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Jury Award Against Officers for Excessive Force Is Reinstated

Author: Ben Bedell, New York Law Journal, April 13, 2016 – An appeals court reinstated $1.8 million of a $4 million jury verdict against New York City and two of its police officers that had been cut to $350,000 by a trial judge in an excessive force case Tuesday.

A unanimous panel of the Appellate Division, First Department, reversed Justice Howard Sherman‘s determination that no punitive damages should have been awarded against two officers.

Although the jury’s $750,000 awards against each of the officers were deemed excessive, the panel said $75,000 each was appropriate and reinstated $1.65 million of the jury’s award against the city.

In an opinion by Justice Barbara Kapnick, the panel said Sherman had “impermissibly usurped the jury’s role and made factual determinations.”

A Bronx jury had awarded a total of $4 million in damages to William Cardoza, who was arrested in a May 2008 incident that began when police surrounded him on a sidewalk outside of his apartment building and demanded that he produce identification. The police said they had seen him holding an open beer bottle.

Cardoza, 49 at the time, was bringing a plate of chicken to his wife and family for an outdoor dinner in the building courtyard. He testified he drank two or three beers while cooking the dinner, and had one in his hand when he went to the courtyard. He was employed as the superintendent of the apartment building where he lived with his wife and seven children.

It was undisputed Cardoza, who was born in Puerto Rico, did not understand English, and his wife attempted to intervene to translate the police commands, most of which were in English.

As he was taken into custody, he and his wife were pepper-sprayed, and Cardoza’s hand was splintered in two places by baton blows, requiring surgery that night. Cardoza spent six days handcuffed to a hospital bed after the arrest, according to opinion.

The Bronx District Attorney’s Office dropped a resisting arrest charge and a judge dismissed the remaining disorderly conduct charge after hearing the testimony of one of the arresting officers.

Cardoza claimed in his civil case, brought under 42 USC §1983, that police used excessive force and had falsely claimed he had resisted.

During a three-week trial, the jury viewed video from a surveillance camera that captured the entire incident.

But Sherman, in a 188-page post-trial ruling, said the jury had been mistaken in finding the police liable for malicious prosecution. He vacated the punitive damages against NYPD officers Benjamin Perez and Carlos Mendez.

Sherman said the record contained no showing of false statements by the officers, and thus Cardoza had failed to establish malice, which was necessary for a prima facie case of malicious prosecution and to sustain his claim for punitive damages.

Sherman let the excessive force finding stand but cut the damages award, saying he did not credit expert testimony as to Cardoza’s post-traumatic stress claim.

The parties cross-appealed, but the city did not challenge the excessive force finding, only the punitive award and the damage amounts.

The appeals panel said Cardoza’s injuries warranted past and future pain and suffering damages of $400,000 and $1.25 million respectively.

“When the facts give rise to conflicting inferences, as they do here, it is for the jury, not the court, to resolve those conflicts,” Kapnick said. She added that Sherman’s statement that Cardoza had “‘refused to submit to the authority of the police’ is a clear example of the court substituting its judgment for that of the jury.”

“Contrary to the trial court’s assessment, there was evidence from which the jury could have reasonably concluded that Perez and Mendez acted with reckless indifference or malice,” Kapnick said, referencing conflicts between the officers’ testimony and the video.

“While the reduction of the jury’s award for punitive damages is substantial, a $75,000 award against each individual defendant will, in our opinion, surely act as a deterrent against similar conduct in the future,” she said.

Joining in the ruling in Cardoza v. City of New York, 307977/08, were Justices Rolando Acosta, David Saxe, Rosalyn Richter and Judith Gische.

In his March 2014 ruling, Sherman also denied Cardoza’s lawyers attorney fees, which are payable under the fee-shifting provision of §1983. The panel ordered Sherman to award fees and remanded the issue for a determination of the amount.

The defendants were represented by Dona Morris, Pamela Dolgow and Lavanya Pisupati of the Corporation Counsel’s office, which said it is reviewing the decision and evaluating its options.

Seth Harris, of Burns & Harris, who represented Cardoza at the trial and was co-counsel on the appeal, said: “I’ve been doing excessive force cases for 25 years. The evidence in this one, especially the video, was very compelling. My client was not resisting, He was not doing anything wrong.”

Harris said Sherman’s ruling left him “steamed. I think Justice Kapnick’s opinion set the record straight and was spot on.”

He asserted, however, that both police officers would be indemnified for the punitive damages award and would not have to pay out of pocket.

Harris was assisted by Christopher Donadio, who has since left the firm. Pollack, Pollack, Isaac & DeCicco partner Brian Isaac was co-counsel on the appeal.

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