WATKINS v. SEARS ROEBUCK COMPANY (2001)

Judgment, Supreme Court, Bronx County (Howard Silver, J.), entered May 22, 2001, dismissing the action for assault and battery upon defendant's motion for judgment as a matter of law made at the close of plaintiff's case, unanimously affirmed, without costs.

The action was properly dismissed upon plaintiff's trial testimony that his leg was broken when he was tackled from behind, without warning, by a security guard employed by defendant retail store, after he exited the store at a rapid pace with a stolen “boom box” knowing that he might be stopped or chased.   Nothing in plaintiff's testimony indicates that he would have heeded a warning to stop, and the guard's use of force admittedly stopped once plaintiff hit the ground (compare, Taggart v. Alexander's, Inc., 90 A.D.2d 542, 455 N.Y.S.2d 117).   Given these circumstances, the non-deadly force used by the guard in apprehending a fleeing shoplifter was reasonable as a matter of law (see, General Business Law § 218;  cf., Penal Law § 35.30[4];  see, Sindle v. New York City Tr. Auth., 33 N.Y.2d 293, 296-297, 352 N.Y.S.2d 183, 307 N.E.2d 245;  cf., e.g., Brown v. State of New York, 250 A.D.2d 796, 675 N.Y.S.2d 611).   We have considered plaintiff's other arguments and find them unavailing.