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2 shot near Empire State Building poised to sue city

Empire State Building shooting victim Robert Asika, 24,

Empire State Building shooting victim Robert Asika, 24, who sells tickets to the Empire State Building's observation deck, leaves Bellevue Hospital. (Aug. 24, 2012) Credit: Kevin P. Coughlin

Two bystanders injured by police gunfire in last month's fatal shooting of a gunman outside the Empire State Building have taken steps that could lead to lawsuits against the city.

Robert Asika, 24, and Mark Logossou, 35, each filed a notice of claim with the city comptroller a week ago as prelude to a possible lawsuit, their attorney Michael S. Lamonsoff said Tuesday.

Asika works as a ticket seller for the observation deck of the Empire State Building and Logossou also works in the area, Lamonsoff said. They were both in the vicinity when two counterterrorism officers fired 16 times at a gun-toting Jeffrey Johnson, an out-of-work fashion designer who had just fatally shot former co-worker Steven Ercolino, 41, on 33rd Street, police said.

Nine people were hit by shrapnel from police rounds, suffering nonlife-threatening injuries.

Three of the bystanders were struck by whole bullets fired by the officers, while six others were grazed "by fragments of some sort," Police Commissioner Ray Kelly said.

Surveillance videos show that Johnson, 58, pulled his .45-caliber handgun out of a satchel on Fifth Avenue and pointed it directly at the cops who then fired at him as bystanders fled for cover.

"The [question] that really comes to mind is amount of bullets fired . . . the other question is the training," said Lamonsoff. "If 16 bullets are excessive or the manner of discharge not accurate enough then certainly we should take a look at training given to police."

A spokesman for Comptroller John Liu said the office doesn't comment about claims under investigation. The city has 90 days to investigate claims and make possible settlements. Injured parties then have a year to file lawsuits.

The NYPD has said the officers fired appropriately.

Sanford Rubenstein, a plaintiffs attorney not involved in the cases, said the law allows bystanders to recover for injuries from police shootings when officers are shown to have violated police guideline and unnecessarily endangered civilians.

"I would suggest that these are not easy cases to win," Rubenstein said.

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