Bastian v. City of New York

261 A.D.2d 129, 687 N.Y.S.2d 258, 1999 N.Y. App. Div. LEXIS 4651

Opinion

—Amended judgment, Supreme Court, Bronx County (Stanley Green, J.), entered June 23, 1997, which, upon a jury verdict in plaintiffs favor and against defendant, awarded plaintiff damages structured pursuant to CPLR article 50-B, unanimously affirmed, without costs.

The evidence does not so preponderate in favor of defendant that the jury could not have reached its verdict upon any fair interpretation of the evidence (see, e.g., Edwards v Manhattan & Bronx Surface Tr. Operating Auth., 252 AD2d 410), and, accordingly, we decline to order a new trial. Contrary to defendant City’s argument, the doctrine of judgmental error is inapplicable to shield the City from liability for what the jury, based on the evidence before it, permissibly found to have been the intentional and unjustified use of deadly force by a police officer upon plaintiffs decedent, an unarmed civilian (see, Jones v State of New York, 33 NY2d 275). In structuring the judgment, the trial court correctly applied CPLR 5041 (see, Fisk v City of New York, 256 AD2d 167, lv denied 93 NY2d 845). We have considered defendant’s remaining arguments and find them to be unavailing. Concur — Tom, J. P., Wallach, Lerner and Rubin, JJ.