Donte Mills, of the law firm Mills & Edwards, filed his complaint with the Supreme Court of the State of New York on Dec. 5, rather than a lower jurisdiction because, as the complaint states, the plaintiff seeks damages greater than they could grant.
The complaint gives Penny 20 days to respond, or 30 days at the outer limit, and threatens him with a default judgment if he does not meet the deadline.
Neely, a mentally ill homeless man, died on May 1, 2023, after Penny put him into a headlock and wrestled him to the ground on an uptown F train.
Penny’s trial on charges of manslaughter and criminally negligent homicide began with jury selection at the end of October and is now nearing its end, as the jury moves ahead with a third day of deliberations, following the defense lawyers’ and prosecutors’ summations earlier in the week.
Witnesses have been unanimous that the incident began when Neely came onto the train at the Second Avenue station and began shouting that he was hungry, homeless, and did not care if he went back to prison.
Some witnesses have further testified that the incident caused them more fear for their safety than anything they had experienced before while riding the subway.
The complaint does not recapitulate any of the events leading up to the confrontation between Neely and Penny or explain why Penny might have had concerns for the safety of passengers on the subway.
The complaint alleged that Neely “was negligently contacted by the defendant, Daniel Penny,” and suffered injuries and death as a result. The complaint further blames the injuries and death on “the negligence, carelessness, and recklessness of the defendant.”
The complaint does not specify the amount of damages sought, instead claiming “damages against the defendant in an amount that exceeds the jurisdictional limits of all lower courts in the state of New York which would otherwise have jurisdiction over this matter.”
A verdict is expected soon in the trial, though some also anticipate the possibility of a hung jury.
On Dec. 5, the jury came back into the courtroom to listen to two people read out a lengthy portion of the defense’s cross-examination of medical examiner Dr. Cynthia Harris, who took the stand last month to argue that Neely’s death was asphyxial and a direct consequence of Penny’s chokehold.
The passages from the trial transcript read aloud in the courtroom dwelt extensively on discussions that Harris testified to having had with other medical personnel about identifying Neely’s cause of death after his autopsy.
At a number of points in that exchange, Harris answered questions that probed whether she had sufficient grounds for attributing Neely’s death to asphyxiation and whether she had given careful consideration to factors such as Neely’s schizophrenia, sickle cell trait, and habit of smoking cigarettes daily.
Deliberations were briefly paused on Dec. 4 when the judge and prosecutors admitted to having had difficulty finding a portion of the transcript that the jury had asked to hear.
The judge then asked the jury to reformulate its question, leading to Thursday’s reenactment and reading aloud from the cross-examination.
Since beginning its deliberations on Dec. 3, the jury has also made separate requests to rewatch portions of cell phone footage taken at the scene of the incident and footage of Penny’s police interview afterward, and for a clarification of the judge’s instructions regarding justifiable force.
Neither Mills nor Penny’s lawyers responded by publication time to a request for comment.
