Opinion
10817 Index 101341/11
01-21-2020
Nathaniel MYERS, Plaintiff–Respondent, v. The CITY OF NEW YORK, etc., et al., Defendants–Appellants, Police Officers John Doe(s) #'s 9th Precinct, Defendants.
James E. Johnson, Corporation Counsel, New York (Eva L. Jerome of counsel), for appellants. Law Office of David A. Zelman, Brooklyn (Ephrem J. Wertenteil of counsel), for respondent.
James E. Johnson, Corporation Counsel, New York (Eva L. Jerome of counsel), for appellants.
Law Office of David A. Zelman, Brooklyn (Ephrem J. Wertenteil of counsel), for respondent.
Manzanet–Daniels, J.P., Gesmer, Oing, Moulton, Gonza´lez, JJ.
Collateral estoppel barred plaintiff's claim that an officer used excessive force by pushing him in a stairwell. Defendants demonstrated that the same issue existed and was decided against plaintiff in the criminal action, and plaintiff failed to show that he lacked a full and fair opportunity to litigate that issue in the criminal action (see Kaufman v. Eli Lilly & Co. , 65 N.Y.2d 449, 455, 492 N.Y.S.2d 584, 482 N.E.2d 63 [1985] ; Grayes v. DiStasio, 166 A.D.2d 261, 262–263, 560 N.Y.S.2d 636 [1st Dept. 1990] ). The remaining allegations of excessive force, and the claim of respondeat superior, should have been dismissed since there was no competent proof to show that the alleged excessive actions by the police were unreasonable under the circumstances or caused plaintiff compensable injury (see Graham v. Connor, 490 U.S. 386, 396–397, 109 S.Ct. 1865, 104 L.Ed.2d 443 [1989] ; Davidson v. City of New York, 155 A.D.3d 544, 65 N.Y.S.3d 520 [1st Dept. 2017] ).