Santos v. City of New York

• Decision Date: 15 December 1987
• Citation: 522 N.Y.S.2d 538,135 A.D.2d 426
• Parties: Nereida SANTOS, etc., Plaintiff-Respondent, v. The CITY OF NEW YORK, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 538

522 N.Y.S.2d 538

135 A.D.2d 426

Nereida SANTOS, etc., Plaintiff-Respondent, v. The CITY OF NEW YORK, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

Dec. 15, 1987.

R.L. Hoffer, P. Hoffer, New York City, for plaintiff-respondent.

F.F. Caputo, V. Gres, New York City, for defendant-appellant.

Before MURPHY, P.J., and ROSS, ASCH and SMITH, JJ.

MEMORANDUM DECISION.

Judgment of the Supreme Court, Bronx County (Edward Provenzano, J.), entered August 18, 1986, which, after a jury trial on liability (Provenzano, J.) and a jury trial on damages (Hansel McGee, J.), awarded judgment in favor of plaintiff, as Administratrix of the Estate of Guillermo Santos, in the amount of $295,000, is reversed, on the law, and the motion by defendant for an order dismissing the complaint for failure to establish a prima facie case granted, without costs or disbursements.

On August 29, 1975, plaintiff's decedent, Guillermo Santos, had been in a car with his brother, Carlos. While his brother was driving, he jumped out of the car, started a fight with passers-by, then jumped in the auto and drove off.

At about 6:00 p.m. thereafter, he came speeding down Third Avenue, in the Bronx, nearly running down two off-duty police officers, Michael Goodwin and Osiris Maldonado. The officers jumped into Goodwin's car and pursued Santos south on Third Avenue. Santos made a sudden U-turn and began driving north in the southbound lane, driving up on the sidewalk, striking a pedestrian, and finally coming to a stop in a parking lot after crashing through the lot's fence.

Santos got out of the automobile and ran, chased by Goodwin, on foot, who had his gun out. Goodwin identified himself as a police officer and told the decedent to stop. Santos had first gotten down on his knees but then continued running. As Goodwin continued the chase, he heard someone yell "he's got a gun". Other officers were also chasing Santos and Officers Patrick O'Sullivan and Dennis Sullivan passed Goodwin and apprehended Santos. After a struggle, he broke free and ran toward Goodwin, striking him twice in the head and grabbing Goodwin's off-duty revolver, which Goodwin was still holding.

O'Sullivan and Sullivan, together with Goodwin, struggled with Santos to break the decedent's hold on the weapon. While one of the officers turned Santos around, and with Santos' hand still on the gun, it discharged. The bullet entered decedent's back, exited his chest and wounded Officer O'Sullivan. Santos died in a matter of minutes and this action for wrongful death ensued.

Plaintiff's case consisted, as to the circumstances of the shooting, in the reading of excerpts from the Examinations Before Trial of four of the officers (three of whom, including Goodwin, were available and, in fact, testified at trial for defendant).

Thereafter, plaintiff had admitted into evidence certain exhibits, including Police Department Interim Order 118, which involved only the circumstances under which an officer may discharge his weapon and did not set forth the circumstances under which an officer may draw the weapon from his holster. Additionally, plaintiff presented expert testimony. Plaintiff's pathologist and forensic pathologist, Dr. Natarajan, testified, in reference to the deceased's autopsy report, that the cause of death was a single gunshot wound to the left back, lungs, aorta and bilateral hemothorax.

The Medical Examiner's laboratory report established that Santos tested negative for narcotics and drugs of abuse, including LSD (although the decedent's brother, Carlos, in a medical history in the autopsy report, indicated that decedent had a history of drug abuse and that he had told Carlos he had taken LSD the day of the incident).

Dr. Natarajan testified that the Medical Examiner's tests would not reveal whether the deceased was intoxicated from inhalation of toxic fumes. Further, the doctor concluded from the autopsy report that the decedent's wound was not a contact or close-range gunshot wound since there was no evidence of gunpowder burns around the wound. Although she conceded clothing would have something to do with the amount of powder present on the deceased's skin, she had not examined the deceased's clothing. She testified that decedent's actions, while possibly drug-related and possibly not drug-related, were consistent with an acute psychotic episode.

Jose Santos, another of decedent's brothers, testified that the decedent had worked with Red Devil paint remover the day he was shot. In this regard, Dr. Jesse Bidanset, a pharmaceutical science professor, toxicologist for the Rockland County Medical Examiner and general consultant, testified that the Red Devil paint remover used by the deceased contained, in 1975, toxic chemicals which could have triggered a psychotic episode. On cross-examination he added that LSD, taken prior in time so as not to be revealed in the Medical Examiner's tests, could cause similar erratic behavior in "flashbacks". Plaintiff testified that the deceased neither owned a gun nor used drugs.

James M. Sharpe, a witness called by plaintiff, identified himself as Director of Operations for Wells Fargo Armored Division for the past six years. He testified he had been a patrolman "out on the street" in the City of New York for 13 years and went up in rank to sergeant, then lieutenant, finally being promoted to captain. He testified at length about his supervisory experience and that he had participated in writing the rules and regulations of the Police Department. After detailing this seemingly impressive background, in response to a hypothetical question involving the circumstances under which Santos was shot, he gave his opinion that Officer Goodwin was not using proper procedure in approaching the decedent with his weapon drawn.

Since Sharpe's testimony was actually contrary to Police Department procedures, defendant City did not close its cross-examination but asked that the witness be available for recall later. Toward the end of the trial, it attempted to recall the witness but was unable to do so, even with the aid of a subpoena.

The City had discovered that Sharpe had never worked for the Police Department of the City of New York as a captain or even a patrolman. In addition, although he stated he was director of operations for Wells Fargo, in reality Sharpe was a driver for that company.

In view of the "very good impression" Sharpe made as a witness, his extensive testimony, and the fact that his was the only testimony in the case by any individual that Officer Goodwin breached the regulations in having his gun out, the City's attorney, who had initially sought to have Sharpe's testimony stricken, immediately withdrew that motion, since he did not believe the jury would be able to disregard such extensive and confident testimony. Defense counsel sought to introduce witnesses to show that Sharpe was both a fraud and incompetent to testify as an expert on police procedures or, in the alternative, sought a mistrial.

Plaintiff moved to strike his own witness's testimony and the trial court granted that motion. Prior to summations, it informed the jury that Sharpe's testimony had been stricken and that they...