

Myers v City of New York (2020 NY Slip Op 00381)





Myers v City of New York


2020 NY Slip Op 00381


Decided on January 21, 2020


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on January 21, 2020

Manzanet-Daniels, J.P., Gesmer, Oing, Moulton, González, JJ.


10817 101341/11

[*1] Nathaniel Myers, Plaintiff-Respondent,
vThe City of New York, etc., et al., Defendants-Appellants, Police Officers John Doe(s)#'s 9th Precinct, Defendants.


James E. Johnson, Corporation Counsel, New York (Eva L. Jerome of counsel), for appellants.
Law Office of David A. Zelman, Brooklyn (Ephrem J. Wertenteil of counsel), for respondent.

Order, Supreme Court, New York County (Verna L. Saunders, J.), entered August 21, 2018, which, inter alia, denied the City defendants' motion for summary judgment dismissing plaintiff's causes of action alleging excessive force under federal and state law and for respondeat superior, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment dismissing the complaint.
Collateral estoppel barred plaintiff's claim that an officer used excessive force by pushing him in a stairwell. Defendants demonstrated that the same issue existed and was decided against plaintiff in the criminal action, and plaintiff failed to show that he lacked a full and fair opportunity to litigate that issue in the criminal action (see Kaufman v Eli Lilly & Co., 65 NY2d 449, 455 [1985]; Grayes v DiStasio, 166 AD2d 261, 262-263 [1st Dept 1990]). The remaining allegations of excessive force, and the claim of respondeat superior, should have been dismissed since there was no competent proof to show that the alleged excessive actions by the police were unreasonable under the circumstances or caused plaintiff compensable injury (see Graham v Connor, 490 US 386, 396-397 [1989]; Davidson v City of New York, 155 AD3d 544 [1st Dept 2017]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 21, 2020
CLERK


