A $40-million federal lawsuit against Suffolk County and its police department in connection with the 2008 killing of Ecuadorean immigrant Marcelo Lucero may be in jeopardy because government officials were never officially notified of the legal action, according to court filings.
A process server hired by the Lucero estate's attorney delivered the summons and complaint to the wrong place, according to a U.S. magistrate judge's review.
County officials claimed in a February court filing that the Lucero attorneys never properly served notice of the lawsuit. That claim led to a review by Judge Gary R. Brown, who concluded in a May 16 report that the Lucero estate "has entirely failed" to meet the legal notification requirement.
U.S. District Court Judge Leonard D. Wexler, who is overseeing the case, will review Brown's report and determine whether the case ends or can proceed.
The lawsuit, filed in November 2010, claimed that the county and police department exhibited a "deliberately indifferent and unconstitutional failure" to provide equal protection for immigrants. Lucero, 37, was attacked by a group of teenagers in Patchogue in November 2008. He was fatally stabbed by one of them in what law enforcement officials deemed a hate crime.
The victim's brother, Joselo Lucero, said he is upset about the botched notification, but he doesn't think that misstep should release officials from responding to the lawsuit.
"I believe that Suffolk County, and especially the police department, cannot hide behind a technicality or a simple mistake," Lucero, 37, said. "They have to take responsibility for what happened with the immigrant community, and especially with my brother."
Rules that govern civil actions in federal court require that legal notices be delivered within 120 days of a lawsuit's filing, primarily to give defendants time to examine allegations and respond.
According to Brown's report, Lucero attorney Kevin Faga hired process server Richard Blum, who in December 2010 may have taken the summons and complaint to a state Criminal Court building in Riverhead rather than the county clerk's office.
Blum could not be reached for comment. A man who answered a telephone associated with Blum's Pro-Serve business in Yonkers said Blum had moved out of state.
Lucero attorneys Faga, based in White Plains, and Frederick K. Brewington, based in Hempstead, did not comment. Neither did Suffolk police.
Vanessa Baird-Streeter, a spokeswoman for Suffolk County Executive Steve Bellone, said the county "did bring it to the attention of the court that we were not served appropriately," but added that officials would wait for Wexler's decision before commenting further.
A lawyer not involved in the lawsuit said that not properly serving the county and police could end the case. "If it's not properly served, there is no jurisdiction and the lawsuit is out," said Anthony J. Colleluori, an attorney in Melville.
The three-year statute of limitations on the Lucero case expired in November, preventing the family's attorneys from simply refiling and delivering notices to the county and police.
Colleluori said Wexler may allow the case to proceed because of the seriousness of allegations about civil rights violations that "strike to the heart of our Constitution."
Joselo Lucero said he wants the case to be heard "not just for my brother, but for many people who have been affected."
In November, Wexler dismissed parts of the case against the Town of Brookhaven and the Village of Patchogue because those governments do not have their own police departments. The suit also names 10 unknown Suffolk police officers as defendants.