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BANKS v. YOKEMICK

June 13, 2001

MAYBELL E. BANKS, AS ADMINISTRATIX OF THE ESTATE OF HER SON KENNETH BANKS, AND ON HER OWN BEHALF, PLAINTIFF,
v.
P.O. CRAIG YOKEMICK, DEFENDANT.



The opinion of the court was delivered by: VICTOR Marrero, United States District Judge.

DECISION AND ORDER

Plaintiff Maybell Banks ("Banks") Commenced this action on her own behalf and as administration of the estate of her son, Kenneth Banks. The suit was brought under § 1983 of the Civil Rights Act, 42 U.S.C. § 1983, alleging violations of constitutional rights arising from the conduct of defendant Craig Yokemick ("Yokemick"), an officer of the New York City Police Department ("NYPD"). Banks's claims include unlawful arrest and the use of excessive force, as well as wrongful death and several other related causes of action under state law.

FACTS

Plaintiff Maybell Banks alleges that Kenneth Banks was riding a bicycle on 125th Street and Madison Avenue on October 29, 1998 when Yokemick, who was chasing Kenneth Banks, threw his police radio at him, striking the back of Kenneth Banks's head, knocking him off the bicycle and causing him to fall to the ground. Banks further claims that Yokemick and other NYPD officers conspired to cover up the attack and jailed Kenneth Banks in the precinct instead of bringing him to a nearby hospital; that the officers refused to obtain timely and adequate medical treatment for Kenneth Banks; and that Kenneth Banks's life could not be saved by the time he was taken to the hospital later on October 29, 1998. Kenneth Banks went into a coma shortly after his arrival at the hospital and died on October 31, 1998.

Yokemick claims that he acted reasonably, in good faith and with justification in the proper and lawful exercise of his duties as a police officer. He further alleges that Kenneth Banks's injury Could only have been caused when Banks's head struck the pavement as Yokemick tackled him while making a lawful arrest.

DISCUSSION

Now before the Court are various motions and requests that the parties have made on the eve of trial.*fn1 Yokemick renews his request, previously denied by the Court, that the trial of this matter scheduled to start in a matter of days be stayed pending the outcome of a grand jury investigation by the United States Attorney into Kenneth Banks's death. Yokemick also moves for a determination that he is entitled, as a matter of law, to representation and indemnification by the City of New York. Banks requests leave to introduce at trial, with a negative inference against Yokemick, the deposition testimony of two police officers who invoked their privilege against self-incrimination in depositions taken in connection with this action. The Court will address these motions in turn.

I. STAY OF TRIAL

Yokemick has repeatedly requested a stay of the trial, now scheduled to begin imminently. The Court reaffirms its previous denials of this motion. This ruling is not made lightly. The Court recognizes the difficult position in which Yokemick finds himself.

Nonetheless, the Court's ruling is not made in a vacuum. Resolution of this matter cannot be viewed solely from Yokemick's perspective, unenviable as his predicament may be. As soon as it learned of the federal investigation relevant to the events at issue here and at the request of the parties, the Court contacted the United States Attorney in order to obtain any information that might shed light on the estimated duration of the Government's investigation and the appropriateness of proceeding with the instant case. The Court has made inquiries more than once during the past year, including very recently. Unfortunately, it has received no information that could help determine whether granting a stay of the instant action at this time would serve the interests of justice. The Court also postponed scheduling a trial of this matter for at least six months pending an outcome of those proceedings.

Absent any word indicating when the Government's investigation may conclude, the Court is left to weigh competing assertions of rights and potential prejudice in proceeding to trial. On one side is a plaintiff insisting on resolving the merits of claims that were commenced more than two years ago, based on events that occurred in 1998. On the other side is a defendant facing exposure to potential criminal charges and seeking to put off the trial for the reasons already described.

As Judge Lynch recently noted in Sterling Nat'l Bank v. A-l Hotels Int'l, Inc., No. 00 Civ.7352, 2001 WL 474240, at *2 (S.D.N.Y. May 4, 2001), the quandary the Court describes is not uncommon. Rather, it recurs with sufficient regularity that a consensus has emerged regarding the standards to be applied to guide an equitable adjustment of the various interests at stake. While the Court has the power and discretion to stay a civil action pending the outcome of related criminal proceedings, such relief is not constitutionally mandated. See Securities & Exch. Comm'n v. Dresser Indus., 628 F.2d 1368, 1375 (D.C. Cir. 1980). This principle is well-established. The Second Circuit has declared that "nothing in the Constitution forbids contemporaneous civil and criminal proceedings concerning the same subject matter." Nosik v. Singe, 40 F.3d 592, 596 (2d Cir. 1994). See Keating v. Office of Thrift Supervision, 45 F.3d 322, 324 (9th Cir. 1995)

In exercising its discretion to stay a civil proceeding under these circumstances, the Court must decide whether the interests of justice compel such action. That decision demands a particularized inquiry into the circumstances of, and the competing interests in, the case. See Keating, 45 F.3d at 325; Federal Sav. & Loan Ins. Corp. v. Molinaro, 889 F.2d 899, 902 (9th Cir. 1989); Morris v. American Fed'n of State, County and Mun. Employees, No. 99 Civ. 5125, 2001 WL 123886, at *2 (S.D.N.Y. Feb. 21, 2001).

A number of factors relevant to this analysis have been enunciated by the courts, including: (1) the interests of the plaintiff in an expeditious resolution and the prejudice to the plaintiff in not proceeding; (2) the interests of and burdens on the defendant, in particular the extent to which the defendant's Fifth Amendment rights are implicated; (3) the convenience to the Court in the management of its docket and in the efficient use of judicial resources; (4) the interests of other persons not parties to the civil action; and (5) the interests of the public in the pending civil and criminal actions. See Keating, 45 F.3d at 324. Balancing these principles, the Court again reaffirms its prior rulings to deny a stay of this case.

Banks, the mother of the victim and suing on her own behalf as administratrix of her son's estate, is now 69 years old. The passage of time works considerably to Banks's detriment. Delay obviously tends to decrease the availability of witnesses. The longer the case is postponed, the more Banks risks failing to see an adjudication of her rights and those of her son's estate.

A speedier resolution would also benefit many other people involved in the events relevant to the case. These include relatives of the victim, the numerous other originally named defendants who have settled but are scheduled to appear here, and other witnesses to the event in question who are also waiting to testify. All of these persons share an abiding interest in not dangling in a state of uncertainty any longer, subject to the anxieties associated with waiting indefinitely for something that may not happen. The matter before the Court should not continue hanging over them indefinitely. Instead, they should be allowed to move on with their lives and put these events behind them, insofar as each is so able.

Weighing the defendant's interests, the Court notes that Yokemick has not been indicted. Other courts, while recognizing that this consideration is not dispositive, have indicated that an announced indictment would weigh heavily in the defendant's favor in the calculus of whether to stay a related civil case. See A-l Hotels, 2001 WL 474240, at *3 (citing cases). Yokemick has invoked the Fifth Amendment in this action and as a consequence has been precluded from pursuing any matters he refused to address at his deposition. Yet that limitation, though significant, does not bar Yokemick from presenting a vigorous defense through cross-examination and other means available to him to challenge the substance of Banks's case.

In this regard, however, as this Court observed in granting Banks's motion to preclude certain defenses, Yokemick, whether for his own tactical reasons or otherwise, has chosen to remain on the sidelines during substantial periods of this litigation, as though here as a bystander, rather than as the defendant. He elected, for example, not to retain any experts to rebut the reports and testimony of Banks's three expert witnesses — a defense measure that would not have been excluded by the Court's preclusion order.

The public also has a significant interest in the swift resolution of this case. Given the unique circumstances at issue, this litigation has stirred more than ordinary public interest. The death of an allegedly unarmed black man, through the use of excessive force by a white police officer at 125th Street in Harlem, lends particular urgency to a swifter determination of the facts and disposition of any claims these facts support. Finally, the Court, after the lengthy delays already mentioned, scheduled this matter for trial months ago, and has an interest in not disrupting other matters on its docket and in proceeding to a disposition on the merits of a case that is ready for a jury.

II. REPRESENTATION AND INDEMNIFICATION

The City, as third-party defendant, has interposed a Trial Memorandum in which it contends that (1) the issue of representation and indemnification are matters of law to be decided by the Court; (2) the City's indemnification determination must be made in the first instance by the Corporation Counsel before a challenge to that decision is ripe for judicial review; (3) as a matter of policy, such a decision is not made until after the conclusion of the trial; and (4) the relevant standard of review applied to assess the sufficiency of a particular determination is solely whether it is arbitrary and capricious, in that no factual basis exists for the determination. See City of New York's Trial Memorandum of Law, dated May 8, 2001, at 6 (citing Jocks v. Tavernier, 97 F. Supp.2d 303, 313 (E.D.N.Y. 2000); Williams v. City of New York, 476 N.E.2d 317 (N.Y. 1985)).

In an earlier in-limine motion to dismiss Yokemick's cross-claims, the City argued not only that Yokemick's request was premature, but that this Court lacked jurisdiction up hear it because the exclusive means New York law accorded a City employee to challenge an alleged wrongful denial of representation or indemnification by the Corporation Counsel was a proceeding pursuant to article 78 of the New York Civil Practice Law and Rules ("CPLR"). See N.Y. CPLR Art. (McKinney 2001). This Court ruled that the City had not cited sufficient authority to support its jurisdictional objection.

The Court concluded that the weight of opinion among courts in this District which have considered the issue is that nothing in G.M.L. § 50-k or case law compels a ruling that article 78 provides the exclusive method for City employees to establish a claim for representation or indemnification or to contest the Corporation Counsel's rejection of a demand for such relief. See Nevares v. Morrissey, No. 95 Civ. 1135, 1998 WL 265119, at *3 (S.D.N Y May 22, 1998); Harris v. Rivera, 921 F. Supp. 1058, 1061 (S.D.N.Y. 1995); Kelly v. City of New York, 692 F. Supp. 303, (S.D.N.Y. 1988); see also Jocks, 97 F. Supp.2d at 312; Mercurio v. City of New York, 592 F. Supp. 1243, 1245 (E.D.N.Y. 1984), aff'd, 758 F.2d 862 (2d Cir. 1985). The Court reserved judgment on the merits of this dispute, to which it now turns.

Resolution of the issue at hand requires interpretation of three provisions of G.M.L. § 50-k that are closely interlaced. Section 50-k(2) provides, in pertinent part, that upon request by the employee and subject to the conditions set forth in G.M.L. § 50-k(4) requiring the employee's full cooperation in the defense of the proceeding,

The city shall provide for the defense of an employee of any agency in any civil action or proceeding in any state or federal court . . . arising out of any alleged act or omission which the corporation counsel finds occurred while the employee was acting within the scope of his public employment and in the discharge of his duties and was not in violation of any rule or regulation of his agency at the time the alleged act or omission occurred.

G.M.L. § 50-k(2). Section 50-k(3) states:

The city shall indemnify and save harmless its employees in the amount of any judgment obtained against such employees in any state or federal court, or in the amount of any settlement of a claim approved by the corporation counsel and the comptroller, provided that the act or omission from which such judgment or settlement arose occurred while the employee was acting within the scope of his public employment and in the discharge of his duties and was not in violation of any rule or regulation of his agency at the time the alleged damages were sustained; the duty to indemnify and save harmless prescribed by this subdivision shall not arise where the injury or damage resulted from intentional wrongdoing or recklessness on the part of the employee.

G.M.L. § 50-k(3). Finally, § 50-k(5) provides:

In the event that the act or omission upon which the court proceeding against the employee is based was or is also the basis of a disciplinary proceeding by the employee's agency against the employee, representation by the corporation counsel and indemnification by the city may be withheld (a) until such disciplinary proceeding has been resolved and (b) unless the ...

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