Suit filed in gun death of Wilton boy

PHOTOGRAPHER: Lee Coleman

The parents of the 12-year-old Wilton boy accidentally shot and killed by his friend last Dec. 22 have filed a wrongful death civil lawsuit against the child and his father.

Oksana and Yuri Naumkin, the parents of Nicholas Naumkin, have hired a New York City lawyer, Richard Mogg of the Bronx, to represent them in the case filed with the state Supreme Court in Ballston Spa.

The civil lawsuit alleges that the boy and his father, Edward O’Rourke Jr. of Wilton, “recklessly and/or carelessly and without justification caused the death” of Nicholas Naumkin.

The lawsuit, first filed in late September and amended this month, lists four reasons that the Naumkins are seeking court action against the Wilton man and his son. These reasons include the death of their son, the conscious pain and suffering of the parents, and the recovery of damages.

No money figure is mentioned in the lawsuit but it seeks compensation for the cost of the boy’s funeral and burial expenses, the settlement of the boy’s estate, and the family’s loss of their son’s “love, care, advice and guidance.”

The case has not yet been assigned a judge, according to court officials. Attorney Paul Briggs of Schenectady is representing the O’Rourke’s homeowner’s insurance company involved in the case.

Neither Mogg nor Briggs could be reached for comment Monday.

Oksana Naumkin said Monday it is too soon to comment publicly on the lawsuit.

Police said the two boys were home alone on the late afternoon of Dec. 22, 2010, when they found a handgun belonging to Edward O’Rourke Jr. in a bedroom dresser drawer at 1 Birchwood Drive. Nicholas was visiting his school friend that day. They both attended the Maple Avenue Middle School.

The boys played with the gun and then found ammunition in another bedroom drawer, according to the Saratoga County Sheriff’s Office. The gun was loaded with the ammunition clip and unloaded several times.

Somehow a single round was chambered. After the clip had been removed from the gun, the friend pointed what he thought was an empty gun at Nicholas Naumkin’s head and pulled the trigger, fatally wounding the boy.

The friend, whose name the Gazette is not publicizing, has since been prosecuted in Saratoga County Family Court. Now 13, he admitted shooting his friend by mistake and was ordered to serve two years’ probation and receive mental health counseling.

Saratoga County Family Court Judge Courtenay Hall said this fall a psychiatric report indicated the boy is “a loving son” and a good student who is not a danger to the community.

The boy was facing counts of misdemeanor reckless endangerment and possession of a dangerous weapon by a person under 16.

Edward O’Rourke Jr. was charged with endangering the welfare of a child, a misdemeanor. He first appeared on the charge in Wilton Town Court but both town justices recused themselves and the case was transferred to Saratoga Springs City Court.

Attorney Jeffrey Bagnoli of Mechanicville is representing O’Rourke in the endangering case. He filed papers with City Court this fall urging that the charge be dismissed “in the interests of justice.”

However, Debra Kaelin, an assistant Saratoga County district attorney, recently filed legal papers opposing the dismissal move.

“A trial must be held,” Kaelin said on Monday. She said dismissing charges “in the interest of justice” does not seem appropriate when a young boy has been killed. She said the matter should be placed before a jury.

City Judge Jeffrey Wait will review both sets of legal papers and render an opinion. Wait said he expects to have his decision available sometime after Jan. 1.