| Moore v City of New York |
| 2009 NY Slip Op 09440 [68 AD3d 946] |
| December 15, 2009 |
| Appellate Division, Second Department |
| Jennifer Moore et al., Appellants, v City of New York etal., Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Stephen J. McGrath andCheryl Payer of counsel), for respondents.
In an action, inter alia, to recover damages for civil rights violations pursuant to 42 USC§ 1983, the plaintiff appeals from a judgment of the Supreme Court, Kings County (Saitta,J.), entered July 22, 2008, which, upon a jury verdict, and upon the denial of the plaintiff'sapplication to set aside the verdict as contrary to the weight of the evidence pursuant to CPLR4404 (a), is in favor of the defendants and against her, in effect, dismissing the amendedcomplaint.
Ordered that the judgment is affirmed, with costs.
The plaintiff commenced this action, inter alia, to recover damages for civil rights violationspursuant to 42 USC § 1983. The action arose from the death of her son (hereinafter thedecedent), who was shot by the defendant James Moss, a detective for the New York City PoliceDepartment, following a standoff in which the decedent failed to drop the knife he wasbrandishing when ordered to do so by the police, and instead "charg[ed] at" the officers. The juryreturned a verdict finding that Moss was justified in using deadly force against the decedent. TheSupreme Court thereafter denied the plaintiff's application to set aside the verdict as contrary tothe weight of the evidence pursuant to CPLR 4404 (a), and judgment was entered on the verdictin favor of the defendants and against the plaintiff, in effect, dismissing the amended complaint.We affirm.
Claims that law enforcement personnel used excessive force in the course of an arrest areanalyzed under the Fourth Amendment and its standard of objective reasonableness (seeGraham v Connor, 490 US 386, 394-395 [1989]; Ostrander v State of New York,289 AD2d 463, 464 [2001]; Passino v State of New York, 260 AD2d 915, 916 [1999]).Based on a fair interpretation of the evidence, the jury determined that it was reasonable forMoss to have used deadly force against the decedent under the circumstances (see Ostranderv State of New York, 289 AD2d 463 [2001]; Passino v State of New York, 260AD2d at 916; Higgins v City of Oneonta, 208 AD2d 1067 [1994]; see also Roy vInhabitants of City of Lewiston, 42 F3d 691 [1994] [affirming the finding of the UnitedStates District Court that a police officer's use of deadly force was reasonable, where a claimantwas ordered to put down knives, but nonetheless advanced, flailing his arms as he continued tohold the knives, while the officers on the scene retreated back to a sharp downward incline, andthe claimant made a kicking-lunging motion toward those officers]).[*2]
We reject the plaintiff's contention that a new trial iswarranted because the court failed to remove a juror who closed his eyes on three occasions, andallegedly was sleeping. The court made a sufficient inquiry of the subject juror to ascertain thatthe juror had heard the testimony and, thus, was qualified to render a verdict. Based upon thatinquiry, as well as the court's own "close[ ]" observations of the juror, its determination to allowthe juror to continue to serve and render a verdict was a provident exercise of discretion(see CPLR 4106; see also People v Pulley, 290 AD2d 321, 321-322 [2002];People v Marks, 225 AD2d 1087 [1996]; People v Brown, 160 AD2d 172, 174[1990]).
The plaintiff's remaining contentions are either unpreserved for appellate review or withoutmerit. Rivera, J.P., Dillon, Miller and Roman, JJ., concur.