By Cynthia Koons
But the attorney for the families said Tuesday he was planning to appeal the summary judgement that was handed down in July.
Jones is the attorney for the families of Anita Smith, 22, of South Jamaica; Jeremy Mele, 18, of Neptune, N.J.; and Ramon Nazario, 44, of Flushing.
The families of Smith, Mele and Nazario sued Wendy's International Inc. on the grounds that the company failed to provide security in its Main Street store and was at fault for hiring John Taylor, a former employee who was convicted of murdering five workers at the fast food restaurant. The suit also named New York City as a defendant in the suit, saying it was responsible for the wrongful death of the employees.
“The case had more merit than what the judge allowed for,” Jones said. “It's a serious tragedy and there are some issues we want to pursue.”
The case was dismissed by Civil Court Judge Martin Schulman in Jamaica on the grounds that the statute of limitation had expired for a wrongful death suit against the city and that worker's compensation was granted.
He ruled that Worker's Compensation Law, which is designed to “provide a swift and sure source of benefits to injured employees in exchange 'for the loss of the common-law tort action in which greater benefits might be obtained,'” was adequate to take care of the victims' survivors.
The judge maintained that the law precluded victims' families from filing subsequent suits against the employers, Wendy's International Inc. or Wendy's New York.
Wendy's International Inc. did not return calls for comment.
Schulman said he could not comment further on his decision in the civil suit, which he signed on July 31.
“Whatever reasons I had were filed in the opinion,” he said.
Five Wendy's employees were murdered, execution-style, and two were wounded in the May 2000 massacre. In addition to the three victims' families who are suing, Jean Auguste, 27, of Brooklyn and Ali Ibadat, 40, of Ridgewood were also killed in the attack.
Taylor, who was fired from the store seven months prior to the slayings, entered the restaurant with his accomplice, Craig Godineaux, at closing time on May 24, 2000 and announced a robbery.
Prosecutors said the two men tied up the seven victims, placed bags over their heads and shot them one by one. A jury handed Taylor a death sentence in December 2002.
Taylor's criminal case is in the process of appeals, according to the Queens district attorney's office. Godineaux, who pleaded guilty to killing three people and injuring two, is serving life without the possibility of parole.
Schulman invoked the General Municipal Law in his decision, which requires plaintiffs to file claim with the city within 90 days of the appointment of an administrator for the deceased's estate.
Schulman dismissed part of Smith's case because her family missed the statute of limitations.
Nazario's and Mele's claims were also deemed untimely by the court, because the statute of limitations for wrongful death expired two years after the incident. The two families filed two years and three months after the crimes were committed.
Jones said the victims' families brought the case to him late. He contended that the other grounds for dismissal in the judge's ruling were worth reconsideration.
“Usually if a defendant is going to file a motion for summary judgement to have a case dismissed, the court typically gives the plaintiff the opportunity to litigate their case,” Jones said. “I don't believe the court allowed us the opportunity to litigate the case.”
The judge rejected a claim that Auguste, the Wendy's manager, falsely imprisoned the victims by forcing them into the basement during the attack.
However, the judge said in his decision that Auguste's knowledge of the risk did not mean he intended to cause injury. And the fact that Auguste was murdered “strongly undermines these claims,” the judge wrote.
Reach reporter Cynthia Koons by e-mail at news@timesledger.com or call 718-229-0300, Ext. 141.
