SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

253 

CA 15-01290 

PRESENT: PERADOTTO, J.P., LINDLEY, DEJOSEPH, CURRAN, AND SCUDDER, JJ. 

 

JEAN BRIDENBAKER AND GARRY K. CONNORS, AS 

ADMINISTRATORS OF THE ESTATE OF MATTHEW RYAN 

CONNORS, DECEASED, PLAINTIFFS-RESPONDENTS,

V MEMORANDUM AND ORDER

CITY OF BUFFALO, BUFFALO POLICE DEPARTMENT AND 

OFFICER JAMES T. REESE, DEFENDANTS-APPELLANTS. 

 

TIMOTHY A. BALL, CORPORATION COUNSEL, BUFFALO (ROBERT E. QUINN OF

COUNSEL), FOR DEFENDANTS-APPELLANTS.

HOGAN WILLIG, PLLC, AMHERST (STEVEN M. COHEN OF COUNSEL), FOR

PLAINTIFFS-RESPONDENTS. 

 

Appeal from an order of the Supreme Court, Erie County (John L.

Michalski, A.J.), entered October 29, 2014. The order, among other

things, denied defendants’ motion for summary judgment dismissing the

amended complaint. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: Plaintiffs commenced this action seeking damages

arising from the death of their son (decedent), who was shot and

killed by defendant Officer James T. Reese, an officer employed by

defendant Buffalo Police Department. The amended complaint asserts

causes of action for wrongful death, conscious pain and suffering,

negligent hiring, training, and supervision, battery, and the

violation of decedent’s constitutional and civil rights pursuant to 42

USC § 1983, based on the alleged use of excessive force by Officer

Reese in attempting to arrest decedent for robbery. Defendants moved

for summary judgment dismissing the amended complaint, and plaintiffs

moved to compel production of Reese’s entire employment file for in

camera review. Supreme Court denied defendants’ motion and granted

plaintiffs’ motion. We affirm. 

The record establishes that, shortly before he was shot by Reese,

decedent was seen by several witnesses brandishing what appeared to be

a large handgun while robbing a pharmacy. Witnesses saw decedent

leaving the scene of the robbery in a vehicle, the license plate

number of which was conveyed to police. Reese and other officers

responded to the address to which the vehicle was registered, and

Reese was informed that decedent had just arrived and had run to his
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CA 15-01290 

upstairs apartment. According to Reese, he followed decedent into his

apartment, and decedent spun around and pointed what appeared to be a

large handgun at him. Reese grabbed the gun with his left hand and a

struggle ensued, during which decedent allegedly yelled that Reese was

“going to have to kill” him. As decedent turned, Reese began to lose

his grip on the gun and started to fall. Reese, allegedly fearing for

his life, fatally shot decedent in the back with his service weapon,

which was in his right hand. The weapon in decedent’s hand turned out

to be a pellet gun.

We conclude that the court properly denied defendants’ motion for

summary judgment dismissing the amended complaint. Defendants have

abandoned on appeal any contention with respect to the negligent

hiring, training, and supervision cause of action (see Ciesinski v

Town of Aurora, 202 AD2d 984, 984), and the remaining causes of action

are based on the alleged excessiveness of the force used by Reese in

his confrontation with decedent. “Claims that law enforcement

personnel used excessive force in the course of an arrest are analyzed

under the Fourth Amendment and its standard of objective

reasonableness” (Ostrander v State of New York, 289 AD2d 463, 464; see

Williams v City of New York, 129 AD3d 1066, 1066). “The use of force

must be judged ‘from the perspective of a reasonable officer on the

scene, rather than with the 20/20 vision of hindsight,’ recognizing

that ‘police officers are often forced to make split-second

judgments—in circumstances that are tense, uncertain, and rapidly

evolving—about the amount of force that is necessary in a particular

situation’ ” (Holland v City of Poughkeepsie, 90 AD3d 841, 844,

quoting Graham v Connor, 490 US 386, 396-397). The decision to use

deadly force will be deemed objectively reasonable if the officer has

probable cause to believe that the person against whom it is used 

“ ‘poses a significant threat of death or serious physical injury to

the officer or others’ ” (Williams, 129 AD3d at 1067). “If found to

be objectively reasonable, the officer’s actions are privileged under

the doctrine of qualified immunity” (Holland, 90 AD3d at 844). 

Defendants, relying on Reese’s version of the confrontation, met

their initial burden of demonstrating as a matter of law that Reese’s

use of deadly force against decedent was objectively reasonable and

protected by qualified immunity. We conclude, however, that the court

properly denied defendants’ motion because plaintiffs raised a triable

issue of fact. In cases such as this, “given the difficult problem

posed by a suit for the use of deadly force, in which ‘the witness

most likely to contradict [the police officer’s] story—the person shot

dead—is unable to testify[,] . . . the court may not simply accept

what may be a self-serving account by the police officer.’ . . .

Rather, the court must also consider ‘circumstantial evidence that, if

believed, would tend to discredit the police officer’s story, and

consider whether this evidence could convince a rational factfinder

that the officer acted unreasonably’ ” (O’Bert v Vargo, 331 F3d 29,

37). Furthermore, it is well settled that our function on a motion

for summary judgment is issue finding, not issue determination (see

e.g. Potter v Polozie, 303 AD2d 943, 944).

As plaintiffs contend, there is evidence in the record that
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decedent, who had suffered allegedly disabling back injuries in a car

accident, may have been physically incapable of engaging in the

struggle described by Reese. The record also includes a statement

from another police officer, in which he stated that Reese had told

him that decedent beat Reese with the gun. That statement contradicts

Reese’s testimony that he immediately grabbed the gun when decedent

spun around and faced him with it. Further, Reese’s captain allegedly

told decedent’s father immediately after the shooting that the

shooting had been an “accident,” as opposed to a justified shooting. 

Finally, although Reese testified that he had never met decedent

before the shooting, other witnesses asserted not only that Reese had

met decedent, but that he had beaten decedent and harassed him in the

months leading to the shooting because of an altercation that decedent

allegedly had with Reese’s wife. 

Finally, we conclude that the court did not abuse its “broad

discretion to control discovery” by granting plaintiffs’ motion to

compel production of Reese’s entire personnel file (Voss v Duchmann,

129 AD3d 1697, 1698). 

Entered: March 25, 2016 Frances E. Cafarell

Clerk of the Court