Lopez v. City of N.Y.

• Decision Date: 30 March 2021
• Docket Number: Case No. 2020-00966, 2020-02607,13073-13073A,Index No. 7100/07
• Citation: 192 A.D.3d 634,146 N.Y.S.3d 81
• Parties: Raoul LOPEZ, Plaintiff–Respondent, v. The CITY OF NEW YORK, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

192 A.D.3d 634

146 N.Y.S.3d 81

Raoul LOPEZ, Plaintiff–Respondent,

v.The CITY OF NEW YORK, Defendant–Appellant.

13073-13073A

Index No. 7100/07

Case No. 2020-00966, 2020-02607

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

ENTERED: March 30, 2021

James E. Johnson, Corporation Counsel, New York (John Moore of counsel), for appellant.

Brett H. Klein, PLLC, New York (Brett H. Klein of counsel), for respondent.

Renwick, J.P., Kern, Mazzarelli, Oing, JJ.

Judgment, Supreme Court, Bronx County (Fernando Tapia, J.), entered December 5, 2019, upon a jury verdict awarding plaintiff $1.5 million for past pain and suffering, $5 million for future medical expenses (for 35 years), and $4.5 million for future pain and suffering (for 35 years), and appeal therefrom bringing up for review an amended order, same court and Justice, entered on or about May 4, 2020, which denied defendant's motion to vacate the judgment and dismiss the complaint or set aside the verdict and order a new trial on liability and damages, unanimously modified, on the facts, defendant's motion granted to the extent of setting aside the verdict on damages for future medical expenses, and to order a new trial on damages for future medical expenses, unless plaintiff stipulates within 30 days of entry of this order to reduce the award for future medical expenses to $4,289,606.09, and otherwise affirmed, without costs. Appeal from amended order, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Defendant City appeals from the denial of its motion to set aside the verdict that held it responsible for a police officer's use of excessive force in shooting plaintiff in the neck during a traffic stop, and assessed damages. The City's principle argument on liability is that the verdict was based on insufficient evidence and that it was against the weight of the evidence. The jury heard two dramatically different versions of the incident. According to plaintiff, he was stopped by two police officers in an unmarked car while he was driving his car shortly after purchasing two bags of heroin on Marcy Place and Grand Concourse. He was pulled over after he made a right turn at a stop sign onto the local lane of the Grand Concourse, after coming to a full stop. Plaintiff testified that officer Philippe Blanchard then approached the driver's side of his car with his gun drawn, and that Blanchard's partner, Zino Konstantinidis, approached the passenger side. Blanchard directed plaintiff to turn the car off and put his hands up, and plaintiff complied. Blanchard then pointed the gun to the back of plaintiff's head, while yelling "let me see your hands, where's the s—t at?" and "give it to me, give it to me." Plaintiff reached for the heroin, which was in his lap, and handed one bag to Blanchard, but fumbled with and dropped the other bag on the floor. Blanchard directed plaintiff to "pick it up," and as plaintiff reached down to do so, Blanchard shot him. Upon realizing he had been shot, which felt like "a pinch," plaintiff started the car and tried to drive over the median separating the local lane of the Grand Concourse itself, but his body "slumped down" and the car crashed into a planter on the median. Plaintiff stipulated that, as a result of the incident, Konstantinidis "was significantly injured," although the stipulation had no specific information about the nature of the injury or how the officer sustained it. Plaintiff also presented a witness, a home health aide who was working in an apartment overlooking the Grand Concourse and 169 ^th Street, who testified that she looked out a window and saw a car "slowly rolling" across the local lane of the Grand Concourse, with a policeman on foot on either side of the car, either trying to stop it or get in, before the car struck a planter and stopped.

Blanchard and Konstantinidis testified that they were surveilling the area in an unmarked vehicle near Marcy Place and the Grand Concourse, a drug prone area, when they happened to notice plaintiff's car roll through a stop sign. The officers pulled plaintiff over at the local lane of the Grand Concourse and 169th Street. Blanchard approached the driver's side of plaintiff's car, while Konstantinidis approached the passenger's side. Plaintiff's driver's side window was partially opened. Blanchard had to ask plaintiff to turn off the car three times before plaintiff complied. Plaintiff took the key out of the ignition and put his right hand down at his side. Blanchard told him to keep both hands visible, and after asking three times, began yelling "show me your hands." When Konstantinidis heard Blanchard shouting at plaintiff, he tried opening the passenger side door, but it was locked, so he ran around the front of the car to the driver's side. As he did so, plaintiff restarted the car. When Konstantinidis got to the driver's side, Blanchard was struggling with plaintiff while trying to turn the steering wheel toward the curb to prevent the car from merging into traffic. At some point, he released the steering wheel with his right hand, and grabbed his gun with it. Meanwhile, Konstantinidis went under Blanchard's left arm, and reached his right arm through the driver's side window to grab the keys and turn off the engine. Plaintiff turned the steering wheel, locking Konstantinidis's arm in place, and proceeded into traffic, dragging the officer. Upon seeing his partner being dragged, Blanchard let go of the steering wheel with his left hand, stuck his right hand with the gun through the window, and fired a shot as he ran alongside the car, striking plaintiff in the neck. Blanchard, who had never before fired his weapon while on duty, thought it would be impossible to pull Konstantinidis away from the moving vehicle, and believed Konstantinidis would be killed or seriously injured if he did not act. After the shot, the car proceeded across the local lane of the Grand Concourse, toward the median. It jumped a small concrete barrier and the curb, and hit a large planter, before Blanchard steered it toward a tree. Konstantinidis's arm dislodged at some point before the car hit the planter, and the officer somehow wound up on the passenger side of the car. He surmised that he had walked over while still "disoriented."

Plaintiff's expert medical witness, Dr. William Kulak, testified that the bullet that struck plaintiff did not sever plaintiff's spinal cord but rather caused a contusion to it. According to Dr. Kulak, a contusion leads to soft tissue swelling known as edema, which squeezes the nerves and impedes their function. However, he explained that it "can take a few seconds" and even up to a minute before nerve function actually stops, during which time a person can still have use of their extremities. The City's expert, Dr. Alan Bender, testified that, if plaintiff had suffered the injuries as described by Dr. Kulak, plaintiff "probably" would not have been able to drive immediately after being shot. However, he agreed with Dr. Kulak that a bullet entering the neck causing a spinal cord contusion could result in a delay in the full effects of the injury.

In conducting a sufficiency of the evidence review, we are required to consider all of the evidence placed before the jury, and determine whether "a valid line of reasoning and permissible inferences could lead rational persons to find" in the way the jury did ( Mazella v. Beals, 27 N.Y.3d 694, 709, 37 N.Y.S.3d 46, 57 N.E.3d 1083 [2016] ). We are also required to consider the evidence in a light most favorable to the nonmoving party, plaintiff here, affording him every available inference that can be drawn from the evidence ( Szczerbiak v. Pilat, 90 N.Y.2d 553, 556, 664 N.Y.S.2d 252, 686 N.E.2d 1346 [1997] ). The City contends that, even if we were to grant plaintiff such inferences, there is no valid line of reasoning that could have led to a verdict in favor of plaintiff. It argues that because Lopez received a paralyzing shot to the neck, it would have been impossible for him to have driven the car away from the scene after being shot. Thus, the City maintains that the officers' version of events, which involved plaintiff being shot because he was driving the car, is the only one that has logical weight. The City further points to the stipulation about Konstantinidis's injury, and asserts that under Lopez's version of the incident it would not have been possible for the officer to hurt himself "significantly."

We find that the evidence presented by plaintiff was sufficient to support his theory of liability. First, the import of Dr. Kulak's testimony is that, even though plaintiff became paralyzed by the bullet, the paralysis did not necessarily happen immediately. It was scientifically possible that plaintiff retained his mobility during the time that the contusion to his spinal cord evolved into an edema that made it impossible for him to move his arms and legs. An interval of even seconds, which Dr. Kulak testified was possible, was sufficient for plaintiff to place his car in gear and operate it. Further, the home health aide who witnessed the incident testified that both officers were on either side of the car and trying to stop it or get in. This directly contradicted Konstantinidis's testimony that only after the car hit the planter did he somehow move to the passenger side of the car. Further, under the circumstances, the jury could have reasonably imagined a scenario where Konstantinidis hurt himself trying to accomplish either of those things.

Of course, the analysis does not end there, since the City contends that, even if plaintiff presented sufficient evidence to support the jury's verdict on liability, the verdict was against the weight of the evidence. Under that review, we must consider whether "the evidence so preponderated in favor of the [City] that the verdict could not have been reached on any fair interpretation of the evidence" ( Lolik v. Big V...