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New York County, NY

This action involved male plaintiff, age in his mid 30s at the time, who was the manager of well known "boutique" clothing store, housed in an old church building in Manhattan, who with several co-workers, had gone out for the evening to celebrate Cinco de Mayo. The plaintiff and a co-worker, who was not involved in this action, met two women at a bar, and brought them back to the store in the early morning hours, told them they could try on clothes and buy them at a discount. While at the store, the girls started to stash clothes in their handbags saying that they were promised they could take them for free. The plaintiff accused them of looking to steal the clothes. A disagreement, and soon a struggle, ensued. The women ran out of the store and actually took the plaintiff’s cell phone. Unbeknownst to plaintiff and co-worker, the women called the police from outside the building.

After the women ran out of the store, the plaintiff testified that he and his co-worker cleaned up the strewn clothes, and hung them up on the racks, getting ready for the next business day. They then went to the second floor, where they fell asleep on the floor in an alcove, understanding that in a few hours, they needed to re-open the store. The plaintiff had no idea the police were called or came to the scene, and did not see anyone peer through the church doors.

In the meantime, shortly after the women called ________, two precinct police officers arrived, and the women complained that they were assaulted during a struggle, and that a neck chain was either ripped off, or it fell off. One of them was crying and stated that she “thought” she was going to be raped. The women did acknowledge that the dispute centered on their belief that the two guys inside told them that they were allowed to take clothes for free. One of the women had a relatively slight scratch on her arm, but there was no medical attention requested or needed for the women. Also, there was no evidence of any sexual activity or contact; there was no report of any weapon; and the women did state that the men worked in the store.

The officers acknowledged that the call was of a seemingly minor incident, and they did not have any cause to make an arrest. They merely wanted to speak to the two guys to get their side of the story. They peeked through an opening between two large church doors that were held together by a large chain, but left the doors ajar. The officers stated that they observed the two men calmly hanging clothes on the racks. The officers never identified themselves, or said anything to the men for the one to two minutes that they peered into the store. The officers claim that one of the guys “saw” the officers, and then ran upstairs; however, the officers never called out, or identified themselves to the men. The plaintiff denied seeing any officers or running up the stairs.

The officers then called the precinct supervisor, who was a fill in supervisor just for that night. The supervisor came to the scene, and not sure how to handle the situation, called The New York City Police Emergency Services Unit (ESU), which is the police SWAT team. The supervisor testified that he called ESU only to open the chain which held the church doors open. He testified that he really did not know what the ESU would do once they arrived. Within a short time, two large SWAT trucks with four officers, an ESU supervisor, and a K9 dog handler, with the German Shepherd K9 dog, arrived at the scene. By this time, the plaintiff and his co-worker were fast asleep on the second floor, and they did not hear or see anything.

The six SWAT team members all had various entries in their memo books about why they were called and why they needed to handle this case in such a serious manner. One officer said he was told the girls were kidnapped. One officer said there was a rape with a knife. One officer said he believed the men had deadly weapons. All the officers said they feared for their lives.

The ESU team discussed and planned their entry. They entered the premises suited up in heavy armor and ballistic vests and helmets. They had heavy machine guns, hand held guns with lights, and ballistic shields. The K9 dog entered first, because the ESU officers stated that they perceived their lives to be in danger and the K9 is there to protect their lives.

After searching the first floor, the ESU team moved up to the second floor, and the K9 dog was let loose, unleashed. Either the dog or some of the officers first spotted plaintiff, who was lying prone and motionless on the floor. Notwithstanding that several ESU officers had their guns drawn upon plaintiff, and that they were yelling commands, testimony was elicited from one of the ESU officers that it was only after the ESU encountered the plaintiff, that the K9 dog was sent in to ‘apprehend’ plaintiff, which is the police department way of saying that the dog went to bite plaintiff. The dog handler officer admitted he did not have the dog under his control and that he did not see the first time that the dog went to engage with the plaintiff.

The plaintiff’s version is that he was asleep and he was awakened by several officers kicking and hitting him, and cursing at him. They placed handcuffs on him and only once he was cuffed, did the K9 dog attack him. The plaintiff sustained a mangled and severely bitten left arm. The dog also bit plaintiff him on the chest and both legs. The plaintiff was arrested and taken to Bellevue Hospital and handcuffed to the bed. Within 24 hours, and after an interview with the women reflected what they originally told the precinct patrol officers, that the dispute essentially regarded the issue of clothing, the plaintiff was released from custody and no charges were filed. The arrest reports and other ESU documents did contain many contradictions and seeming cover-up statements meant to justify the need for ESU and the K9 dog.

The plaintiff asserted that the ESU and police officers improperly escalated the situation and fabricated some of their reports to justify their overreaction. The plaintiff contended that there was no reasonable justification for the use of the K9 dog in this case, and even if there was reasonable justification for ESU to be called, it was only to open the chain on the door, and allow the precinct officers to speak to the plaintiff to get his side of the story. Finally, even if there was justification for ESU and the K9 dog to be at the scene, there was a last clear chance to prevent the dog attack, since before the K9 attacked plaintiff, the ESU officers were standing over him, with their guns drawn, and the plaintiff was lying motionless, with no threat to the officers.

The plaintiff suffered numerous bites on his left arm and suffered extensive muscle, nerve and skin wounds. The plaintiff required multiple surgeries, including skin and muscle grafts along with nerve transposition surgery. He spent two weeks at Bellevue Hospital, then followed at Bellevue outpatient, orthopedic, dermatology, neurology, pain management, occupational and hand therapy, and mental health clinics, for several years. The plaintiff maintained that he will permanently suffer weakness and restriction of motion in the left arm and hand, and that the permanent cosmetic deficit to his left arm is severe. The plaintiff must wear a covering over his left arm at all times. He endured over 50 cortisone shots to his left arm.

The plaintiff further asserted that he developed severe PTSD and continued to undergo regular mental health treatment, both at Bellevue and at a local facility, and received treatment including the necessity of daily medications, since the happening of this episode seven and a-half years earlier. The plaintiff contended that he was suddenly transformed from a physically and socially active and outgoing unmarried individual to a person isolated and emotionally depressed, with phobias, sleep disturbances and loss of self-esteem. The plaintiff related that he frequently has nightmares, and panic attacks, especially when he sees dogs or a police car.

The plaintiff also contended that in August ________, as he was in the depths of depression, he took an overdose of many pills (Tylenol with codeine, and zolpidem, simvastatin and buspar) in an unsuccessful suicide attempt. He spent ten days in the psych ward of Woodhull Hospital. The plaintiff’s psychiatrist would have testified that the onset and worsening of plaintiff’s mental health injuries are directly related to the subject event, and that his post-traumatic stress disorder is permanent and totally disabling.

The plaintiff, who earned close to $________ a year, and had a steady work history for 12 years prior to this event, has not worked since the incident and has been declared totally and permanently disabled by Social Security. The plaintiff’s economist projected loss of earnings of $2.5 million dollars over his life.The case settled prior to trial for $________.

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