Pacheco v. City of N.Y.

• Decision Date: 21 March 2013
• Citation: 2013 N.Y. Slip Op. 01899,104 A.D.3d 548,961 N.Y.S.2d 408
• Parties: Carlos PACHECO, Plaintiff–Respondent, v. The CITY OF NEW YORK, et al., Defendants–Appellants, P.O. Lopez, etc., et al., Defendants.
• Court: New York Supreme Court — Appellate Division

104 A.D.3d 548
961 N.Y.S.2d 408
2013 N.Y. Slip Op. 01899

Carlos PACHECO, Plaintiff–Respondent,
v.
The CITY OF NEW YORK, et al., Defendants–Appellants,
P.O. Lopez, etc., et al., Defendants.

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

March 21, 2013.

Michael A. Cardozo, Corporation Counsel, New York (Ellen Ravitch of counsel), for appellants.

Burns & Harris, New York (Christopher J. Donadio of counsel), for respondent.

ANDRIAS, J.P., RENWICK, FREEDMAN, GISCHE, JJ.

[104 A.D.3d 548]Judgment, Supreme Court, Bronx County (Geoffrey D. Wright, J.), entered April 8, 2011, upon a jury verdict, awarding plaintiff the principal amount of $2,042,499, unanimously reversed[104 A.D.3d 549], on the law, without costs, and the complaint dismissed. Appeal from order, same court and Justice, entered June 11, 2012, which denied defendants-appellants' motion to set aside the verdict, unanimously dismissed, without costs, as subsumed in the appeal from the judgment. The Clerk is directed to enter judgment dismissing the complaint.

In this action, plaintiff sought damages for injuries he allegedly suffered when a police sergeant used a Taser “stun gun” to subdue him so that he could be transported

[961 N.Y.S.2d 409]

by ambulance to a hospital. Plaintiff claims, inter alia, that the use of the Taser constituted an assault and amounted to excessive force in violation of his rights under 42 USC § 1983.

The evidence adduced at trial disclosed that, in response to an emergency 911 call from plaintiff's girlfriend that he had suffered one or more seizures, two police officers, two emergency medical technicians, two paramedics, and several fire fighters arrived at plaintiff's apartment to aid him. After the EMTs examined plaintiff and informed him that he needed to be hospitalized, he became uncooperative. His girlfriend testified that this was the result of another seizure. The police officers testified and other evidence indicates that plaintiff refused to go to the hospital, became extremely violent and agitated, and attacked the personnel trying to help him. The officers further testified that, while kicking out at them, plaintiff broke a dresser in the room.

Thereafter, six or seven responders were needed to restrain plaintiff, handcuff him behind his back, and strap him across his lap and chest into an EMT transport chair. The officers testified that while strapped in the chair, plaintiff still kicked out at them, tried to stand, and bit one officer's arm...