N.M. v. City of New York

N.M. v City of New York (2019 NY Slip Op 02981) N.M. v City of New York 2019 NY Slip Op 02981 Decided on April 23, 2019 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 April 23, 2019 Friedman, J.P., Sweeny, Tom, Moulton, JJ. 9045 350326/12 [*1]N.M., an Infant by his Mother and Natural Guardian Carmen P., et al., Plaintiffs-Appellants, v The City of New York, et al., Defendants-Respondents. Alexander J. Wulwick, New York, for appellants. Zachary W. Carter, Corporation Counsel, New York (Mackenzie Fillow of counsel), for respondents. Order, Supreme Court, Bronx County (Howard H. Sherman, J.), entered on or about February 28, 2018, which, to the extent appealed from as limited by the briefs, granted defendants' motion for summary judgment dismissing the state and federal claims for assault, battery and excessive force, unanimously affirmed, without costs. The evidence shows that defendant police officers initially approached two individuals for a stop and inquiry regarding a suspected drug transaction in a known drug location. When the 17-year-old infant plaintiff (NM) began to curse and scream at the officers, as well as refuse to cooperate with their instructions, ultimately drawing the attention of a crowd, the police had probable cause to arrest NM for, at minimum, disorderly conduct, to which NM ultimately pled guilty. NM acknowledged that he resisted the officers' attempts to handcuff him, and that they were only able to handcuff him when an officer allegedly punched him in the face a second time. NM offered no competent proof in the form of expert testimony or otherwise to raise a factual issue as to whether the police force under the circumstances was excessive or that the alleged facial bruising NM incurred was due to unwarranted police conduct (see Wilson v City of New York, 147 AD3d 664 [1st Dept 2017]; see also Koeiman v City of New York, 36 AD3d 451 [1st Dept 2007], lv denied 8 NY3d 814 [2007]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: APRIL 23, 2019 CLERK