In a decision that advances the prospects for a big verdict against Suffolk County, a state appeals court has ruled that a nonmarital son who was in utero at the time his father was killed by county police can sue to collect his dad's prospective lifetime earnings.
The county had claimed that the lawsuit on behalf of the 8-year-old son of Jose Colon, 20, who was killed in what Suffolk police say was an accident during a 2002 drug raid, should be disallowed because any financial loss to an unborn child was too speculative.
But a four-judge panel of the state Appellate Division in Brooklyn said that Jose A. Feliciano-Colon, the son of Tiana Feliciano, should be allowed to sue because "paternity has been established by clear and convincing evidence . . . and the father openly and notoriously acknowledged the child as his own."
The tragic episode underlying the lawsuit unfolded on April 19, 2002. Police said Colon was shot in the head when two officers approaching a house in Bellport on a drug raid bumped into one another and one accidentally discharged three shots from his submachine gun.
Colon's mother is suing on behalf of his estate, and his son's mother is pursuing the case on behalf of the child. But the estate can only collect limited damages for the pain and suffering of Colon, who died immediately. The son is the only one eligible to collect for Colon's lost wages - estimated at $1.35 million by an economist.
"It was very important to the lawsuit," said Michael Buffa of the Holtsville law firm Rosenberg & Gluck, which is representing both plaintiffs. "The decision allows the child to continue his claim for loss of earnings."
County attorney Christine Malafi's office had no comment on the decision.
The case did not set a legal precedent and was not the first in New York to allow an in utero child to collect, Buffa said. But frequently, he said, such cases founder over the requirement of proof that a deceased parent had "openly and notoriously acknowledged" the child.
In addition to a DNA test establishing paternity, the court said, the key to the ruling was an affidavit from Michael Carrasquillo, a friend of Colon, indicating that Colon had spoken freely about the unborn child in the days leading up to the killing.
"Carrasquillo stated that the decedent had advised him, a few days prior to his death, that Feliciano was pregnant with his child and had indicated that he intended to be there for the baby," the judges noted. "Notably, the decedent spoke to Carrasquillo in the presence of others and did not indicate that the information was to be kept secret."
Earlier this year, the court said, the State Legislature loosened the requirements in such cases. In the future, any evidence of paternity - either a test or "open and notorious" acknowledgment - will be sufficient, but both will not be required.
A trial date has not been scheduled for the lawsuit. The decision was first reported in the New York Law Journal.