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Garcia v. O'Keefe9/9/2004
This opinion is uncorrected and will not be published in the printed Official Reports.
Procedural History
This is a wrongful death and personal injury action brought against New York City and New York City Police Officer Michael O'Keefe, by the mother and the estate of Jose L. Garcia to recover for his shooting death. The action was premised on theories of improper stop/false arrest, excessive force and a violation of Mr. Garcia's Civil Rights (42 USC 1983). The jury returned a verdict for plaintiffs on the false arrest claim, awarding Mrs. Garcia past and future pecuniary damages in the amount of $67,200 and $88,400, respectively, and awarding punitive damages in the amount of $15,000. Verdicts for defendants were returned on the wrongful death and Civil Rights claims.
The defendants now move to set aside the verdict against them, arguing that: 1) false arrest was not specifically asserted in the notice of claim; 2) the amount of the pecuniary award was excessive in regard to the evidence produced; 3) the pecuniary loss was not proximately caused by the improper stop and seizure, since Mr. Garcia's conduct subsequent to his stop and seizure provided reasonable cause for his arrest and ultimate death during that arrest; and 4) the punitive damages award was against the weight of the evidence.
Plaintiffs oppose defendants' motion and move: 1) to set aside the verdict which failed to award any damages for pain and suffering; 2) to either award $500,000 for pain and suffering or, alternatively, order a new trial on these damages; 3) to set aside the jury verdict on the Civil Rights (42 U.S.C. 1983) claim; 4) to hold a hearing awarding legal fees on the Civil Rights cause of action; 5) to award interest on the pecuniary loss from the date of the incident to the date of verdict; 6) to increase the punitive damages award to $500,000 or, alternatively, to set the matter down for a new trial on this issue. The motions are consolidated herein for unitary disposition.
On September 30, 1992, plaintiffs filed a Notice of Claim. Paragraph 2 of the Notice stated:
2. The nature of the claim:
A. Action for personal injuries and conscious pain and suffering sustained by Jose L. Garcia, as a result of the negligence, carelessness and recklessness of the City of New York, the New York City Police Department, by its agents, servants and/or employees. Also, violation of Jose L. Garcia Constitutional Civil Rights, loss of services, assault, and battery.
B. Action for wrongful death of Jose L. Garcia, as a result of the negligence, carelessness and recklessness of the City of New York, the New York City Police Department, by its agents, servants and/or employees.
3. The time when, the place where and the manner in which the claim arose:
On or about the 3rd day of July, 1992 at approximately 9:45 p.m., while Claimant was legally in front of the premises and forced into the vestibule and lobby area at 505 West 162nd Street, New York, New York[,] he was assaulted and then shot by Police Officer Michael O'Keefe, without provocation, while that Officer was on duty on 162nd Street.
At the time[,] Officer O'Keefe was acting as an agent, servant and/or employee of the City of New York and the New York City Police Department.
This occurrence took place as a result of negligence, carelessness and recklessness of Police Officer Michael O'Keefe, the City of New York and the New York City Police Department in causing, permitting and allowing the aforesaid occurrence to take place; in hiring personnel with a propensity towards violence and viciousness, more particularly Police Office
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