Court won't reinstate Marcelo Lucero family's lawsuit

A police officer, left, and Suffolk County Executive

A police officer, left, and Suffolk County Executive Steve Levy, center, greet Marcelo Lucero's mother, Rosario, standing next to Marcelo's brother, Joselo, at a service in St. Francis De Sales Church to mark the first anniversary since the killing of Marcelo. (Nov. 8, 2009) (Credit: Audrey C. Tiernan)

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A panel of three federal judges has refused to reinstate a $40 million civil rights lawsuit filed by the family of Marcelo Lucero, killed five years ago in Patchogue by a pack of youths targeting Hispanics.

Lucero's family had appealed last year's decision by U.S. District Judge Leonard Wexler to toss out the suit, which accused Suffolk County and the police department of an "indifferent and unconstitutional failure" to protect immigrants.

The process server hired by the estate's attorneys had mistakenly served a state court building, not the county clerk as required by law, and Wexler declined to extend the time limit to fix that problem.

In agreeing with Wexler, the three judges from the Second U.S. Circuit Court ruled estate administrator Luis Almonte had not given a "reasonable excuse for his inaction and delay" in serving papers.

While Almonte argued that it was a simple mistake by the process server, he knew by December 2011 about the problem and didn't ask for more time until almost a year later, after the case had been closed, the judicial panel wrote.

A county spokeswoman acknowledged the court's decision but offered no additional comment.

Almonte could not be reached Monday night, but the family's attorney, Frederick K. Brewington, called the decision disappointing, and said, "it does not change the failures of Suffolk County in protecting Hispanic members of its community."

Lucero, an Ecuadorean immigrant, was walking with a friend when he was attacked by seven teens looking to assault Hispanic immigrants.

One of the attackers, Jeffrey Conroy, stabbed Lucero, 37, killing him. Conroy is serving a 25-year prison sentence after being convicted by a jury of first-degree manslaughter as a hate crime. The other six defendants are serving sentences ranging from 5 to 8 years.

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