Smith v. The City of New York et al

Filing 111

MEMORANDUM AND ORDER denying 53 Motion for Summary Judgment; denying 58 Motion for Summary Judgment; denying 68 Motion for Summary Judgment. The motions for summary judgment (ECF Nos. 53, 58, 68) are denied. The parties shall confer and advise the Court withinthirty days whether they wish to engage in further settlement negotiations or schedule trial. (As further set forth in this Order) (Signed by Judge Naomi Reice Buchwald on 8/4/2015) (kl)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------------X
ANDRE SMITH,
Plaintiff,
– against –

MEMORANDUM AND ORDER

CITY OF NEW YORK, P.O. HANA KURIAN, and
P.O. MIGUEL LAGARA,

12 Civ. 4922 (NRB)

Defendants.
----------------------------------------CITY OF NEW YORK, P.O. HANA KURIAN, and
P.O. MIGUEL LAGARA,
Third-Party Plaintiffs,
- against –
ST. BARNABAS HOSPITAL and TRANSCARE NEW
YORK, INC. d/b/a METROCARE,
Third-Party Defendants.
----------------------------------------X
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE
I.

INTRODUCTION
Plaintiff Andre Smith developed quadriplegia1 following an

encounter with New York City police officers.

In this action,

he sues New York City and the two officers (collectively, the
“City”) for damages on alternative theories of intentional and
negligent conduct.

1

The City, in turn, sues the third-party

The record sometimes refers to Smith’s condition as quadriplegia (paralysis
of all four limbs) and sometimes as quadriparesis (weakening of all four
limbs).
The distinction is immaterial to this motion, and we refer to
Smith’s
condition
as
quadriplegia
or
paralysis
throughout,
without
intimating any view on Smith’s actual medical status.

defendants (collectively, “St. Barnabas”) for negligence on the
part

of

transported

the

emergency

Smith

from

medical

the

technicians

scene

of

the

(EMTs)

incident

to

who
St.

Barnabas Hospital.2
Pending are two motions for summary judgment.

The City

moves for summary judgment on Smith’s negligence claim (ECF No.
53) on the grounds that the facts support only a finding of
intentional

misconduct

or

a

finding

of

no

liability.

St.

Barnabas moves for summary judgment against the City (ECF No.
58, re-filed as ECF No. 68) on the grounds that the EMTs acted
in

accordance

negligence

on

with
their

proper
part

medical
could

practice

not

have

and
caused

that

any

Smith’s

paralysis.
We deny both motions.

Sufficient record evidence supports

(1) Smith’s alternative theory that the officers were negligent
in deciding to handcuff Smith, (2) the City’s theory that the
EMTs failed to immobilize Smith’s neck during transport because
they performed an inadequate evaluation of Smith, and (3) the
City’s theory that the EMTs’ failure to immobilize Smith’s neck
caused or aggravated Smith’s condition.

2

Smith has not sued St. Barnabas directly for medical malpractice and no
party has sued the individual EMTs.

2

II. THE CITY’S MOTION
A. The Police Incident
At the threshold, we must discuss the set of facts upon
which we rely in evaluating a summary judgment motion.

The

City maintains that we must accept the facts in the light most
favorable to Smith (the non-movant), which, according to the
City,

means

accepting

the

facts

that

best

support

Smith’s

primary claim that the officers intentionally dropped Smith on
his

head.

We

plaintiff’s

disagree.

alternative

judgment,

we

must

favorable

to

sustaining

When

or

consider

a

defendant

inconsistent
the

the

record

particular

subject of the summary judgment motion.

challenges

claim
in

at

the

claim

summary

light

that

a

is

most
the

In this instance, we

rely primarily upon the officers’ own version of events, which,
according to Smith, best supports Smith’s negligence claim.
Police
apartment

Officers
at

dawn

Kurian
on

and

February

Lagara
3,

arrived

2012,

in

at

Smith’s

response

to

complaints that a naked man at Smith’s address was banging on
doors.

See Defs.’ Stmt. Pursuant to Loc. Civ. R. 56.1 (“City

56.1”) ¶¶ 31, 33, ECF No. 56.

When the officers arrived at

Smith’s apartment, Smith was naked and emotionally disturbed,
with

his

head

in

a

hot

oven.

See

Dep.

of

Miguel

Lagara

(“Lagara Dep.”) 120:19–20, 126:11–18, 161:6–14, Decl. of Derek
S. Sells in Opp. to Defs.’ Mot. for Partial Summ. J. (“Sells

3

Decl.”), Ex. 5, ECF No. 80; Dep. of Hana Kurian (“Kurian Dep.”)
237:22–24, Sells Decl., Ex. 3.
away

from

the

oven,

Smith

Once the officers drew Smith

followed

the

officers

unsteadily

towards the hallway, cursing loudly, and waving his genitals
towards the officers.

See Lagara Dep. 131–135; Kurian Dep.

256:18–258:10.
Despite Smith’s emotional disturbance, the officers did
not call for a supervisor or a specialized unit trained to deal
with emotionally disturbed persons.3

See Kurian Dep. 260:18–25.

The officers instead decided to handcuff plaintiff.

See City

56.1

to

have

Kurian

Dep.

¶ 38.

committed

a

271:25–272:4.

The
crime.

officers
See

did
Lagara

not

consider

Dep.

Smith

145:5–16;

Instead, they wished to restrain Smith in order

to have him evaluated at a hospital.

See Lagara Dep. 145:13–

16.
During the handcuffing process, Smith fell and struck part
of his head.

See Pls’. 56.1 Counter Stmt. ¶ 25, ECF No. 82;

Defs.’ Response to Pls.’ Stmt. of Additional Facts ¶ 25, ECF
No. 91.

Smith maintains that this trauma, combined with pre-

3

Kurian has explained that the officers did not call for assistance because
of the commotion in the background. See Kurian Dep. 261:16–262:10. If the
officers had turned on their radio, then other nearby officers would have
heard the noise and converged on Smith’s apartment, thus aggravating the
situation. See id. Under the circumstances, the officers preferred to wait
for quiet before calling for support.
See id.
Smith disputes the
reasonableness of this approach.

4

existing

factors,

caused

his

quadriplegia.

See

infra

(discussing Smith’s medical history).
B. Police Procedures4
The NYPD Police Patrol Guide sets forth procedures for
dealing with an emotionally disturbed person.

See Patrol Guide

§ 216-05 (eff. Sept. 28, 2007), Sells Decl., Ex. 9.

At the

outset,

If

the

disturbed

person

physical
“[t]ake

officer

injury

presents
to

reasonable

behavior.”

should

assess
an

the

situation.

immediate

himself

or

measures

others,

to

threat
the

terminate

Id. § 216-05 ¶ 1(a)(1).

or

of

the

serious

officer

should

prevent

such

The officer may also take

the person into custody if he is unarmed, non-violent, and
willing to leave voluntarily.
Unless

the

person

Id. ¶ 1(b)(1).

presents

an

immediate

threat

or

is

willing to leave, the officer should “[a]ttempt to isolate and
contain the [person] while maintaining a zone of safety until
arrival

of

patrol

supervisor

and

Emergency

Services

Unit

personnel,” and should “not attempt to take [the person] into
custody without the specific direction of a supervisor.”
4

Id.

Although the NYPD Patrol Guide speaks for itself, our understanding of it
is informed by the opinion of Smith’s expert, Walter Signorelli. See Mem.
of Walter Signorelli (Apr. 26, 2014), Sells Decl., Ex. 10. The City argues
that we should discount Signorelli’s report as unsworn, unqualified, and
beyond the proper scope of expert testimony.
At this stage, Signorelli
appears to be qualified as an expert.
Although the City may file
appropriate pre-trial motions against Signorelli’s testimony, we will not
ignore his opinions at this stage, now that he has cured his earlier failure
to swear to his opinion. See Decl. of Derek S. Sells in Supp. of Pl.’s SurReply in Opp. to Defs.’ Summ. J. Reply, Ex. 22, ECF No. 102.

5

¶ 1(c)(1), (2).

This “zone of safety” is a buffer zone between

the disturbed person and officers, usually of at least 20 feet.
See id. (definition of “zone of safety”).
C. Discussion
Smith argues that the officers were negligent in that they
attempted to handcuff Smith themselves instead of calling for a
supervisor or ESU, establishing a zone of safety, and waiting
for permission to handcuff Smith.

Apart from his primary claim

that the officers intentionally dropped him on his head, he
does not allege that the officers conducted the handcuffing in
an incompetent manner.

Rather, his theory is that the very

decision to handcuff him was fraught with unnecessary risk.
The City’s principal legal argument is that negligence is
incompatible with intentional conduct.

See, e.g., Mazzaferro

v. Albany Motel Enters., 127 A.D.2d 374, 376, 515 N.Y.S.2d 631,
632

(1987)

(“[O]nce

established,
negligence,

the
even

intentional

actor
when

is

the

offensive

liable

physical

inflicted inadvertently. . . .

has

been

assault

for

contact

and

not

have

been

injuries

may

There is, properly speaking, no

such thing as a negligent assault.”).

Handcuffing a person is

unquestionably an offensive battery, and would therefore not
typically be actionable as negligence.
However,
privilege

to

where
commit

a

statute
what

offers

would

6

a

police

normally

be

officer
considered

the
a

battery, the police officer must exercise reasonable care in
exercising his discretion.

For example, in McCummings v. New

York City Transit Authority, the Court of Appeals sustained a
jury verdict of negligence in favor of a plaintiff who was shot
and paralyzed by a police officer after allegedly attempting to
rob a man on a subway platform.

81 N.Y.2d 923, 613 N.E.2d 559

(1993); see also Lubecki v. City of New York, 304 A.D.2d 224,
758 N.Y.S.2d 610 (1st Dep’t 2003) (sustaining a jury verdict of
negligence

in

favor

of

hostage

shot

by

police).

Even

Mazzaferro, relied upon by the City, recognized in dicta that
the reasonableness of force exercised by the defendant could
have been “an issue in the case if defendants had asserted the
defense of privilege or justification for the assault.”

127

A.D.2d at 376, 515 N.Y.S.2d at 633.
Here, a statute at least arguably permitted the officers
to take Smith into custody.

See N.Y. Mental Hyg. Law § 9.41

(McKinney 2011) (“Any . . . police officer . . . may take into
custody

any

person

who

appears

to

be

mentally

ill

and

is

conducting himself . . . in a manner which is likely to result
in

serious

authority,

harm
the

to

the

officers

person
were

. . . .”).

bound

to

Despite

exercise

this

reasonable

judgment in deciding the means through which to take Smith into
custody——whether to do so immediately, or to wait for special
personnel and equipment.

7

The Patrol Guide has frequently been accepted as evidence
of the standard of care to be exercised by a police officer.
See Cerbelli v. City of New York, No. 99-cv-6846 (ARR)(RML),
2008

WL

(E.D.N.Y.

4449634,
Sept.

8,

at

*1–25,

2008),

2008

aff’d

U.S.

Dist.

without

LEXIS

objection,

109341
2008

WL

4449634, at *1 (E.D.N.Y. Oct. 1, 2008); Lubecki, 304 A.D.2d at
234–35, 758 N.Y.S.2d at 618.
violated

Patrol

Guide

Thus, evidence that the officers

procedures

is

sufficient

to

survive

summary judgment.5
Here, Smith is correct that it is a jury question whether
the officers complied with the Patrol Guide.

The officers did

not call for assistance and did not view Smith as a threat to
others, so the officers were in compliance with the Patrol
Guide only if (1) the evidence shows that Smith was a danger to
himself or others and (2) handcuffing Smith was a reasonable
response to the danger.

The officers’ expressed concern was

that Smith would return to his apartment and attempt suicide.
However,

even

accepting

this

view,

it

does

not

necessarily

follow that handcuffing Smith was a “reasonable” measure.

5

A

We caution, however, that the Patrol Guide does not establish a legal duty
beyond the common law’s “reasonable person” standard, and that a Patrol
Guide violation does not give rise to a presumption of negligence.
See
Lubecki, 304 A.D.2d at 234, 758 N.Y.S.2d at 617; Schumer v. Caplin, 241 N.Y.
346, 150 N.E. 139 (1925) (holding that the violation of an administrative
rule is only “some evidence of negligence”); cf. Desmond v. City of New
York, 88 N.Y.2d 455, 464–65, 669 N.E.2d 472, 477 (1996) (holding that an
internal NYPD policy does not constitute a “requirement” that would support
a police officer’s statutory claim).

8

reasonable jury could conclude that the officers instead could
have followed Smith into the apartment to prevent him from
turning on his stove or could have drawn Smith into the hallway
and closed the apartment door behind him.

Furthermore, there

is record evidence that the officers’ true concern was that
Smith’s uncontrolled behavior was disturbing children who were
passing

by

on

262:16–265:7,
131:24–132:2

the

building’s

276:14–15;

that

See

also

see

(recounting

stairwell.

Dep.

the

Lagara
officers

Smith to stay inside his apartment).

Kurian

Dep.

131:14–16,

previously

asked

If this was the officers’

true basis for handcuffing Smith, then their decision was not
sanctioned

by

nevertheless

the

Guide,

their

find

Patrol

although

actions

a

jury

reasonable

could

under

the

circumstances.
The City also argues that the decision to handcuff Smith
was not the proximate cause of Smith’s injuries.

Instead,

according to the City, his fall was the proximate cause.

We

agree with Smith that an injury was a foreseeable, and thus
proximate,

result

Recognizing

that

of
an

the

arrest

decision
of

a

to

handcuff

disturbed

person

Smith.
is

an

inherently dangerous undertaking, the Patrol Guide discourages
officers from handcuffing a disturbed person without special
training and equipment.

The risk that this rule seeks to avoid

is that, if an untrained officer attempts to take a disturbed

9

person into custody, a struggle may ensue and someone will be
injured.

This result is certainly one view of the evidence in

this case.
Finally,
merit.

the

City’s

procedural

objections

are

without

Smith was not required to “plead” negligence in his

Notice of Claim, which need only set forth sufficient facts for
the City to investigate a reported incident.
of

New

York,

(2000).

95

N.Y.2d

Although

the

389,

393–94,

negligence

740

claim

See Brown v. City
N.E.2d

in

1078,

Smith’s

1080

amended

complaint leaves much to be desired, the City was clearly on
notice

of

Smith’s

negligence

theory

by

August

2013,

when

Smith’s expert relied on the Patrol Guide to opine that the
officers were negligent even if the events occurred as the
officers had testified.

See Mem. of Walter Signorelli (Aug. 2,

2013) ¶ 13, ECF No. 102-3.

Under these circumstances, the City

does not attempt to explain how it is prejudiced in defending
against Smith’s negligence claim.
Smith

has

presented

evidence

that

Officers

Kurian

and

Lagara decided to handcuff him in contravention of official
procedures, causing him to strike his head and suffer serious
injuries.

A jury may fairly conclude that this was negligence.

Accordingly, the City’s motion is denied.

10

III. ST. BARNABAS’ MOTION
A. Transportation to the Hospital
The facts relevant to St. Barnabas’ motion begin when the
facts

relevant

to

the

City’s

motion

end,

with

officers calling an ambulance to remove Smith.

the

police

See Am. Stmt.

of Undisputed Facts Pursuant to Loc. R. 56.1 (“Barnabas 56.1”)
¶ 11, ECF No. 79.
most

favorable

We recount the subsequent facts in the light
to

the

City,

i.e.,

facts

indicating

that

malpractice on the part of St. Barnabas’ EMTs contributed to
Smith’s injuries.
EMTs James Gelzer and Hiram Mack responded to a report of
an intoxicated person at Smith’s address.

Id. ¶¶ 16–17.

They

arrived and proceeded to meet officers Kurian and Lagara on the
second floor, where Smith’s apartment was located.

Id. ¶ 20.

EMT Mack examined Smith and recorded Smith’s condition in
his Ambulance Call Report as follows:
Presumptive Diagnosis: Intox/Substance Abus.
57yrold male found P.D. handcuff laying on
side naked with towel around waist Intox
with substance abuse appears AOx2 [alert and
oriented as to two factors:] place and name
[but not time]. POSABC [positive airway,
breathing,
and
circulation]
verbal
aggressive. Not under arrest handcuffed for
safety and arrival of EMS. Pt resist getting
up from floor for while. explain not under
arrest stop resistance and aggression and we
going to hospital. Pt calms down. PE
[physical
examination]
reveals
minor
abrasion upon nose Pt does not recall what
[illegible] how also mark on forehead. No

11

other injury felt or seen No body fliulds.
Patient states my body is soar [sic].
transport naked with towel wrap around waist
clothing black pants black top black leather
jacket brought with him yellow shoes. Pt
states cant feel my body POSPMSx4 [positive
pulse,
motor,
and
sensation
in
four
extremities]. No SOB [shortness of breath]
No chestpan [sic] pt remains talkative and
stable during transport.
Ambulance Call Report at 3, Decl. of Michael W. Coffey in Supp.
of Third Party Defs.’ Mot. for Summ. J. (“Coffey Decl.”), Ex.
E,

ECF

No.

69

(emphasis

added;

otherwise,

sic

throughout).

Mack testified that he checked for pulse, motor activity, and
sensation only in Smith’s fingers and toes, not in the rest of
Smith’s limbs.

Dep. of Hiram Mack (“Mack Dep.”) 48:25–49:13,

Decl. of Sumit Sud in Opp. of Third-Party Defs.’ Mot. for Summ.
J. (“Sud Decl.”), Ex. 2, ECF No. 101.
Besides Mack’s report, Lagara says that he also informed
the

EMTs

that

Smith

had

fallen,

see

Dep.

of

Miguel

Lagara

60:19–21, Sells Decl., Ex. 6, although St. Barnabas points out
that

this

documents.

is

not

clearly

supported

by

contemporaneous

According to Smith, Smith also told the EMTs that

he did not have feeling in his limbs.

See Barnabas 56.1 ¶ 30;

Dep. of Andre Smith 183:20–22, Coffey Decl., Ex. N.
The EMT’s moved Smith to the ambulance in a “stair chair,”
a

transport

device

that

does

12

not

immobilize

the

patient’s

spine, and then drove Smith to St. Barnabas.

See Barnabas 56.1

¶ 45.
Smith was admitted to St. Barnabas with a chief complaint
of

alcohol

intoxication.

See

Barnabas

56.1

¶ 89.

Soon

thereafter, a hospital resident recorded that Smith could not
move his lower extremities and immediately placed Smith in a
neck brace, following which an attending physician noted that
Smith could not lift his legs off the stretcher.

See St.

Barnabas Hosp. Med. Records at NYC3736, Coffey Decl., Ex. F;
Barnabas 56.1 ¶ 91.

By the afternoon, Smith’s chief complaint

was listed as “quadriplegia” or “paralysis,” see Barnabas Hosp.
Med. Records at NYC3742, NYC3747, Sud Decl., Ex. 4, and an ICU
consult recorded “acute compressive myelopathy [spine injury]
caused by possible trauma on a chronically compressed [spinal]
cord” with “no strength” in all four extremities.

See id. at

NYC3747, NYC 3750.
A neurosurgical examination several days later revealed
weakness in all four extremities.

See Barnabas 56.1 ¶ 99.

The

physician removed Smith’s neck brace and observed full range of
motion in Smith’s neck.

See id.

change following this exam.

Smith’s condition did not

See id. ¶ 103.

B. EMT Procedures
Upon responding to a dispatch, an EMT should assess the
situation

himself,

instead

of

13

relying

on

a

dispatcher’s

description.

See Third-Party Pls.’ Loc. R. 56.1(b) Stmt. of

Additional Material Facts in Opp. to Third-Party Defs.’ Mot.
for Summ. J. (“City 56.1”) ¶¶ 9–10, ECF No. 100.

The City

maintains that an EMT should assess a trauma patient, including
the victim of a fall, for motor and sensory activity through
all four limbs, as a thorough motor and sensory examination can
reveal spinal damage that examination of the fingers and toes
alone cannot.6

Id. ¶¶ 19–20, 24–26 (citing Decl. of Dr. Thomas

G. Kwiatkowski in Opp. to Transcare’s Mot. for Summ. J., ECF
No. 98).

If the EMT’s examination reveals a possible spinal

cord injury, then the EMT should remove the patient with a long
board

and

movement.

neck

collar

in

order

to

prevent

further

neck

See Mack Dep. 44:25–45:15.

C. Discussion
The record contains sufficient evidence that EMT Mack’s
examination was negligent for the City to survive St. Barnabas’
motion.
First, the parties disagree about how to interpret the
Ambulance Call Report.

The City interprets the Report to mean

that Smith said “can’t move [my] body” within the apartment
building.

6

St. Barnabas interprets the Report to mean that

St. Barnabas
alone is sound
at the ends of
this “battle of

disagrees, and contends that testing the fingers and toes
practice, because nerve damage will typically hinder motion
the limbs if it hinders motion anywhere. We cannot resolve
the experts” at summary judgment.

14

Smith said “can’t move [my] body” in the ambulance, after the
EMTs had already moved him in a stair chair.

The “can’t move

my body” line falls in an ambiguous place in the Report, after
a

sentence

about

Smith’s

transportation,

but

before

Mack’s

record of testing Smith’s pulse, motor activity, and sensation.
The reasonable inference most favorable to the City is that
Smith said “can’t move my body” before Mack tested his pulse,
motor

activity,

and

sensation,

i.e.,

while

Smith

was

still

we

credit

lying on the hallway floor.
Second,
testimony

of

at

the

the

summary

City’s

judgment

expert

that

stage,
an

EMT

faced

the

with

a

possible trauma should test for motor activity and sensation
along the entire length of the patient’s arms and legs.
Third,

there

is

some

evidence

that

Smith’s

condition

worsened between departing from the hallway and arriving at the
hospital.

While EMT Mack observed movement in Smith’s fingers

and toes, the hospital resident detected no movement in Smith’s
arms and legs soon after Smith arrived at the hospital.

When

combined with a favorable expert opinion, this apparent change
in

Smith’s

ambulance

condition
ride

could

suggests
have

that

neck

contributed

to

movements
Smith’s

on

the

present

condition.7

7

St. Barnabas argues that this is impossible because Smith’s condition did
not deteriorate further after the February 9 exam, when Smith moved his neck

15

In sum/

the evidence

to the City/ shows
for

trauma 1

(2)

examination/

(3)

and

1

(4)

that

the EMTs

that/

that/

as

Barnabas

owes

a

failed
result

the EMTs

to perform a
of

failed

failing

favorable

to

the

1

S

injury.

City

reasonable

to

perform

1

S

neck/

If this is the case/

contractual

a

immobilize Smith/ s

by failing to immobilize Smith

EMTs contributed to Smith
St.

viewed in the light most

(1) that the EMTs had cause to examine Smith

reasonable examination/
neck

1

indemnification

the
than
or

common-law contribution.
IV. CONCLUSION

The motions for summary judgment
denied.

(ECF Nos. 53

1

58

1

68)

are

The parties shall confer and advise the Court within

thirty days whether they wish to engage in further settlement
negotiations or schedule trial. 8
IT IS SO ORDERED.

Dated:

New York New York
August d~ 2015
1

L,ild:;;:d

NAOMI REICE BUCHWALD

through a full range of motion.
This is not a convincing argument.
There
is simply no comparison between controlled neck movements a week after
Smith's accident and uncontrolled neck movements on an ambulance ride
immediately after the trauma, when Smith's congenitally compressed cord was
already swollen and most susceptible to further injury.
See Decl. of Dr.
Adam Bender in Opp. to Transcare's Mot. for Summ. J. ~ 14, ECF No. 97.
8
The Clerk of Court is directed to terminate the New York City Police
Department, Kurian in his official capacity, and Lagara in his official
capacity as parties.
Plaintiff's most recent complaint omitted the Police
Department, which is in any event not a suable entity, and plaintiff seeks
only money damages against Kurian and Lagara, a remedy that runs against
them individually.

16

UNITED STATES DISTRICT JUDGE

17