| Linson v City of New York |
| 2012 NY Slip Op 06193 [98 AD3d 1002] |
| September 19, 2012 |
| Appellate Division, Second Department |
| Myrlene Linson, Appellant, v City of New York,Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Larry A. Sonnenshein andJulian L. Kalkstein of counsel), for respondent.
In an action to recover damages for assault, the plaintiff appeals from an order of theSupreme Court, Kings County (Ruchelsman, J.), dated February 15, 2011, which granted thedefendant's motion pursuant to CPLR 4404 to set aside a jury verdict in favor of the plaintiff andfor judgment as a matter of law.
Ordered that the order is affirmed, with costs.
A motion pursuant to CPLR 4404 (a) to set aside a jury verdict and for judgment as a matterof law will be granted where there is no valid line of reasoning and permissible inferences whichcould possibly lead rational persons to the conclusions reached by the jury on the basis of theevidence presented at trial (see Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]; Courtney v Port Auth. of N.Y. & N.J.,45 AD3d 801, 802 [2007]; Desbonnet v Desbonnet, 34 AD3d 625, 626 [2006]).
Here, the plaintiff's apartment was searched by officers of the New York City PoliceDepartment, pursuant to a lawful warrant. Pursuant to the warrant, the officers were searching fortwo young male suspects, certain narcotics, and related paraphernalia. Eventually the police cameto realize that none of the occupants of the apartment, including the 55-year-old female plaintiff,was a suspect described in the warrant, and that the apartment did not contain narcotics or relatedparaphernalia. According to the plaintiff, when the police first entered the apartment, one of theofficers pointed a weapon at her. At trial, she was unable to testify as to how long he pointed theweapon at her, but testified that it "seemed like it was forever." Police officers, on the other hand,testified that officers assigned to the Emergency Services Unit (hereinafter ESU), who were thefirst officers to enter the plaintiff's apartment, were the only officers with their guns drawn, andthat, once the remaining officers were inside the apartment, no one pointed a gun at the plaintiff.
The sole cause of action presented to the jury was one to recover damages for assault, basedon the officer's act of pointing a weapon at the plaintiff. The jury found the defendant liable forassault, and awarded damages to the plaintiff, finding that she developed posttraumatic stressdisorder as a result of the incident.
A municipality may be vicariously liable for a common-law assault, premised upon anassault by a police officer, under a theory of respondeat superior (see Eckardt v City of White Plains, 87AD3d 1049, 1051 [2011]; Merritt v Village of Mamaroneck, 233 AD2d 303, 304[1996]). "[A] warrant [*2]to search for contraband founded onprobable cause implicitly carries with it the limited authority to detain the occupants of thepremises while a proper search is conducted" (Michigan v Summers, 452 US 692, 705[1981]). "[A]uthorization to detain an occupant of the place to be searched is the authority to usereasonable force to effectuate the detention" (Muehler v Mena, 544 US 93, 98-99 [2005];see Graham v Connor, 490 US 386, 396 [1989]). Therefore, an officer executing a searchwarrant is privileged to use reasonable force to effectuate the detention of the occupants of theplace to be searched (see Graham v Connor, 490 US at 394-395; cf. Moore v City of New York, 68AD3d 946, 947 [2009]; Eckardt v City of White Plains, 87 AD3d at 1052). Thereasonableness of the use of force by police should be "judged from the perspective of areasonable officer on the scene, rather than with the 20/20 vision of hindsight" (Graham vConnor, 490 US at 396; see Riverav City of New York, 40 AD3d 334, 341 [2007]).
Here, viewing the trial evidence in the light most favorable to the plaintiff, the ESU officerwho pointed his weapon at her did so for only as long as it took the ESU to secure the apartmentby ensuring that there were no immediate threats in the apartment to the safety of any officer. Assoon as the apartment was found to be secure, the officer stopped pointing his weapon at theplaintiff. Contrary to the plaintiff's contention, there was insufficient evidence that he continuedto point his weapon at her after it was determined that she was neither a suspect listed in thewarrant nor a threat to the officers (cf. Baird v Renbarger, 576 F3d 340, 345 [2009];Holland ex rel. Overdorff v Harrington, 268 F3d 1179, 1193 [2001], cert denied535 US 1056 [2002]). Under these circumstances, we conclude that no valid line of reasoningand permissible inferences could possibly lead rational persons to conclude that the officer's actwas objectively unreasonable or, consequently, that it constituted a common-law assault (seeLos Angeles County v Rettele, 550 US 609 [2007]; Muehler v Mena, 544 US 93[2005]; Michigan v Summers, 452 US 692 [1981]; cf. Eckardt v City of WhitePlains, 87 AD3d at 1052; Moore v City of New York, 68 AD3d at 947).Accordingly, the Supreme Court properly granted the defendant's motion pursuant to CPLR 4404(a) to set aside the jury verdict in favor of the plaintiff and for judgment as a matter of law.Angiolillo, J.P., Eng, Lott and Austin, JJ., concur.