Rosario Lucero, center, stands with son Joselo Lucero, left, near...

Rosario Lucero, center, stands with son Joselo Lucero, left, near the site where her other son Marcelo Lucero was stabbed to death in 2008, in Patchogue, N.Y., after his killer, Jeffrey Conroy, was convicted of manslaughter as a hate crime but acquitted of murder. (April 19, 2010) Credit: AP

A federal judge has thrown out a $40-million lawsuit against Suffolk County and its police department in connection with the 2008 hate-crime killing of Ecuadorean immigrant Marcelo Lucero.

The order from U.S. District Judge Leonard D. Wexler, issued last Thursday but dated that Monday, affirms a magistrate's earlier finding that county and police officials were not properly notified of the lawsuit.

Joselo Lucero, the victim's brother, said Monday that his family is upset that the case was closed before their claims could be heard in court. He vowed to seek "other options."

"Honestly, I have no words to react to this decision," Lucero, 37, said. "If we have to take these documents to a higher court to have the case heard, we are going to do it."

Vanessa Baird-Streeter, a spokeswoman for Suffolk County Executive Steve Bellone, said in a statement that officials are "pleased" with the ruling, adding that it "supports our continuous contention that the County was not served properly."

The lawsuit stems from an attack in Patchogue in November 2008 that put a spotlight on increasing tensions involving the county's growing immigrant population.

Marcelo Lucero had been walking with a friend when he was attacked by seven teenagers 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. A U.S. Department of Justice Civil Rights Division inquiry into Suffolk County policing is ongoing. A civil lawsuit filed by the Lucero estate against the teens and their parents is pending in state court.

The federal suit, filed in 2010, claimed Lucero's murder was the result of county government and police department "indifferent and unconstitutional failure" to provide equal protection for immigrants. Claims against the Patchogue and Brookhaven were dismissed in November.

In ruling the case should be "closed," Wexler agreed with a May 16 magistrate judge's conclusion that process server Richard Blum, hired by the Lucero estate's lawyers, delivered the summons and complaint to the wrong place -- a state criminal court building rather than the county clerk's office.

"In view of the fact that the R&R [report and recommendation] holds that the county Defendants were never properly served, no Defendants remain herein," Wexler wrote, directing court officials "to close the file in this matter."

Wexler also wrote in his order that the Lucero estate -- represented by attorneys Kevin Faga of White Plains and Frederick Brewington of Hempstead -- did not object to the magistrate report's findings within the 14 days to register objections. A three-year statute of limitations has expired, preventing the lawsuit from being refiled.

Faga did not comment, while Brewington said he filed a request with the court and that he is "anxiously awaiting a response."

In a letter filed on June 14, Brewington asks the judge to use his discretion to allow more time to serve the county and put the case back on the court's calendar.

A case with such serious allegations about government and policing shouldn't just go away, some Latino advocates said.

"The Lucero family and the people of Long Island deserve to have a hearing on this very serious civil rights issue," said David Mejias, president of the Long Island Hispanic Bar Association. "To deny that on a technicality is an injustice."

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