An attorney representing the wife and the estate of a man who was shot and killed last year by an off-duty SEPTA cop filed a civil suit in Montgomery County Court yesterday against the cop and SEPTA.

Although District Attorney Risa Ferman's criminal investigation into SEPTA Police Sgt. Darryl Simmons' actions on Sept. 17 remains open, in his suit Michael van der Veen, the lawyer representing Naima McNair and her deceased husband, Joseph, said Simmons' actions that night were "done with evil motive" and "reckless indifference."

Assistant District Attorney Kevin Steele yesterday declined to comment on the case, citing the ongoing investigation. He said his office was unaware that a civil suit had been filed.

Simmons, 48, shot McNair, 38, five times - once in the face and four times in the chest - following a verbal argument between the neighbors on a public road in their Perkiomen Township development. Simmons claimed that he had shot McNair in self-defense, afraid that McNair, who had served time in federal prison on drug charges, was reaching for a gun.

"Clearly, my client thought his life was in danger, and that's why events occurred the way they did," said Charles Mandracchia, Simmons' attorney.

He declined comment on the civil suit, saying he hadn't read it.

No gun belonging to McNair was found and in February, McNair's family released a voice mail recording that captured the argument leading to his death.

In the tape, the two men can be heard exchanging profanities about a long-standing feud involving McNair's dogs.

After shooting McNair, Simmons does not immediately call 9-1-1. Instead, he can be heard calling someone else and saying: "Hey. I just shot and killed this b----."

"The audio tape reveals that Mr. McNair was at no time an aggressor and that he in no way provoked the drawing and firing of a gun," van der Veen said. "The conversation on the tape sounds like two kids in high school arguing."

In the suit, van der Veen said that the gun was Simmons' SEPTA-issued weapon, though that has not been confirmed by police.

Although he declined to elaborate pending further investigation, in the suit van der Veen also alleges that SEPTA should have been aware of "previous, unruly, dangerous" behavior by Simmons and that they failed to ensure he used the gun only for "legitimate purposes."

SEPTA spokeswoman Jerri Williams said Simmons remains on administrative duty, but declined comment on the civil suit.

Van der Veen said that "the power of subpoena" granted by the court in civil cases will allow him to collect the evidence, documents and information he needs to prove his claims.

While he has "absolute faith" in the ongoing criminal investigation, van der Veen said he filed the civil suit to protect his client.

"I think it's important our own, independent investigation is undertaken so we've collected evidence before it disappears," he said. "Documents can be lost, witnesses' memories can fade."

Although the amount of damages in state civil suits are determined by the jury, van der Veen is seeking damages in excess of $50,000. *