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Judge Wexler Decision

Judge Wexler Decision

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Published by Newsday

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Published by: Newsday on Nov 07, 2011
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UNITED STATES DISTRICT COURT FOR THEEASTERN DISTRICT OF
NEW
YORK
------------------------------------------------------------)(
LUIS ALMONTE, individually and asAdministrator
of
the Estate
of
MarceloLucero alk/a Oswaldo Lucero,Plaintiffs,--against--SUFFOLK COUNTY,SUFFOLK COUNTY POLICEDEPARTMENT, TOWN OFBROOKHAVEN,TOWN OF BROOKHAVENDEPARTMENT OFPUBLIC SAFETY,VILLAGE OF PATCHOGUE,VILLAGE OF PATCHOGUE OFFICE OFPUBLIC SAFETY AND CODEENFORCEMENT, UNKNOWN POLICEOFFICERS 1-10Defendants.
------------------------------------------------------------)(
APPEARANCES:Law Offices
of
Frederick
K.
Brewington
By:
Frederick
K.
Brewington, Esq.Guy William Germano, Esq.556 Peninsula BoulevardHempstead,
NY
11550Attorneys for PlaintiffFaga Savino LLPBy: Kevin B. Faga, Esq.Law Office
of
Richard St. Paul, Esq.By: Richard E, St. Paul, Esq.399 Knollwood RoadSuite
301
White Plains, NY I 0603Attorneys for Plaintiffs
FILED
IN OLE!!K'S
OFF!OE
u.e.
DI~T<liGT
COURT,
E.OJN.Y•
*
·-
·
r<~
2011
*
'·~
I )
LONG
ISLAND OFFICE
MEMORANDUM AND ORDER10-CV-5398
(LDW)
Case 2:10-cv-05398-LDW-ARL Document 29 Filed 11/02/11 Page 1 of 12 PageID #: 241
 
Goldberg Segalla LLP
By:
Brian
W.
McEJhenny, Esq.Christopher M. Hart, Esq.200 Old Country Road Suite
21
0Mineola, NY 11501Attorneys for Defendants Town
of
Brookhaven and Town
of
Brookhaven Department
of
SafetySokoloff Stem LLPBy: Adam
I.
Kleinberg, Esq.Brian
S.
Sokoloff, Esq.Leo Dorfman, Esq.355 Post Avenue Suite 201Westbury,
NY
11590Attorneys for Defendants Village
of
Patchogue andVillage
of
Patchogue Office
of
Public Safety and Code EnforcementWEXLER, District Judge:Plaintiff Luis Almonte brings this action both individually and in his capacity as theAdministrator
of
the estate
of
Marcelo Lucero a!k/a Oswaldo Lucero ("Lucero" or "Plaintiff'sDecedent"). Plaintiff asserts a civil rights claim pursuant to 42 U.S.C. §1983 ("Section 1983"),and state
Jaw
claims
of
negligence. Plaintiffs' claims arise out
of
the death
of
Marcelo Lucero("Lucero"), Plaintiff's decedent, who was attacked and killed while walking in the Village
of
Patchogue on the night
of
November 8, 2008. The individuals who attacked Lucero are notDefendants in this action. Here, Plaintiff names as Defendants:
(I)
the County
of
Suffolk, (2) theSuffolk County Police Department (collectively "County Defendants"), (3) the Town
of
Brookhaven, (
4)
the Town
of
Brookhaven Department
of
Public Safety (collectively the "TownDefendants"), (5) the Village
of
Patchogue, and (6) the Patchogue Office
of
Public Safety andCode Enforcement (collectively the "Village Defendants"). The only individual Defendants areunnamed "John Doe" defendants referred to as "Unknown Police Officers 1-10."Plaintiff's sole federal claim, that set forth pursuant to Section 1983, is based upon the
2
Case 2:10-cv-05398-LDW-ARL Document 29 Filed 11/02/11 Page 2 of 12 PageID #: 242
 
alleged violation
of
Lucero's substantive due process liberty interest as secured by the FourteenthAmendment to the United States Constitution. The state law claims sound in negligent hiringand training
of
police officers. Plaintiff seeks damages for the Section 1983 and negligenceclaims stemming from Lucero's conscious pain and suffering, medical expenses incurred prior tohis death, and in the nature
of
wrongful death for loss
of
Lucero's income and services and forfuneral and burial expenses.Presently before the court are the motions
of
The Town and Village Defendants, pursuantto Rule 12(b)(6)
of
the Federal Rules
of
Civil Procedure, to dismiss the complaint. For thereasons that follow, those motions are granted.BACKGROUND
I.
The Allegations
of
the ComplaintThe factual allegations set forth below are drawn from Plaintiffs' complaint, arepresumed true and construed in the light most favorable to Plaintiff for the purpose
of
decidingthese motions to dismiss.Marcelo Lucero was an individual
of
Hispanic descent who immigrated to this countryfrom Ecuador.
On
or
about the evening
of
November 8, 2008, Lucero completed work and waswalking in the vicinity
of
the intersection
of
Railroad Avenue and Stephen Street in the Village
of
Patchogue, which is located within
the
Town
of
Brookhaven. During that walk, Lucero wasattacked by a group
of
white teenagers.
The
individuals attacking Lucero used racial slurs andbegan the attack
by
beating Lucero. The attack escalated and one
of
the individuals involvedstabbed Lucero, who was left in the street to die.3
Case 2:10-cv-05398-LDW-ARL Document 29 Filed 11/02/11 Page 3 of 12 PageID #: 243

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