discussed later in this writing, Justice Sweeny and I believe that this verdict is legally insupportable on the trial record, even if one excludes from consideration the medical examiner's conclusion, not only that the baby had died of malnutrition, but that the “manner of death” had been “parental neglect,” a statement that was redacted erroneously, but without objection by the City, from the autopsy report as received into evidence. Accordingly, Justice Sweeny and I believe that, on the instant appeal by the City, we should reverse the judgment for plaintiff, grant the City's motion for judgment notwithstanding the verdict and dismiss the complaint, and we disagree insofar as the full bench fails to do so. However, since a majority of the panel is not inclined to dismiss the complaint, Justice Sweeny and I concur with Justice Kapnick insofar as we are reversing the judgment and granting the City a new trial based on the court's error in failing to admit the unredacted autopsy report into evidence to cure the prejudice accruing to the City from an improper line of inquiry pursued by plaintiff's counsel, as more fully discussed toward the end of this writing.
Before turning to the legal analysis of the issues raised by this appeal, I believe it necessary to point out a number of mischaracterizations of the record and of the law in the dissenting opinion.
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