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Filed hours before notice of claim would expire
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Lawsuit says police interacted with, but did not test Thomas McGrath for impairment twice before deadly Route 85 crash
ALBANY – Just hours before the notice of claim against the Town of Colonie would have expired on Friday, Aug. 9 lawyers for the family of Michael Kleike, Jr. filed a civil suit in Albany County Supreme Court.
The suit claims that Colonie police released Thomas McGrath, 72, of Slingerlands, just minutes before he allegedly slammed into 17-year-old Colonie Senior in a Bethlehem crash on May 11, 2023. Kleinke Jr. died two days later from the injuries sustained in the crash.
McGrath, through indictment, faces a slew of criminal charges, including manslaughter, assault, vehicular homicide and DWAI-combination drugs and alcohol in connection with the crash.
He was also charged by indictment with two counts relating to a May 9, 2023 incident in Colonie where he was stopped by police for driving erratically, but in that case, police released McGrath to Colonie EMS.
The suit takes aim at that incident and a second incident on the day of the crash, May 11, 2023 where McGrath rear ended a vehicle in Loudonville, but released from the scene 38 minutes before the fatal crash. According to crash reports obtained by Spotlight News, two women were in the vehicle hit by McGrath. The women allegedly notified police that there was something wrong with the 72-year-old and they suspected impairment.
The lawsuit states that police allowed McGrath “to drive away despite being told he was acting/behaving/driving erratically; in failing to perform field sobriety tests [McGrath] before allowing him to operate his motor vehicle; in failing to detect impairing drug use of [McGrath]; in knowing that [McGrath] was on medication and allowing him to drive away.”
“[T]he defendant, Town of Colonie, through its agents, servants and/or employees were negligent, grossly negligent, wanton, reckless and careless in, among other things, failing to take action to remove one, Thomas McGrath, from the roadway; in failing to protect deceased plaintiff, Michael J. Kleinke, Jr.,” the suit reads.
According to the suit and confirmed by a FOIL request, the parents of Michael Kleinke Jr., Jessica and Michael Kleinke, Sr. filed a notice of claim against the Town of Colonie on September 13, 2023 and then filed the suit within 455 days of the crash, which is the statute of limitations.
Details on the two stops
Records obtained through a freedom of information law request showed that McGrath was the subject of a 911 call in the Town of Colonie on May 9, 2023 that required Colonie EMS and another crash that cleared 38 minutes prior to the fatal collision.
On the May 9 call, a woman telephoned Colonie 911 at 10:51 p.m. and reported that a black Mercedes was traveling North on Albany Shaker road towards Wolf Road driving erratically. The caller followed the vehicle as it turned onto Osborne road and into the parking lot of the Beverage Baron.
As reported in the Colonie call log, the caller said, “It’s in the Price Chopper lot – was all over the road swerving – almost hit a few pedestrians.”
The caller also reported her “husband is talking to the subject and states ‘He is really messed up’.”
Officers reached the scene and found McGrath in the driver’s seat of the parked Mercedes. According to the incident report, “Thomas was disoriented and confused as to how he can be in Kimberly Square, however, he did not have any indicators of alcohol or drugs.”
The officer contacted Colonie EMS and said that the issue appeared to be “diabetic related.”
McGrath was then turned over to Colonie EMS. Because of HIPPA regulations, EMS patient reports are not subject to FOIL laws so the outcome of the call was not disclosed.
According to the report, the incident was closed because the caller stated that “Thomas was not involved in a crash to her knowledge and upon responding officers’ inspection there was no obvious damage” to his vehicle.
By contrast, the May 2024 indictment reads that on May 9 “commencing at approximately 10:45 p.m., while traveling on various streets in the City of Albany and Town of Colonie…including Albany Shaker Road and Northern Boulevard…did, recklessly engage in conduct which created a substantial risk of serious physical injury to another person.” The indictment further states that McGrath was operating his black 2005 Mercedes sedan “while under the influence of a drug.”
Colonie, Albany County Sheriff’s Office and City of Albany police all confirmed that McGrath was not arrested on May 9. McGrath’s attorney Stephen Coffey, of O’Connell & Aronowitz, also said that he was not arrested that night.
According to State law, a person may either be arrested and charged with a crime or, as occurred in this case, may be charged after evidence is presented to a Grand Jury.
Again on the morning of the crash
On May 11, 2023, the morning of the fatal crash, Colonie police were again in contact with McGrath. At approximately 12:53 p.m.,Colonie police received a 911 call for a property damage crash that just occurred at the intersection of Menands and Loudon (Route 9) Roads in Loudonville. That intersection is approximately 1.1 miles from the May 9 incident’s site, which is near the Beverage Baron.
According to the Civilian Accident Information Exchange Form acquired through FOIL, McGrath’s vehicle rear ended a vehicle stopped at the intersection. Two women were in the other car.
McGrath said in the report that he didn’t hit the brakes hard enough causing him to strike the rear of another vehicle occupied by two women. The report said “No injuries reported.”
The officer cleared the call at 1:30 p.m. and McGrath collided with Kleinke’s vehicle at 2:08 p.m.
Meredith Savitt co-wrote this story
