BROCATO v. CITY OF NEW YORK

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Supreme Court, Appellate Division, First Department, New York.

Mark BROCATO, et al., Plaintiffs-Appellants-Respondents, v. The CITY OF NEW YORK, Defendant-Respondent-Appellant,

The New York City Police Department, et al., Defendants-Respondents. Mark Brocato, et al., Plaintiffs-Respondents-Appellants, v. The City of New York, et al., Defendants-Appellants-Respondents.

Decided: May 28, 2002

NARDELLI, J.P., SULLIVAN, ELLERIN, LERNER and RUBIN, JJ. Richard A. Gilbert, for Plaintiffs-Appellants-Respondents. Barry P. Schwartz, for Defendant-Respondent-Appellant. Barry P. Schwartz, for Defendants-Respondents. Richard A. Gilbert, for Plaintiffs-Respondents-Appellants. Barry P. Schwartz, for Defendants-Appellants-Respondents.

Order, Supreme Court, New York County (Eileen Bransten, J.), entered November 18, 1999, which set aside the jury verdict of liability in this General Municipal Law § 205-e case insofar as it was based on defendants' violation of the New York City Patrol Guide Regulations § 104-1 and Interim Order 15 (relating to the use of deadly force), denied that branch of defendants' motion to set aside the liability verdict as it related to defendant the City of New York's violation of Multiple Dwelling Law § 78, Multiple Residence Law § 32, and 9 NYCRR 1242.3 (relating to lighting requirements), denied that branch of defendants' motion to set aside the damages as excessive, but ordered a new trial on the issue of damages attributable to the City, and order, same court and Justice, entered January 26, 2000, which, upon reconsideration, inter alia, adhered to the prior disposition of defendants' motion to set aside the verdict, unanimously modified, on the law and the facts, to vacate the direction that there be a new trial on damages, and otherwise affirmed, without costs.

 Neither the Departmental Patrol Guide nor the Interim Order can serve as the basis for a claim under General Municipal Law § 205-e, since neither is a statute, regulation or ordinance and neither reflects a well-developed body of law, but merely guidelines, notwithstanding the use of mandatory terms.   To permit either to serve as a predicate for a General Municipal Law § 205-e action would impose a higher standard of care than that imposed by law, and thereby serve as a powerful disincentive to promulgation of internal rules (see, Galapo v. City of New York, 95 N.Y.2d 568, 721 N.Y.S.2d 857, 744 N.E.2d 685;  Flynn v. City of New York, 258 A.D.2d 129, 693 N.Y.S.2d 569).   Although plaintiff requests that we retrospectively deem the predicate for his General Municipal Law claim alleging improper use of deadly force to be Penal Law § 35.30, so as to avoid the problems raised by his counsel's reliance until now upon the Patrol Guide and Interim Order, and by this device reinstate the jury verdict upon his General Municipal Law claim alleging improper use of deadly force, we may not accede to this request, raised for the first time on appeal, since the case was tried to the jury on the basis of the Patrol Guide and Interim Order, which impose a standard of conduct wholly different from the justification criteria set forth in Penal Law § 35.30. In any event, Penal Law § 35.30 does not establish a standard of care upon which a civil cause of action can be based, but rather a defense (see, Brunelle v. City of New York, 269 A.D.2d 347, 348, 702 N.Y.S.2d 648).   With respect to the applicability of Galapo, supra, because the Court of Appeals in that case merely “settle[d] a question in a manner that was clearly foreshadowed,” retroactive application of the case, which was decided after the jury rendered its verdict in the instant case, is appropriate (see, People v. Favor, 82 N.Y.2d 254, 263, 604 N.Y.S.2d 494, 624 N.E.2d 631).

 The evidence was sufficient, and the verdict was not against the weight of the evidence, on the issue of the City's violation of various statutes requiring adequate lighting in buildings it owned and operated and on the issue of the City's notice of the alleged defect.   Indeed, plaintiff established, through the testimony of the building superintendent, that defendant City had actual knowledge of a missing light bulb in the hallway where plaintiff was accidentally shot.   Upon our review of the trial record, we find no basis to conclude that the introduction of the Patrol Guide and Interim Order tainted the jury on the issue of the City's liability.

In light of the medical testimony and documentary evidence concerning the nature and extent of plaintiff's injuries, the award of $1.5 million for past and future pain and suffering does not deviate materially from what is reasonable compensation.