The defendant State of New York moves to dismiss the claim brought on behalf of the estate of Chris Anthony Kenner by Sheena Michelle Wood that arose out of a confrontation between the occupants of two vehicles at a stop light near LaGuardia Airport. Chris Kenner, the driver of an SUV, was killed by a discharge from the firearm of off-duty correction officer Emilio Maldonado, who was driving a station wagon. With Chris Kenner in the SUV was his brother Leroy Kenner, who was subsequently convicted by a jury of Assault in the Third Degree.^[FN1]

The papers submitted by the parties and considered by the Court are as follows: defendant's Notice of Motion and Affirmation in Support of Motion for Summary Judgment with exhibits A through F; claimant's Affirmation in Opposition with exhibits A through I; and defendant's Reply Affirmation in Support of Motion for Summary Judgment. In addition, the Court had the benefit of oral argument. The written submissions include, inter alia:

- Testimony from the Grand Jury impaneled for the charges against Leroy Kenner. This is principally the grand jury testimony of Maldonado, but also includes a two-page excerpt of testimony by an eyewitness who called 911 (aff opp, exh C; the excerpt is pp 248-249).

- Testimony from the April, 2008 criminal trial of Leroy Kenner of: Emilio Maldonado and his wife, Eugenia Maldonado; eyewitnesses Jacques Carson and Martin Tew; Detective Matthew Steiner of the NYC Police [*2]Department's crime scene unit; and Dr. Corinne Ambrosi, deputy chief medical examiner.^[FN2] (Aff opp, exh D).

- The deposition of Maldonado, taken December 7, 2009 in connection with this case (aff opp, exh E and aff sup, exh D).

- The following documents: Directive 2020, Off-Duty Firearms Regulation from the Department of Correctional Services^[FN3] (aff opp, exh I and aff sup, exh F); the sworn statement of Det. Frank Ciccone (January 10, 2007) that, upon information and belief, Leroy Kenner committed certain offenses (aff opp, exh B); the three-count indictment of Mr. Kenner filed March 8, 2007 and the Certification of Disposition Indictment (aff sup, exh E).

On Tuesday, January 9, 2007 at about 7 p.m., the Kenner SUV was stopped at a red light; Mr. Maldonado's Honda station wagon was behind it. They were on the northbound side of 94th Street just before the Grand Central Parkway. With Maldonado were his wife Eugenia and son Vincent, who was nearly two years old. Maldonado was about to turn onto the access road or ramp to the Grand Central Parkway in order to head back to their home in the Bronx. They had spent that Tuesday in Queens visiting Mrs. Maldonado's parents, shopping and having dinner in a restaurant.

The light turned green and when the SUV did not proceed, Maldonado honked his horn. Maldonado estimated the time from when the light changed to using the horn as four to five seconds and perhaps as long as ten seconds. The SUV did not move, and Maldonado testified that he thought it had a breakdown of some kind, so:

"As I started to merge over to the right lane I am looking to make sure that I don't get hit by any cars that are going down, the passenger in the vehicle in front of me comes out and screams, You stupid motherfucker,' and starts kicking me through my window. He starts punching me and what I thought to be the driver . . . came out . . . and started punching me in my face while the passenger was still kicking me. I was trying to block my face. I was trying to block my face while they were kicking me and punching me." (Aff opp, exh D, pp 120).^[FN4]

Maldonado at some point identified himself as an officer: "While they are kicking me and punching me I was telling them to, Get away from me. I am an officer.' I need them away from the car. I am screaming at them . . . " Then Maldonado said, "I am trying to reach into my neck line to pull my badge out to show them I am an officer. Hoping that that will get them away. They are still kicking me and punching me. At that point that's when I heard someone . . . say, Kill em, he is a fucking cop.' " (Id.).

Continuing with Maldonado's testimony at Kenner's criminal trial: "I was able to bring my arm, that's when I saw the gentleman who was in all black reach into his waistband. As I saw him do that I went down and reached for my off duty weapon and I brought it up. That's when I got kicked in my face. That's when my gun went off." (Id., pp 120-121). The police combed the area after the shooting, and no gun was found that could have been the Kenners.

Maldonado's narrative as to what he confronted went unchallenged in its material aspects. His cross-examination at the criminal trial did not undercut his testimony as to how the attack unfolded, although there was, as in the 2009 deposition and the recent oral argument, some back and forth on whether Maldonado was punched and [*3]kicked at the same time, and whether only the car and not Maldonado was kicked.

Maldonado's testimony is backed up by that of his wife and two eyewitnesses, Jacques Carson and Martin Tew. Eugenia Maldonado, on the witness stand, testified, "I heard that they said, This is the mother fucking police, I am going to kill you . . . Kill him, shoot 'em' " (id., p 23). Maldonado recalls that his wife was crying, in "shock" and had a "dead stare" on her face (exh C, p 192). He said, "I thought these guys were going to kill me and my family" (id.). Dr. Corinne Ambrosi, who performed the autopsy on Chris Kenner, testified that the deceased was 6 feet, 4 inches tall and weighed 246 pounds.

Mr. Carson, an airport shuttle bus driver, was in his vehicle, with a view from an estimated 20 to 25 feet away, when the confrontation occurred. He testified that he saw the passenger get out of the SUV and begin punching Maldonado and then the two men from the SUV, the Kenners, were punching and kicking. Carson stated that the combined attack from the two lasted 15 to 20 seconds until he heard a gunshot, which caused the Kenners to run south on 94th Street. Carson said he could not see if Leroy Kenner was kicking inside the car, but said he saw, "more than half his body go into the vehicle," then modified it to "Well, his arm" was inside the car (exh D, pp 104-05).

Mr. Tew, employed by a car rental company, was 10 or 11 car lengths back, and while he saw punching and kicking against the Honda, was not sure whether it, especially the kicking, actually connected with the vehicle's driver. The medical evidence supports Maldonado's testimony that he had injuries to his left eye, chin, neck, chest and arm.

Maldonado testified that he could not drive away out of trouble. In fact, a grand juror had asked him:

"Q. Why didn't you drive away?

A. On the farthest right lane there were cars in front of me. The cars were coming off of the Grand Central service ramp. By that time the light was red and the cars were going on the Grand Central service ramp. There were cars in front of me.

Q. Was there any safe escape route for you to drive your car so that you and your family and - - you, your wife and your son would not be hit by an oncoming car?

A. No, No." (Exh C, p 228).

At the Kenner trial, Maldonado testified as to this practice:

" Q. Do you have any equipment that you carry with you when you're off duty?

A. Yes, I carry my off duty handgun and my handcuffs as well as my badge.

Q. Do you always carry your handcuffs?

A. Yes." (Exh D, p 141).

On the dashboard of Maldonado's vehicle was a placard about 10 by 12 inches that read, "This vehicle is on official business," as was a sticker reading "New York State Correctional Officer" and his correction officer PBA card on the dashboard by the driver's side.

This exchange with Maldonado on cross-examination took place at L. Kenner's criminal trial:

"Q. Didn't you just pull your weapon out hoping that when they saw the weapon they would just leave?

A. I would hope that they would get away and they would stop kicking me.

Q. But isn't that the reason you did it?

A. The reason I did it was to get them away from me so I would be able to get out and cuff them." (Id., p 166).

Earlier on direct examination, he had said, "When I pulled out my weapon I was telling them that I was an [*4]officer to get away from me. I was hoping they would back away from me. I would be able to get out of my car safely with my family safe and detain them" (id., pp 126-127).

In the grand jury, Maldonado testified about having his attacker[s] put his hands up:

"Q. Did you take your weapon out with the intention of using it?

A. No.

Q What was the reason you took your weapon out?

A. To order him to raise his hands." (Exh C, p 181).

Maldonado explained in his 2009 deposition: "I was expecting since they were beating an innocent man that for some reason maybe when they heard that I was an officer maybe that would make them come back to their senses and stop what they were doing" (exh E, p 61).

The Commentary to §2.10 of the Criminal Procedure Law states that: "Conceptually, today in New York State the peace officer' status connotes an official who performs a law enforcement function for an agency that does not have policing as its central mission." A peace officer like Maldonado^[FN5] can make warrantless arrests when off-duty for any offense committed in the officer's presence or for a felony when there is reasonable cause to do so. CPL § 140.25.3. For their part, police officers have an affirmative duty to enforce the law at any time, anywhere.^[FN6]

The authority and responsibility of a peace officer or police officer may differ, but in these kinds of encounters, the standard for imputing such officer's off-duty actions to his or her employer is the same, and asks whether they were "acting wholly in furtherance of their own personal interests." Schilt v New York City Transit Authority, 304 AD2d 189, 195 (1st Dept 2003). The same standard was relied upon by the Second Department, which cited Schilt,in Beauchamp v City of New York, 3 AD3d 465, 466 (2004): "where an employee's actions are taken for wholly personal reasons, which are not job related, his or her conduct cannot be said to fall within the scope of employment . . ."

In the First Department case, Mr. Schilt and another vehicle driven by an off-duty New York City transit officer were traveling in the same direction on an expressway and while the two had different versions of who cut off whom, who was driving erratically and who punched first, the court ruled that plaintiff was pulled over to obtain personal information in order to hold him financially responsible for damage to the officer's car, and " that defendants' brief display of their badges, without more, is simply insufficient to create a triable issue of fact as to whether they were acting within the scope of their employment . . . " 304 AD2d at 195.^[FN7] The Schilt court cited a [*5]number of cases where summary judgment motions determined that the actions of police officers and correction officers could not be imputed to their employer because such actions were wholly personal in nature. Pekarsky v City of New York, 240 AD2d 645 (2d Dept 1997), lv denied 91 NY2d 806 (1998); Stavitz v City of New York, 98 AD2d 529 (1st Dept 1984); Seymour v Gateway Prods., 295 AD2d 278 (1st Dept 2002); and Davis v City of New York, 226 AD2d 271 (1st Dept 1996). The latter two cases - - Seymour and Davis - - involved the actions of correction officers.

Maldonado deferred to the police when it came to officially dealing with the Kenners. After his gun went off, he heard someone say run and Maldonado moved quickly behind his vehicle and saw both brothers running. He wrote down their license plate and asked someone for a cell phone to call 911; when the bystander reached them, he handed the phone to Maldonado who told the operator what happened.

Chris Kenner was badly wounded and Leroy Kenner walked back to the scene in an effort to have his brother medically attended to. By this time, members of the New York City and Port Authority police departments were on the scene; Maldonado pointed out Leroy Kenner to them, who was questioned and arrested.

Maldonado did not try to arrest anyone; he was trying to get the Kenners to leave him and his family alone. He took out his badge to get them to stop assaulting him. They did not stop, and he ultimately drew his gun. Maldonado testified at his deposition that he had never before arrested or detained anyone or even pulled out his badge. He had never drawn or fired his gun, except at the practice range.

With the Department, there were only a few times a year when Maldonado carried a gun as part of his correction officer duties. His right to carry, and responsibilities thereunder, are governed by Penal Law §265.20.a.1(c), which exempts peace officers from restrictions on possessing firearms that would otherwise apply; the training requirements of the State Division of Criminal Justice Services (Executive Law article 35); DOCS Directive 2020; and 7 NYCRR, Part 57 - Firearms. Having a windshield placard, wearing a badge under his shirt, carrying handcuffs and a gun does not impute an off-duty action to that of the employer where the activity, like Maldonado's, was wholly personal in nature and not job-related.

This Court is not persuaded otherwise by the references Maldonado made in his testimony before the grand jury and at trial, in which he talked about getting the attacker[s] "to raise his hands;" hoping to "detain them;" and being "able to get out and cuff them." Nor am I persuaded by the cases claimant cites in the affirmation in opposition; they are distinguishable from what happened here:

Graham,discussed above in footnote 7; Frazier v State of New York, 64 NY2d 802 (1985; an off-duty state correction officer, pursuing two men who had just robbed him, fired at them and hit a bystander, the plaintiff); Mon v City of New York, 78 NY2d 309 (1991; involved shots fired by an off-duty New York City police officer who was trying to apprehend Mr. Mon, although the central issue was whether the City was negligent for overlooking an arrest the officer had before he was hired); Beauchamp, supra (in denying summary judgment to the defendant, the Second Department held that that there were issues of fact as to whether the force used by several off-duty NYC Housing Authority police officers against plaintiffs was for purely personal reasons, or whether such force was within the scope of their employment while investigating allegations of marijuana possession); Figueroa v New York City Housing Authority, 232 AD2d 293, 294 (1st Dept 1996; the court affirmed the denial of summary judgment to defendant in this case involving a traffic dispute: "Even if off-duty at the time . . . the officer's actions, which allegedly included his identifying himself as a police officer, displaying his badge, telling plaintiff to hand over a gun he mistakenly believed plaintiff was carrying, searching and detaining plaintiff, summoning the New York City police as backups, and holding plaintiff at gunpoint until the backups arrived, could indicate that he was acting within the scope of his official duties").

In sum, as to respondeat superior, no material facts remain in this case for the trier of fact, and the relevant case law supports the defendant's position that Maldonado was not acting in the course of his employment.

Claimant has not created a record with respect to whether the Department negligently hired, trained, supervised or retained Emilio Maldonado. It has not been shown that he missed or performed poorly in any required [*6]training, or violated the Off-Duty Firearms Regulation; nor has claimant been able to point to any area where supervision failed, for example if DOCS knew or should have known of any incident or test that would call into question his actions under pressure.

Claimant submits an expert affidavit from Edward Mamet, a retired New York City Police Department captain and detective, who has also been a professor of criminal justice (aff opp, exh A). In Mr. Mamet's expert opinion, Maldonado used excessive force, but given the Court's finding above on respondeat superior, that issue is not reached in this forum. In addition, Mamet contends that Maldonado must have had his finger on the trigger when he drew his gun. Such would have been negligent and reckless under the circumstances according to the expert (id., ¶13), but Mamet makes no connection to inadequate training by the State.

Finally, claimant argues that the State is liable under 42 USC §1983; however, the Court of Claims, unlike Supreme Court, does not have jurisdiction over such cause of action. Brown v State of New York, 89 NY2d 172 (1996).

In view of the foregoing, the motion of defendant State of New York (M-80428) is granted, and the Clerk of the Court is directed to dismiss claim no. 115104.

New York, New York

August 21, 2012

ALAN C. MARIN

Judge of the Court of Claims