A missed deadline in a lawsuit filed against the City involving an off-duty police officer now has Peekskill facing a million-dollar-plus payout in a case the city could have won in court.

Seven years ago this month, Peekskill police officer Jonathan Mosquera called his commander to let him know he would be late reporting for his midnight shift. Mosquera no longer works in Peekskill.

Mosquera jumped into his Lexus at his Rockland County home and headed to work, admittedly speeding as he hurriedly drove on Route 202 in Suffern.

As he was driving past the Yeshivat Tiferet Tora school entrance, Mosquera tried to pass another car that suddenly swung in front of him to turn left. The cars collided and two students standing on the side of the road were struck, killing one and injuring the other.

Mosquera was issued four summonses including speed in zone, speed not reasonable and prudent, moving from a lane unsafely and improper passing.

A lawsuit filed by David Maldonado, who was injured in the accident, has been winding through the courts since 2017. Now, the City of Peekskill is facing a million-dollar settlement that hasn’t been settled, potentially running up the cost of the case to $1.23 million and growing with interest. (No lawsuits appear to have been filed on behalf of the student killed in the crash.)

A deal falls apart at last minute

The case seemed to be over with a scheduled vote by the Common Council on Monday night, Sept. 11 to pay Maldonado $1 million to settle his lawsuit. But that vote didn’t happen after the resolution was pulled at the last minute.

According to court papers filed by Maldonado’s attorney Herschel Kulefsky, that million-dollar settlement was agreed to by Peekskill Corporation Counsel Tim Kramer at a hearing before Westchester County Judge Joan Lefkowitz on May 10, 2022.

Kramer told the court that he had “verbal authorization” from the Peekskill Common Council to settle at that amount but that he just needed some time to pass a formal resolution.

Then, for the next 15 months, according to Kulefsky, nothing happened. “The City of Peekskill, however, is holding my client hostage and refuses to pay the settlement so my client can move on with his life,” Kulefsky wrote.

Peekskill might have backed out because, as the city’s deputy counsel wrote in a June 2023 email, an insurance company informed them they would not pay the $1 million settlement. The city suggested in that email they intended to take the insurance company to court to get them to pay the claim.

A tangled tale through the courts

Trouble started for the city when its attorney Tim Kramer missed a deadline to respond to the original complaint. According to court papers, Kramer acknowledged he missed the March 2018 deadline for what is normally a routine denial of allegations made by plaintiffs in court cases.

“Due to the short staffing and heavy workload of this office, which consists of only the Corporation Counsel, Kramer and one secretary, he failed to timely serve an Answer. He had inadvertently placed the subject file along with other files in which Answers were already prepared,” the court papers state. (Kramer was assistant corporation counsel at the time and Melissa Ferraro was corporation counsel.)

Kulefsky then sought a default judgment for his client from the court. However, his motion was denied by Judge Charles Wood in a June 2018 ruling that gave Peekskill more time to answer the complaint

Wood wrote that Peekskill had a reasonable chance of winning the case. “… there may be a potential meritorious defense that Peekskill, as employer may have had no control over the means by which the employee traveled to work, and whether the employee’s tort was committed outside scope of employment.”

Not giving up, Kulefsky appealed that decision and in September of 2020 he won a verdict from the Appellate Division giving him the default judgment.

“Here, the Peekskill defendants’ conclusory explanation that their attorney misplaced the file and that their office was understaffed was insufficient to establish a reasonable excuse for the default,” the court wrote.

Questions about next steps

The court papers don’t address how the two sides in the case came up with a figure of $1 million. Maldonado suffered numerous injuries and underwent four surgeries from September to December in 2016.

Given that a judge hearing the case acknowledged that Peekskill might have a legal defense because they didn’t control Mosquera’s actions while off-duty, why the city’s taxpayers should pay anything is an open question.

The resolution that was pulled from the Common Council’s Monday agenda stated the $1 million would come from the city’s unassigned fund balance.

According to Maldonado’s attorney, his client, who is now 25 years old, will receive $100,000 from Mosquera’s insurance company and another $100,000 from the other driver in the accident after being paid by Peekskill.

In his August 4 letter to Judge Lefkowitz, Kufelsky asked the court to order Peekskill to forward settlement papers and pay the $1 million settlement. Failing that, he wanted the court to order an inquest against the city.

The case could now be headed back into a courtroom. A notice was posted by the county court clerk that further legal action is planned. “The above-captioned case has been restored to the calendar AGAIN for the Central Pre- Trial Part and scheduled for August 25, 2023 at 10 am in Courtroom 1600,” the notice said.

Requests for comment this week from attorney Kufelsky were not returned. City Manager Matt Alexander said on Thursday he couldn’t comment on the case.