Court Allows Victim's Son to Sue for Earnings

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.

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Son's Wrongful Death Suit Against Suffolk Is Upheld

Mark Fass
12-07-2010

In a wrongful death action filed on behalf of a child who was in utero when his father was killed by a Suffolk County police officer, a Brooklyn appeals panel has rejected the county's contention that the now-8-year-old boy's damages were too speculative for him to pursue the claim.

The Appellate Division, Second Department, found that under the state's Estates, Powers and Trust Law, the boy presented sufficient evidence of his relationship to his father to seek damages for his death.

"[T]he posthumous DNA test constituted clear and convincing proof of paternity," the panel held in its unanimous, unsigned decision, Seaton v. County of Suffolk, 2010-01417. In addition, an affidavit submitted in support of the petition "was sufficient to establish that the decedent openly and notoriously acknowledged that he was the father of the child that would ultimately be born."

The fatal accident that killed 20-year-old student Jose Colon took place three days after he learned that his on-again, off-again ex-girlfriend, Tina Feliciano, was six-weeks pregnant with his child, according to the complaint.

On April 22, 2002, Mr. Colon was emerging from a Bellport, Long Island, house, as Suffolk County police officers approached for a drug raid. An officer tripped over a tree root and bumped into the officer in front of him, who then accidentally fired three shots, including the fatal one, which struck Mr. Colon in the side of the head.

Seven months later, in November 2002, Ms. Feliciano gave birth to Mr. Colon's son, Jose A. FelicianoColon.

Ms. Feliciano subsequently filed the wrongful death claim against Suffolk County on behalf of her son, joining a wrongful death action filed by Mr. Colon's mother.

In New York law wrongful death actions, a decedent's estate may seek damages for pain and suffering and consciousness of death. The decedent's survivors may be compensated for their pecuniary damages and loss of parental guidance.

Because Mr. Colon was young and died relatively quickly-just how quickly is to be legally determined at trial-the damages awarded to his son might exceed those awarded to his estate.

Evan Torgan, a personal injury expert at Torgan & Cooper and a Law Journal columnist who is not involved in the case, said the Second Department rarely upholds large awards for short durations of pain and suffering, but that it has allowed seven-figure "loss of parental guidance" claims.

Last December, Suffolk County Supreme Court Justice Denise Molia denied the county's motion for partial summary judgment dismissing Jose Feliciano-Colon's claims. The county appealed, arguing that the son's claim of pecuniary loss was "impermissibly speculative."

"The Court of Appeals has determined that the legislature did not intend to authorize the maintenance of a wrongful death action where there are no elements whatsoever upon which a jury could base a conclusion that pecuniary injury has been suffered," the county contended in its appellate brief.

"The case at bar presents all of the complications associated with a pecuniary loss claim that is proffered on behalf of a fetus: the decedent did not contribute to the support or medical care of the fetus' mother; the decedent was involved in a relationship with a different 'girlfriend' at the time he was allegedly told about the fetus; paternity of the fetus was not established prior to the decedent's death; the gestational age of the fetus was alleged to be six weeks at the time of the decedents' death."

In their reply, the plaintiff-son's attorneys wrote, "Not only do the Appellants want the Decedent's infant son to grow up fatherless, they also want him to grow up penniless. Nevertheless, the decedent's pecuniary losses are not speculative, and can be reasonably calculated."

The plaintiffs submitted an affidavit from an economist estimating that, based on such factors as the decedent's age, education and income at his death-$11 per hour at Top Line Advertising in Ronkonkoma-his son suffered a loss of income of $1.35 million.

On Friday, the Second Department sided with the son, affirming Justice Molia's denial of the motion for partial summary judgment.

The panel noted that the right of a nonmarital child to recover in an action for the wrongful death of his father "is coextensive with [his] right to inherit from the father under EPTL 4-1.2," and that the son satisfied both prongs of EPTL 4-1.2's two-part test-proof of paternity and that his father "openly and notoriously" acknowledged the paternity.

Michael V. Buffa and Ted M. Rosenberg of Rosenberg & Gluck in Holtsville, Long Island, represented the son.

"If their argument is that the damages are speculative, then the damages in most any wrongful death claim are speculative, because they require you to look into the future," Mr. Rosenberg said. "There are cases where young adults are killed that don't have an established track record regarding what their earnings will be. That's why we have economists."

County Attorney Christopher A. Jeffreys represented Suffolk County. He said he was disappointed both with the panel's conclusion and its failure to explicitly address whether the son's claim was impermissibly speculative.

"This decision doesn't help with the issue that is presented," Mr. Jeffreys said. "The issue is, How is this going to be proved? How am I going to defend against a speculative claim? This doesn't provide the guidance that either side was looking for."

Justices Reinaldo E. Rivera (See Profile), John M. Leventhal (See Profile), L. Priscilla Hall (See Profile) and Sheri S. Roman (See Profile) sat on the panel.

In April, the Legislature lowered the standard for posthumously establishing paternity by removing the "openly and notoriously" requirement from EPTL 4-1.2(a)(2)(C). The amendment, however, does not affect the standard in the Seaton case.

The drug raid that led to Mr. Colon's death resulted in four arrests and the seizure of "several ounces" of marijuana, according to news reports. The officer who shot Mr. Colon was not charged.

@IMark Fass can be contacted at mfass@alm.com.
http://www.law.com/jsp/nylj/PubArticleFriendlyNY.jsp?id=1202475798065 12/7/2010