Lawyers for Convicted Subway Pusher Say Their Client Didn't Receive Proper Mental Care

The platform at 40th Street – Lowery Street in Queens, where Erika Menendez pushed Sunando Sen onto the tracks in 2012.
The platform at 40th Street – Lowery Street in Queens, where Erika Menendez pushed Sunando Sen onto the tracks in 2012.

A lawsuit challenging the effectiveness of mental health treatment in New York’s criminal justice system was filed Tuesday from an unlikely source; a convicted killer who says she never would have done it if she received adequate care.

The plaintiff in the case, Erika Menendez, made headlines in 2012 when she pushed a stranger, Sunando Sen, onto the tracks where he was fatally struck by a 7 train. Menendez, 31 at the time, was initially charged with second degree murder as a hate crime; Menendez reportedly told police she attacked Sen because she hated Muslims and Hindus.

“I pushed a Muslim off the train tracks because I hate Hindus and Muslims — ever since 2001 when they put down the twin towers, I’ve been beating them up,” Menendez told police, according to the Daily News. Sen, 46 at the time of his death, was a business owner, Indian immigrant and a Hindu who had been living in the U.S. for more than 20 years.

Menendez ultimately pleaded guilty to first degree manslaughter and was sentenced, in May of this year, to 24 years in prison.

In her lawsuit, Menendez, who has suffered for years with paranoid schizophrenia and schizoaffective disorder, both of which can cause delusions and hallucinations, argues that the state mental health system failed to adequately treat her condition. The suit claims that a court ordered treatment was never provided, and that care she did receive was substandard leading directly to the killing of Sen, and ultimately to Menendez' conviction. Menendez claims she was improperly discharged from Elmhurst Hospital Center in 2011, which is also named as a defendant, and was under the care of two different providers, Federation of Organizations and Creedmoor Psychiatric Center, when she attacked Sen.

According to the lawsuit, the defendants, which include the State of New York Office of Mental Health, “had a duty to care for and properly treat" Menendez, and "breached that duty and thereby proximately caused great damages to [Menendez] in that she was charged with murder.”

Menendez’ attorney Thomas Liotti says the claim — which seeks damages of $2 million — isn't just about his client. “The experts have told us that this never would have happened had she been properly treated.

"An innocent person was killed and our client’s life is also gone," Mendez continued. "We are bringing this action for our client but for society as a whole since it deserves to be protected from those who are violently, mentally ill.”

Liotti acknowledges to the Voice that the suit – a convicted killer suing because of her own incarceration — is unusual: “We know that this is kind of a novel issue, and maybe unprecedented,” Liotti says. “But this is a young woman who is probably going to be incarcerated for the balance of her life. And we have been told that this would not have happened if she had been given proper medication, care and treatment.”

Joseph DeFelice, Mendendez' attorney during part of her criminal trial, said he too believed Menendez was failed by the mental health system. He tells the Voice that he was skeptical of the bias claims that he says were "played up" by the prosecution, saying Menendez' mother was a convert to Islam, and that Menendez had dated Bangladeshi men in the past. The papers were quoting a woman in the midst of a mental health crisis, he pointed out, and "she said whatever came into her head."

Liotti says the $2 million figure in the suit is fairly minor compensation compared to the harm Menendez will suffer over decades behind bars. He said he hoped the financial costs would get city and state leaders to address the needs of the mentally ill with a sense of urgency.

“Hopefully this will be a wake up call for the city of New York,” Liotti said.
Read the filing below:

Menendez - Claim vs Nys Et Al

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