Published on:

Petitioners File a Late Notice of Claim with New York Appellate Court


It was a fateful day of April 18, 2007 when a mother, her companion, and a home health care worker were murdered by her own twenty-year-old son criminal who committed suicide after he accomplished the bloody murders that involved his own mother and companions. The petitioner is the victim’s seven-month-old son, brother of the murderer and sole heir who was not there when the murders happened in his family. The other petitioner is the father of the sole heir and who is now appointed as administrator for the estate of the decedent.

The petitioners made a motion for leave of court in May 2008 in order to file a late notice of claim charging infliction of emotional anguish, remiss in supervision, wrongful death, as well as gross neglect on the part of the police department. The city contradicted the said petition as it ascertains to all possible causes of action other than the claim with association to that of wrongful death.

By the order which is dated specifically on May 20, 2008, the court vehemently denied the said petitioner’s motion as it applied to to all causes of action other than that of the claim pertaining to wrongful death, because there was too much delay in the time that it was filed while plaintiff requested letters of administration from that of the Surrogate’s Court. In lieu with this, the court found that the petitioner generally failed to establish and further substantiate that a so-called special kind of relationship actually occurred between the decedent and that of the police department which would actually allow the latter to be held accountable to the former for gross negligent implementation of government function like providing due police protection.

The Court of Appeals agreed and found that there is indeed a special duty of defense that existed with that of the police department and further stated that this kind of special protection exists in such viable extraordinary circumstances.

The petitioners have now filed a motion of their desire to renew the application for the late notice of claim which is in behalf of the minor claimant and petitioner. In connection to this renewal of claims, the petitioners have submitted new evidence to the court, this specifically include documents from the police department which is in pursuant to the Freedom Of Information Law (FOIL.) Furthermore, the petitioners explicitly contend that these particular documents presented demonstrate what is connoted as supervisory neglect and gross disregard to the Domestic Violence Prevention Act; attributing liability to the defendants and breaking the duty of care to the victim as well as her son and infant claimant. All of these efforts for renewal of claims as well as the new evidences presented brought something positive to the petitioners as their motion for leave to make the renewal of claims is granted by the courts.

Consequently, in April 2, 2008; with the renewal granted, the petitioners in aid of FOIL requested relevant information from varied government agencies regarding the murder suicide or crime of passion that happened in April 18, 2007 which sadly involved four people; and that two of them is a mother and her son; wherein the son is the murderer. The crime took place at the Cambria Heights Queens which involved the tragic and bloody deaths of four people. The petitioners obtained all complaint reports as well as other documents that pertain to that of the murder suicide from the police department. They also consolidated the individual photographs of the crime scene and other evidences as well as the 911 calls recorded from the murders.

In a letter that was dated April 22, 2008, the legal bureau of the police department replied to the corresponding FOIL request of the petitioners. The police department denied it and stated that it was too broad in nature or otherwise; the request is said to be very general and not pertaining to a specific type of document or query which could be very difficult to find in that state. Subsequently; after the denial of their request, the petitioners made an appeal towards the original decision; and the police department again responded with a letter dated May 23, 2008; stating that they denied the petitioner’s appeal on the said original decision they have made with the same reasons quantified as stating that the said request was too general and that further, the said request failed to specifically describe in detail the particular record wanted so as to facilitate easy management or file retrieval by the police department.

More so, on April 22, 2008, the petitioners also received due correspondence from the District Attorney’s Office which states that if they are able to give proper and due payment, the office would be able to release said twenty four pages of information relevant to their FOIL request, stating further that eight of which of these pages were newspaper clippings on the murders as well as declaring that the other information which are requested by the petitioners is seen to be exempted from the coverage of FOIL for varied reasons. These reasons though were not much elaborated as to why it was deemed categorically exempted from FOIL.

The petitioners submitted supporting documents for their application which comprises four police domestic incident reports (DIRs) which are relatively obtained through FOIL coverage, which comprehensively documented the decedent’s disputes with her son before he actually murdered her. These were very detailed information from the police in their response to the reports of the complainant at the different separate incidents of reports documented.

One DIR exposes that the police department have actually responded to a radio run on May 30, 2006. The form relatively shows a series of questions for the police and the victim of assault or complainant to respond to. The form’s spaces for the complainant as well as victim’s name as well as other identification are left blank; and that goes along as well with that of the offender’s information which was also left blank. Further, the victim refused to make a police statement in such that there was also no protection order enforced and that the copy of the DIR was not duly issued and given to the complainant because it was refused in the first place.

Another DIR in October 25, 2006 also showed blank details on the victim and suspect’s personal information; with a note that states that it is not merely a verbal dispute; and something physical happened between the offender and that of the complainant. Additionally, the police officer stated that the victim refused to cooperate and reluctant for help; and that the suspect was threatening to hurt himself.

Another DIR which was dated in November 5, 2006, states that the complainant and offender’s names are now indicated in the forms provided. The complainant further stated that she and her son had a verbal dispute over the computer as well as turning the phone off. Also, there was no order of protection in force and a DIR receipt was issued to the complainant as well as the “non-arrest reason” listed in the form is in line with the statement that there was no offense committed in the first place.

The DIR which was dated April 16, 2007, that is two days before the homicides and suicide happened, deliberately shows that the police went to the home of the same complainant and offender and reiterated that she was involved with a verbal argument with her son again because of his actions; and he also threatened the complainant if ever she called the police for assistance. It was described as verbal dispute or abuse; categorically; and no physical abuse was presented to the responding police officers at that time. Further, there was no order of protection in force, neither “stay away order” nor “any prior orders” in full force or in effect.

In order for liability to be established as connected to the aforesaid negligent exercise of government duties; special relationship should be proven to exist between that of the municipality and the claimant which should be beyond the relationship of citizens to the government in situ.

The petitioners contend that either the special relationship really existed or they actually failed to establish a so-called special relationship with the victim. The main focus of the argument of the petitioners is that the specific demands of the Domestic Violence Prevention Act and that of the associated police department protocols actually require the police officers to form a relationship with the victim of domestic violence in which that was not followed and established with that of the police department and the decedent or victim. The petitioners also presented the affidavit of the retired police inspector who further stressed that the police department patrol guide which decrees as such that the Domestic Violence police officers are required to organize protective measures for the complainant as well as be able to establish a special relationship with them in order to properly monitor and assure their safety from the perpetrator which are usually just within the confines of their homes which makes it a very dangerous scenario such as what had transpired with the mother and son murder-suicide case.

However, the city argues that petitioners’ motion must be denied vehemently because the new evidence presented as well as the affidavit of some experts do not merit reversal of the original decision given out by the court. This is said to not substantiate the facts as this was nothing entirely new or relevant to the case at hand. More so, the city pointed out that this new evidence in fact does not create or establish a special relationship because there was no protection order duly given to the complainant because she actually refused to be given that in some instances. The city further reiterates that the petitioners’ failure to request immediately the FOIL materials which are now presented to the court does not; in any way whatsoever, establish new evidence which could not be acquired for the petitioners’ first motion of claim.

The court finds that the public corporation had definite facts of the claim within the time span of the incident as the petitioner’s claims and evidences are within the control of the city. In addition, special relationships within the police department and the victims or complainants need not be established or ascertained at this point in time where it is deemed pointless and irrelevant by the court. Thus, with all the evidences at hand, and after rigid examination and evaluation of testimonies and documents given by the claimants as well as the other parties; the court has finally come to a favorable decision and ordered that the petitioners’ motion for renewal of application for an order obtained from court be granted as well as the permission in filing a late notice of claim; however, all other relief which was requested is denied.

Stephen Bilkis and Associates is the best in legal practice and can recommend the best criminal lawyers to guide and empower you in your quest for justice and the truth. Do not hesitate to contact them and be represented.

Published on:

Comments are closed.

Contact Information