By:Karenlyn Barone
Claiming that the case of the man who killed his mother had fallen through the cracks of the county's mental health system, John Tosner filed a civil lawsuit against Nassau County and the Nassau University Medical Center in March. Last week, despite arguments from both defendants to drop the case, State Supreme Court Justice William LaMarca ruled that the civil lawsuit can proceed.
The wrongful death suit alleges that Peter Troy, then 34, was not given adequate psychiatric treatment for his diagnosed schizophrenia by the Nassau County Department of Mental Health and the medical center in the months before his murder of Tosner's mother. In March of 2002, Troy gunned down Eileen Tosner, 73, and the Rev. Larry Penzes, at a Mass at Our Lady of Peace Roman Catholic Church in Lynbrook.
In an effort to get the case dismissed, attorneys representing the county and the medical center argued several technical points. Both sides claimed that John Tosner had failed to identify himself as the duly appointed administrator of his mother's estate, and that the lawsuit was not filed in a timely manner. La Marca countered that Tosner, 44, who lives in Wellington, Fla., had, in fact, been named administrator by the Nassau County Surrogate Court and that papers were filed accordingly.
Troy, also named as a defendant in the lawsuit, is serving time in the Clinton Correction facility in Danemora, N.Y., having been convicted of two counts of first-degree murder in a trial last May. Two weeks ago, he asked LaMarca for more time to answer the complaint, saying he did not receive a summons for the case until just two months ago. According to Jacqueline James of the Manhattan law firm Kreindler and Kreindler, who represents Tosner in the action, Troy wrote a letter to the court on June 29. In it he stated, "As I am completely unfamiliar with the law, I was unaware I needed to file a verified answer." There was no word from the court on whether Troy, who represented himself in his 2003 trial, would be given that extension.
"I believe that Peter Troy has been in protective custody in prison, with limited access to books and restricted reading," said James McCormack of Garden City, Troy's court-appointed attorney during his murder trial, who has been corresponding with Troy by mail. "This case is obviously in its infancy."
McCormack said that he has a number of concerns regarding the civil suit. "First, an appeal has not been filed yet, even though I filed a notice to appeal over a year ago," he said. "Second is whether or not Troy will be able to answer questions should the conviction be overturned. There are some Fifth Amendment issues here." McCormack was referring to the fact that should an appeal go forward, Troy would not be able to discuss issues relating to the murder case in the civil suit.
McCormack also noted that Troy would need an attorney for the civil case, as he is not in a position to hire one on his own.
"The county is the main defendant in the case," said McCormack. "Troy has no assets, and he is not the one with the deep pockets, as we say in the business."
Regardless, James said, Tosner very pleased with LaMarca's ruling. "The county and the mental health department moved to dismiss," she said. "The judge's ruling was correct, and validates our justification for suing Nassau County and the University Medical Center for their failure to properly treat Peter Troy."
According to James, the purpose of Tosner's civil lawsuit is to force some changes within the system. "John Tosner hopes the suit results in positive changes in the mental health care being offered in Nassau County," she said. "The point is, this was a random act. Troy was allowed in the community completely unmonitored." James was referring to the fact that health department record show that Troy was not adequately supervised after being diagnosed as schizophrenic. In fact, his file was closed without intervention after his release from the hospital, although he was to be evaluated by Nassau County's Office of Mental Health. Troy was never contacted by the department, which closed the case after stating that he could not be located.
According to McCormack, in 2002 the Nassau County phone book had a listing for Troy in Hicksville, where his parents live, and one in Elmont, at the apartment he rented, before he moved to the same street in Lynbrook as our Lady of Peace church.
"There was no case manager monitoring him," said James. "They closed the file against their own treatment advice."
Nassau University Medical Center was in the middle of a labor dispute at the time, and there was a shortage of health care personnel.
Nonetheless, according to the New York State Commission on Quality of Care, published in 2003, the Office of Mental Health "inappropriately closed Troy's case."
"A random shooting such as this puts every member of the community in danger," said James. "That's why it's important to clean up the system. The random nature of the act adds to the tragedy."
McCormack said that the suit is unusual in that there have not been many cases when a public entity, such as the county, has been held responsible for the actions of an individual. "There is a tough road to hoe ahead," he said. "They have to establish the connection between what Nassau County and the University Medical Center did or did not do, and what happened to Mrs. Tosner. The most troubling part is that there are other people like Peter Troy -- with his condition and health concerns -- out there. Who knows if they are being adequately supervised?
James said that the next court date for the case has been set for Sept. 15, at which time she and Tosner hope to have a scheduling order to proceed with discovery.
