Opinion
Index No. 514553/22
03-01-2023
In the Matter of the Application of Kathleen MCCLEAN, Petitioner, v. The BOARD OF TRUSTEES OF the FIRE DEPARTMENT OF the CITY OF NEW YORK PENSION FUND, the New York City Fire Pension Fund and Laura Kavanagh, as Acting Fire Commissioner of the Fire Department of the City of New York and as Chairperson of the Board of Trustees of the New York Fire Department Pension Fund and the New York City Fire Pension Fund, Respondents.
Counsel for petitioner: Glenn W. Nick, Sullivan Papain Block McGrath Coffinas & Cannavo P.C., 120 Broadway 27th Floor, New York, NY 10271 Counsel for respondents: Hon. Sylvia Hinds-Radix, Corporation Counsel of the City of New York, by Amy J. Weinblatt, Assistant Corporation Counsel, 100 Church Street, Room 5-151, New York, New York 10007
Counsel for petitioner: Glenn W. Nick, Sullivan Papain Block McGrath Coffinas & Cannavo P.C., 120 Broadway 27th Floor, New York, NY 10271
Counsel for respondents: Hon. Sylvia Hinds-Radix, Corporation Counsel of the City of New York, by Amy J. Weinblatt, Assistant Corporation Counsel, 100 Church Street, Room 5-151, New York, New York 10007
Karen B. Rothenberg, J.
Petitioner Kathleen McClean (petitioner) moves for an order, pursuant to Article 78 of the Civil Practice Law and Rules:
(1) annulling the determination of respondents the Board Of Trustees of the Fire Department of the City of New York Pension Fund ("Board of Trustees") and the New York City Fire Pension Fund ("Fire Pension Fund") (collectively, respondents) dated January 19, 2022, which denied her application for a line-of-duty death benefit under the World Trade Center (WTC) legislation arising from the death of her husband, retired Firefighter Dennis B. McClean (Firefighter McClean); and (2) directing that respondents grant her application for a line-of-duty death benefit pension under the WTC legislation arising from the death of Firefighter McClean; or, in the alternative (3) directing that the petitioner's application for a line-of-duty death benefit pursuant to the WTC legislation be remanded back to respondents for reconsideration consistent with the decision of this court.
Background
Firefighter McClean joined the Fire Department of the City of New York in 1981. Petitioner and Firefighter McClean were married on July 25, 2000, in New Jersey. On September 11, 2001, Firefighter McClean responded to the attack on the WTC and worked at the site for several months thereafter. On April 2, 2002, while working at the WTC site, his leg was struck by a metal beam and fractured in several places. These injuries required surgery and resulted in Firefighter McClean retiring on a disability pension in 2002.
Firefighter McClean was subsequently diagnosed with prostate cancer in 2009, and he applied to respondents for a reclassification of his pension due to his exposure to toxins while working at the WTC site . In 2014, the Medical Board determined that his cancer was linked to his WTC exposure and reclassified his pension to a WTC accidental disability pension. On September 6, 2021, Firefighter McClean succumbed to prostate cancer.
NYC Administrative Code 13-353.1 (2) (a) provides in pertinent part that "... if a member who participated in World Trade Center rescue, recovery or cleanup operations ... subsequently retired on a service retirement, an ordinary disability retirement, an accidental disability retirement, or a performance of duty disability retirement and subsequent to such retirement is determined by the head of the retirement system to have a qualifying World Trade Center condition ... upon such determination by the NYCFDPF board of trustees, it shall be presumed that such disability was incurred in the performance and discharge of duty as the natural and proximate result of an accident not caused by such member's own willful negligence, and that the member would have been physically or mentally incapacitated for the performance and discharge of duty of the position from which he or she retired had the condition been known and fully developed at the time of the member's retirement, unless the contrary is proven by competent evidence. (b) The NYCFDPF shall consider a reclassification of the member's retirement as an accidental disability retirement effective as of the date of such reclassification.
Following her husband's death, petitioner applied for an accidental death benefit pension pursuant to Administrative Code § 13-353.1, also known as the WTC Presumptive Bill. Pursuant to the statute, the retiree's beneficiary would be entitled to an accidental death benefit, which is essentially the equivalent of continuation of his or her annual salary for the remainder of the beneficiary's life. By letter dated, December 7, 2021, the FDNY Pension Fund's Medical Board informed petitioner that it had reviewed her application and recommended that she "be granted an accidental line-of-duty death benefit for pension under the WTC provisions" (NYSCEF Doc No. 8). However, on January 19, 2022, petitioner received a letter from an attorney from the Fire Pension Fund which stated, in pertinent part, as follows:
Based on the applicable statutes, General Municipal Law § 208-f and
General Municipal Law § 208-f provides that "... the special accidental death benefit provided by this section shall be paid to the widow or widower or the deceased member's children ... if the widow or widower has died, or to the deceased member's parents if the member has no widow, widower, children ... of: (i) a deceased member of a pension or retirement system of a police department or paid fire department of a city, town or village."
NYC Administrative Code § 13-347 (c) (1) , the death benefit is payable to a member's spouse or widow. Regretfully, in reviewing your case, it has been determined that you were not legally divorced from your first husband at the time of your second marriage to our member, thereby making it invalid. Therefore, despite the recommendation outlined in the Medical Board's December 7, 2021 report, you are ineligible for the subject Line of Duty Death Benefit at this time. While we sympathized with your position, we are unable to finalize your application for this benefit unless and until we receive clarification or direction from a court in this regard (NYSCEF Doc No. 9) (Footnotes inserted by the court).
NYC Administrative Code 13-347 (c) (1) states that "[t]he applicable lump sum payment and allowance or pension, as the case may be, referred to in subdivision b of this section shall be granted: (1) To such deceased member's surviving spouse, to continue until the death of the surviving spouse."
On March 25, 2022, petitioner's counsel wrote to respondents in response to their letter denying petitioner's application in which it was conceded that prior to her marriage to McClean, petitioner had been married to Serge Gauvard, a drug abuser who abandoned her years before she had even met McClean. Counsel noted that petitioner had no contact from Gauvard for many years as he had gone missing. However, on June 9, 2015, she was able to obtain a Judgment from New York State Supreme Court, New York County, dissolving her marriage to Gauvard. Petitioner later learned that Gauvard died from a drug overdose in October 2019. Counsel acknowledged that petitioner's marriage to Firefighter McClean took place prior to her official divorce from Gauvard. However, he urged respondents to reconsider their determination in light of the fact that petitioner had been abandoned by Gauvard, had entered into a real marriage with McClean, and pointed to the spirit and purpose underlying the applicable death benefit legislation, arguing that it would be fair, just and eminently reasonable to grant the death benefit (NYSCEF Doc No.10). In a response dated April 14, 2022, counsel for the Pension Fund stated that they had reviewed petitioner's letter and consulted with the New York City Law Department and found that petitioner:
does not satisfy the statutory criteria for entitlement as a beneficiary to a Line of Duty Death Benefit ... [and] granting such exception is not within
the discretionary purview of the Board of Trustees
and thus, her case cannot be brought before them by our agency for consideration. However, if Kathleen McClean is successful in obtaining a favorable directive from a court based on this sympathetic set of facts, we will of course comply with any resulting Order (NYSCEF Doc No. 11).
Accordingly, petitioner now seeks an order annulling the determination and directing that her application for a line-of-duty death benefit pension be granted; or that her application be remanded back to respondents for reconsideration consistent with the decision of this court. Petitioner maintains that during the course of their twenty-one (21) year marriage, she was a loving and committed wife to Firefighter McClean. She notes that they lived together, maintained a home together, shared funds, held themselves out to the public as husband and wife and that she remained by his side as he fought and ultimately lost his long cancer battle. In support of the petition, she points to several cases which stand for the proposition that when a court is confronted with the claim that a formal second marriage is invalid because of the existence of a valid first marriage, a strong presumption of validity attaches to the second marriage. Specifically, petitioner points to the decision of the United States Court of Appeals, Second Circuit in Grabois v. Jones , 89 F.3d 97, 100 (2d Cir. 1996) in which the court held that "[t]he presumption of the validity of the second marriage ... grows stronger and stronger where a substantial injustice would be created by invalidating that marriage." Petitioner asserts that she has been caused and will continue to suffer a significant financial hardship if she is not granted the WTC death benefit. She contends that it would be a substantial injustice for her to be denied this benefit where, as here, she supported Firefighter McClean through the events of September 11th and his career-ending orthopedic injuries suffered while working at the WTC site and during his battle with prostate cancer, which ultimately claimed his life. Petitioner maintains that for over 20 years she was, in all senses, Firefighter McClean's wife. She further notes that there is no other individual who has any cognizable claim to Firefighter McClean's pension and thus, there is no public policy argument to be made to the contrary. Significantly, petitioner notes that the Pension Medical Board unanimously recommended it be granted to her. Next, petitioner points to the legislative intent underlying the WTC law noting that as a matter of public policy respondents have an obligation to those brave men and women who perished on September 11, 2001, or were caused to die from injuries and illnesses related to their exposure to the toxins while working at the site following the attack, and to their families. Finally, petitioner argues that public policy, fairness and equity favor granting her the WTC death benefit.
In opposition, respondents argue that the final determination denying petitioner WTC death benefits was neither arbitrary nor capricious as she was not the legal spouse of Firefighter McClean at the time of his death. Respondents further argue that the cases cited by petitioner are distinguishable and that here the presumption of validity of a second marriage does not apply as it is rebutted by the undisputed validity of petitioner's first marriage to Gauvard. Finally, respondents request that if this court finds that petitioner was the legal spouse of Firefighter McClean such that she qualifies for the WTC death benefit, that the parties be granted leave to submit a proposed order for the court's consideration. Discussion
"Judicial review of administrative determinations not made after a quasi-judicial hearing is limited to whether the action taken by the agency was made in violation of lawful procedure, was affected by an error of law, or was arbitrary and capricious or an abuse of discretion" ( Matter of Tirado v. Board of Trustees of NY City Fire Dept. Pension Fund, Subchapter 2 , 142 A.D.3d 709, 712, 37 N.Y.S.3d 295 [2d Dept. 2016] ; see CPLR 7803 [3] ; Matter of 9215 Realty, LLC v. State of NY Div. of Hous. & Community Renewal , 136 A.D.3d 925, 25 N.Y.S.3d 335 [2d Dept. 2016] ; Matter of Williamsburg & Greenpoint Parents: Our Pub. Schools v. Board of Trustees, State Univ. of NY , 130 A.D.3d 638, 639, 13 N.Y.S.3d 219 [2d Dept. 2015] ).
The court is well aware that this is a case of first impression and the facts herein are in stark contrast to the usual WTC presumption pension cases presented to the court, which primarily involve a petitioner seeking to overturn respondents’ determination that the WTC presumption is not applicable. Here, respondents actually determined that Firefighter McClean's death was attributable to a cancer he was caused to develop as a result of his time working at the WTC site and, in fact, initially recommended that petitioner be granted an accidental line-of-duty death benefit pension under the WTC provisions. The "WTC presumption" was enacted to recognize and compensate for the enormous sacrifice made by those public employees who assisted in the recovery from the World Trade Center attacks without regard to their own personal health and safety. Courts have consistently held that, as a matter of public policy, respondents have an obligation to these brave men and women and their families (see Maldonado v. Kelly , 86 A.D.3d 516, 520, 927 N.Y.S.2d 344 [1st Dept. 2011] rev on other grounds by Matter of Bitchatchi v. Board of Trustees of the NY City Police Dept. Pension Fund, Art. II , 20 N.Y.3d 268, 284, 958 N.Y.S.2d 680, 982 N.E.2d 600 [2012] ; Matter of Dement v. Kelly , 97 A.D.3d 223, 231, 947 N.Y.S.2d 72 [1st Dept. 2012] ; Matter of Concannon v. Board of Trustees of the NY Fire Dept. Pension Fund, Subchapter II , 34 Misc.3d 1235[A], 2012 WL 716593 [Sup. Ct., Kings County] [holding that respondent [Board of Trustees for the City of New York], as a matter of public policy, had an obligation to petitioner, a firefighter who suffered from a 9-11 related cancer, and to his family]). The WTC law has been amended to, among other things, add different cancers and other diseases to the list of qualifying conditions, and to provide that the surviving loved ones are entitled to receive the deceased member's pension.
"In matters of statutory interpretation generally, and particularly here, legislative intent is "the great and controlling principle [ ]. Legislative intent may be discerned from the face of a statute, but an apparent lack of ambiguity is rarely, if ever, conclusive [ ]. Generally, inquiry must be made of the spirit and purpose of the legislation, which requires examination of the statutory context of the provision as well as its legislative history" ( Sutka v. Conners , 73 N.Y.2d 395, 403, 541 N.Y.S.2d 191, 538 N.E.2d 1012 [1989] [internal citations omitted]; see Ferres v. City of New Rochelle , 68 N.Y.2d 446, 451, 510 N.Y.S.2d 57, 502 N.E.2d 972 [1986] ; Matter of Albano v. Kirby , 36 N.Y.2d 526, 529-530, 369 N.Y.S.2d 655, 330 N.E.2d 615 [1975] ; Matter of Petterson v. Daystrom Corp. , 17 N.Y.2d 32, 38, 268 N.Y.S.2d 1, 215 N.E.2d 329 [1966] ). "Literal meanings of words are not to be adhered to or suffered to ‘defeat the general purpose and manifest policy intended to be promoted’ " ( Matter of Walsh v. New York State Comptroller , 34 N.Y.3d 520, 539, 122 N.Y.S.3d 209, 144 N.E.3d 953 [2019] ; Matter of Petterson , 17 N.Y.2d at 38, 268 N.Y.S.2d 1, 215 N.E.2d 329, quoting People v. Ryan , 274 N.Y. 149, 152, 8 N.E.2d 313 [1937] ).
As an initial matter, the court rejects respondents’ contention that the presumption of validity of petitioner's second marriage to Firefighter McClean does not apply here. In Grabois v. Jones , 89 F.3d 97 (2d Circuit 1996), the court held that "[i]t is also well-established New York law that when a court is confronted with the claim that a formal second marriage is invalid because of the existence of a valid first marriage, a strong presumption of validity attaches to the second marriage [internal citations omitted]. The presumption of the validity of the second marriage, moreover, grows stronger and stronger where a substantial injustice would be created by invalidating that marriage." The Grabois court further noted "that the presumption favoring the validity of the second marriage varies in its force with the attendant facts and circumstances" pointing to the holding in Dolan v. Celebrezze ,381 F.2d 231, 237-38 (2d Cir. 1967) that "[t]he decisions that have held the second marriage to be valid on the basis of the presumption are explicable in terms of effectuating a particular public policy such as upholding legitimacy [or] favoring the participation in the decedent's estate of one who lived with him as his spouse ..." Moreover, "where, as here, the party actually challenging the validity of the marriage is a total stranger to the marital relation, the presumption becomes even stronger" ( Seidel v. Crown Indus. , 132 A.D.2d 729, 730, 517 N.Y.S.2d 310 [3d Dept. 1987] ; see Matter of Meltzer v. McAnns Bar & Grill , 85 A.D.2d 826, 445 N.Y.S.2d 655 [3d Dept. 1981] ; Matter of Esmond v. Lyons Bar & Grill , 26 A.D.2d 884, 274 N.Y.S.2d 225 [3d Dept. 1966] ; Matter of Inkpen v. Lehigh Constr. Co. , 12 A.D.2d 692, 207 N.Y.S.2d 700 [3d Dept. 1960] lv denied 9 N.Y.2d 609, 210 N.Y.S.2d 1025, 172 N.E.2d 293 [1961] ).
Based upon the record herein, which presents a unique set of circumstances, the court finds that petitioner is hereby deemed the legal spouse of Firefighter McClean such that she qualifies for the WTC death benefit. In this regard, the court finds that for over 20 years, petitioner was, for all intents and purposes, the spouse of a brave firefighter who was first caused to suffer a career ending injury at the site of the WTC terrorist attack, and then later developed a cancer linked to his exposure to numerous toxins while performing recovery and cleanup at the site. It is undisputed that petitioner was by Firefighter McClean's side as he battled his injuries and illnesses linked to his work at the WTC site. Here, petitioner and Firefighter McClean were married in 2000 during which time they lived together, maintained a home together, shared assets/funds, and held themselves out to the public as husband and wife for over 20 years. More importantly, the court notes that during a majority of their time together, Firefighter McClean was recovering from injuries he sustained as well as cancer that he developed due to his work at the WTC site. Under these circumstances, it would be contrary to the spirit and intent of the WTC law to deny petitioner the death benefit pension she seeks herein. Accordingly, in the interest of justice and equity, that branch of the petition seeking to annul respondents’ determination denying her application for a line-of-duty death benefit is granted, and petitioner's application for a line-of-duty death benefit pursuant to the WTC legislation is hereby remanded back to respondents for reconsideration consistent with the decision of this court. The foregoing constitutes the decision and order of the court.