Opinion
No. 8058/10.
2010-07-26
In the Matter of the Application of Marie CORRIGAN, Individually and as Administrator of The Estate of Captain James J. Corrigan, Petitioners, v. The FIRE DEPARTMENT OF the CITY OF NEW YORK, and The National September 11 Memorial and Museum at the World Trade Center Foundation, Inc., Respondents.
AUGUSTUS C. AGATE, J.
In this Article 78 proceeding, petitioner seeks a judgment ordering the respondents Fire Department of the City of New York (hereinafter “FDNY”) and The National September 11 Memorial and Museum at the World Trade Center Foundation, Inc. (hereinafter “Memorial”) to comply with Chapter 468 of the 2002 Consolidated Laws of New York and confirm the status of Captain James J. Corrigan as an active member of the FDNY and include his name under the sub-group heading “FDNY” on the section of the Memorial honoring the First Responders who died at the World Trade Center on September 11, 2001. Respondent Memorial separately moves for an order dismissing the Article 78 proceeding.
Petitioner Marie Corrigan is the widow of Captain James J. Corrigan and the Administrator of his estate. Captain Corrigan was a retired firefighter, who was employed by the respondent FDNY for 25 years. Captain Corrigan was killed when the south tower of the World Trade Center collapsed following the terrorist attacks on September 11, 2001. At the time of his death, Captain Corrigan was employed as a Fire and Life Safety Coordinator at the World Trade Center and was engaged in rescue operations following the attacks on the World Trade Center. Petitioner contends that although Captain Corrigan was retired from the FDNY, he worked in conjunction with and under the command of FDNY officials at the World Trade Center after the terrorist attacks.
Respondent Memorial is a not-for-profit corporation currently in the process of constructing a memorial to the victims of both the 1993 and 2001 World Trade Center terrorist attacks. The memorial is scheduled to open on September 11, 2011, the tenth anniversary of the attacks on the World Trade Center. The memorial will consist of, among other things, two massive one-acre memorial pools set within the footprints of the Twin Towers, with waterfalls cascading down their sides. Bronze parapets will list the names of the nearly 3,000 victims of the attacks, separated into nine groupings. Within the groupings, the names will be further clustered to reflect significant relationships so that those who shared a bond during their life can be memorialized together.
The ninth grouping, labeled as “First Responders”, will honor the more than 400 first responders who died at the World Trade Center. Pursuant to the Memorial's Names Verification & Arrangement Policy and Procedures, a “First Responder” is defined as a “recipient of the 9/11 Heroes Medal of Valor awarded by the White House on September 9, 2005.” The “First Responders” grouping will be further divided into sub-groups based on the agency and unit to which the victim belonged. Two of these sub-groups will be labeled “FDNY” and “World Trade Center Fire Safety.” The Memorial did not make a determination as to which sub-group was appropriate for each of these victims. Rather, pursuant to the above policy, the various agencies, such as FDNY, submitted a list of their victims to the Memorial and, based upon these lists, the Memorial determined under which sub-group to place a victim's name. As stated in the policy, “First Responders will be listed by inscribed sub-groupings pertaining to their agencies and units within this grouping, as confirmed by the agencies.”
The FDNY did not include Captain Corrigan on its list of victims to the Memorial and, thus, the Memorial did not plan to include his name in the FDNY sub-group. It is the position of the FDNY that inasmuch as Captain Corrigan was not on active duty on September 11, he cannot be awarded the same honors as those who were killed while on active duty with the FDNY. Captain Corrigan, however, was included on the list of victims by Silverstein Properties, the owner of the World Trade Center complex, and the Memorial currently plans to place his name in the sub-group of “World Trade Center Fire Safety.” Petitioner asserts that pursuant to an act of the New York State Legislature, Captain Corrigan was reinstated as an active duty member of the FDNY as of September 11, 2001 and, thus, should be listed in the FDNY sub-grouping on the Memorial. Respondent FDNY opposes the application.
Captain Corrigan joined the FDNY in 1969 and served with Ladder Company 147 in Brooklyn until 1978. He was promoted to lieutenant in October 1978 and served as lieutenant of Engine Company 55 in Little Italy in Manhattan until June 1984. From October 1984 until November 1986, Captain Corrigan served as a lieutenant in Engine Company 10 in the Financial District in Manhattan. He was promoted to Captain in November 1986. Between November 1986 and 1992, Captain Corrigan served as a captain at ladder Company 10. In 1992, Captain Corrigan was transferred to Engine Company 320 in Bayside, Queens. He retired from the FDNY in March 1994. Following his retirement, Captain Corrigan was employed by Silverstein Properties and became the Fire and Life Safety Coordinator for the World Trade Center.
On the morning of September 11, 2001, immediately after Flight 11 crashed into the North Tower of the World Trade Center, Captain Corrigan led the evacuation of approximately 20 children from a day care center located in the World Trade Center. According to the petitioner, after the evacuation, Captain Corrigan went back into the World Trade Center and assisted the FDNY in rescue operations, although he was under no obligation to do so. Petitioner asserts that FDNY command directed Captain Corrigan to go in to the South Tower to establish communications with FDNY units already in that tower. Captain Corrigan was last seen alive in the South Tower working with Battalion Chief Joseph Grzelek attempting to establish communications with FDNY units on the upper floors of the tower in order to instruct them to evacuate the building. Captain Corrigan was killed when the south tower collapsed at 9:59 A.M. that morning. A funeral was held for Captain Corrigan on April 1, 2002 after his body was recovered at the remains of the World Trade Center. Captain Corrigan received the 9/11 Heroes Medal of Valor awarded by the United States government on September 9, 2005.
On August 20, 2002, Chapter 468 of the Laws of 2002 was enacted into law. Section 1 of the Act, which was passed by the New York State legislature and signed by Governor George Pataki, states that “[t]his act enacts into law major components of legislation which are necessary to redress the catastrophic effects of terrorist attacks on the World Trade Center on September 11, 2001 on the survivors of certain New York City firefighters.” Part A, Section 3 of the Act, which pertains to Captain Corrigan and two other retired firefighters killed at the World Trade Center, reads, in pertinent part, as follows:
“The legislature further finds and determines that James J. Corrigan ... were formerly employed as firefighters by the fire department of the city of New York and were killed while retired from such employment and in the course of firefighting at the World Trade Center on September 11, 2001. Notwithstanding any provision of any general, special, or local law to the contrary, the provisions of section 208–f of the general municipal law shall be deemed to apply to the widows and children of James J. Corrigan ... and such widows and children shall be eligible for the special accidental death benefit provided by such section upon the same terms and conditions as other persons eligible to receive benefits pursuant to such section. Furthermore, James J. Corrigan ... shall be deemed, as of September 11, 2001 to have been fully reinstated to full active employment status, at their highest achieved rank and status, on and as of September 11, 2001 without any dimunition or return of their previously received retirement benefits.”
By letter dated May 26, 2009, the President and CEO of respondent Memorial invited petitioner to participate in the process of verifying the listing and arranging of Captain Corrigan's name on the memorial. Petitioner was asked to complete a Name Verification and Arrangement Form. The attachments to the letter indicated that Captain Corrigan would be included in the “First Responders” Group and under the sub-group of “World Trade Center Fire Safety, Life Safety & Security.” Petitioner's son, Brendan Corrigan, crossed out the “World Trade Center Fire Safety” sub-group, wrote in “FDNY” in its place, and mailed the form back to the Memorial.
On August 20, 2009, the Memorial sent an email to Brendan Corrigan informing him that his father's name would be listed in the “WTC Life Safety” sub-group. Brendan Corrigan responded, via email, informing the Memorial that Chapter 468 of the Laws of 2002 reinstated his father to full active duty status. In his email, Brendan Corrigan stated that his father “was a fireman that day, in his heart, by his actions, and by N.Y. State law.” He inquired about an appeals process so that his father can be recognized as a firefighter. The Memorial responded with an email stating that the names to be listed under each agency and unit will be confirmed by those agencies. The Memorial also stated that FDNY and Silverstein Properties provided it with the lists of names to be inscribed under certain headings. It advised Brendan Corrigan to contact the FDNY to address his concerns. On August 25, 2009, the Memorial sent a similar email to Brendan Corrigan informing him that the path for appeals to have his father's name listed under FDNY is to consult with the FDNY.
By letter dated October 27, 2009 to Salvatore Cassano, the Chief of the FDNY, the attorney for the Corrigan family, R. James DeRose, III, requested that the FDNY confirm Captain Corrigan's status as an active duty member of the FDNY on September 11, 2001 so that he may be listed as member of the FDNY on the Memorial. In his letter, Mr. DeRose noted that Captain Corrigan, alongside units of the FDNY, helped to coordinate the response to the terrorist attacks on September 11. He stated that “[t]here is no doubt that Captain Corrigan was acting as a firefighter and assisting the FDNY's efforts at the time he was killed.” Mr. DeRose further noted that Captain Corrigan was restored to full active status with the FDNY, as of September 11, 2001, pursuant to New York State Legislation. Mr. DeRose stated in his letter that the FDNY's refusal to confirm Captain Corrigan as a fully active FDNY Captain on September 11, 2001 is improper and expressly refuted by the New York State legislation.
In response to Mr. DeRose's letter, Daniel Shacknai, the Deputy Fire Commissioner for the Bureau of Legal Affairs, in a letter dated December 7, 2009, wrote that at the time of his death, Captain Corrigan was not an employee of the FDNY or the City of New York. Mr. Shacknai further noted that since 1865, retired members of the FDNY who are killed in “situations related to fire activity have never been honored in the same manner as active duty personnel killed in the line of duty.” Mr. Shacknai also stated that the FDNY did not interpret the state law to require the FDNY to provide retired members of the FDNY who are killed by fire in the course of their private employment with “the same medals or honors bestowed upon active personnel killed in the line of duty.”
Petitioner subsequently commenced this Article 78 proceeding to confirm Captain Corrigan's status as an active duty member of the FDNY at the time of his death so that he can be included in the FDNY sub-group on the Memorial to the victims of the terrorist attacks. In support of her application, petitioner contends that the refusal of the FDNY to confirm Captain Corrigan's active duty status on September 11, 2001 is arbitrary and capricious. Petitioner argues that Chapter 468 of the Laws of 2002 restored Captain Corrigan to active employment status with the FDNY as of September 11, 2001, and the FDNY has refused to comply with this law without any legal basis. Petitioner argues that one of the intents of the legislation was that Captain Corrigan would be posthumously acknowledged and treated as an active duty member of the FDNY for all intents and purposes. Petitioner maintains that the refusal of the FDNY to confirm Captain Corrigan's active duty status is based only on bad faith considerations rooted in an “animus certain high-ranking FDNY officers bear towards” petitioner.
Respondent FDNY, in opposition to the application, argues that the FDNY has a long tradition of awarding an FDNY Medal of Valor to active duty FDNY personnel who died in the line of duty and adding the name of such personnel to a Wall of Honor maintained by the FDNY. Retired firefighters, however, are not honored in the same manner as active duty personnel killed in the line of duty. Inasmuch as Captain Corrigan was not in the active duty of the FDNY on September 11, 2001, the FDNY maintains that he is not entitled to the same ceremonial honors as those who died in the line of duty.
Respondent also contends that petitioner's reliance on Chapter 468 of the Laws of 2002, is misplaced. According to the FDNY, this legislation was passed to extend economic benefits to the families of specific individuals who died on September 11, 2001. It was not meant to apply to honors, merits, memorials, ceremonies, decorations or other awards. The FDNY notes that pursuant to the legislation, the family of Captain Corrigan, as well as the two other retired firefighters, received their City pension under section 13–347 of the Administrative Code and the New York State Special Accidental Death Benefit under section 208–f of the General Municipal Law, retroactive to September 11, 2001.
In further support of this argument, the FDNY notes that in 2005, State Senator Vincent Leibell introduced legislation which would have required the FDNY to provide Captain Corrigan and the other two retired firefighters “with all of the benefits, honors, merits, ceremonies, recognitions, awards and status provided to firefighters in active service” who died at the World Trade Center on September 11, 2001. The FDNY notes that this proposed bill, Senate Bill Number 5042–B, was vetoed by Governor Pataki. Upon vetoing the bill, the Governor stated that he approved Chapter 468 of the Laws of 2002 in recognition of the “service and sacrifice” of the three retired firefighters and to “ensure the financial security of their survivors.” In his veto, the Governor also stated that “Chapter 468 addressed only economic matters and did not require the City and FDNY to provide these retired firefighters with the same ceremonial benefits as the 343 active firefighters” who died at the World Trade Center on September 11.
The respondent Memorial submits its own application to dismiss the Article 78 proceeding. In support of its motion, the Memorial asserts that the petition is barred by the Statute of Limitations. The Memorial asserts that the petitioner knew by August 2009, at the latest, that the request to include Captain Corrigan in the FDNY sub-group on the Memorial would not be honored. In addition, the Memorial contends that Chapter 468 imposes no legal obligation on it to place captain Corrigan in the FDNY sub-group inasmuch as the law was not meant to confer any honors or awards upon Captain Corrigan.
The court will first address the motion by the Memorial to dismiss the proceeding on the ground that the Statute of Limitations has expired. An Article 78 proceeding must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner or, after the respondent's refusal, upon the demand of the petitioner, to perform its duty. (CPLR 217[1]; Town of Harrison Police Benevolent Assn., Inc. v. Town of Harrison Police Dept., 69 AD3d 639, 640–641 [2010].) Here, the Statute of Limitations did not begin to run until the FDNY refused petitioner's demand that it confirm Captain Corrigan's status as an active duty member of the FDNY on September 11. It was not until the letter by Daniel Shacknai to petitioner's counsel, dated December 7, 2009, that the FDNY unequivocally refused to treat Captain Corrigan in the same manner as those firefighters who died while on active duty. Indeed, Mr. Shacknai's letter states that the FDNY does not interpret State law to require the Department, “in the face of 144 years of tradition, to provide retired members who may be killed by fire in the course of their private, non-City, non-FDNY employment with the same medals or honors bestowed upon active personnel killed in the line of duty.” Thus, this proceeding, which was commenced on April 1, 2010, is timely.
The respondents assert that the proceeding is time-barred because the FDNY made repeated statements regarding Captain Corrigan's status prior to 2009. However, those prior statements did not deal with Captain Corrigan's status for purposes of the National September 11 Memorial. For example, a letter from the Fire Commissioner Nicholas Scoppetta to State Senator Vincent Leibell on October 29, 2002 dealt with the awarding of the Medal of Valor and the placement of names on the FDNY's Wall of Honor. Similarly, the letter by Commissioner Scoppetta to Council Member Tony Avella, dated April 26, 2005, does not address the issue of Captain Corrigan's status for purposes of the National September 11 Memorial.
Further, the respondent Memorial never explicitly refused the request of the Corrigan family that Captain Corrigan be included in the FDNY sub-group. A reading of the emails sent to Brendan Corrigan from the Memorial clearly shows that he was advised to speak with the FDNY about the placement of his father's name on the memorial. It was apparent that the Memorial would defer the decision on the placement of Captain Corrigan's name to the FDNY.
The court will now address petitioner's application under Article 78 of the CPLR. Petitioner appears to be seeking relief under CPLR 7803(1) and 7803(3). Under CPLR 7803(1), an Article 78 proceeding in the nature of mandamus can be commenced where a body or officer has failed to perform a duty enjoined upon it by law. Mandamus is an extraordinary remedy where the petitioner seeks to compel the performance of a purely ministerial act where there is a clear legal right to the relief demanded. (Legal Aid Socy. Of Sullivan County, Inc. v. Scheinman, 53 N.Y.2d 12, 16 [1981].) In addition, there must exist a corresponding nondiscretionary duty on the part of the agency to grant that relief. (Gimprich v. Board of Educ. Of the City of New York, 306 N.Y. 401, 406 [1954];Matter of Anonymous v. Commissioner of Health, 21 AD3d 841, 842 [2005].)
Petitioner argues that respondents failed to comply with Chapter 468 of the Laws of 2002. Chapter 468, as noted above, deemed Captain Corrigan, as of September 11, 2002, to be fully reinstated to full active employment status with the FDNY. Even if this court is to accept the argument that Chapter 468 contains no limitations with respect to Captain Corrigan's reinstatement, the extraordinary remedy of mandamus to compel, under CPLR 7803(1), is not the appropriate form of relief herein. The respondents were not obligated to perform a ministerial act involving a non-discretionary duty. Indeed, the FDNY was not required to bestow any honors or awards to Captain Corrigan under Chapter 468. It was not required under Chapter 468 or any other law to confirm Captain Corrigan's active duty status to the Memorial or any other body. The Memorial simply decides under which “First Responder” sub-grouping to place an individual when that individual's status is confirmed by their agency or unit. It is the view of the court that petitioner has not shown a “clear legal right to relief”. Thus, mandamus to compel does not lie under the circumstances presented by the petitioner.
Turning to petitioner's arguments pursuant to CPLR 7803(3), it is well settled that the court's power to review an administrative action is limited to whether the determination has a rational basis and is neither arbitrary nor capricious. (Matter of Pell v. Board of Educ of Union Free School Dist. No. 1 of the Towns of Scarsdale and Mamaroneck, Westchester County, 34 N.Y.2d 222, 230–231 [1974];Claudia E. v. Ryan, 61 AD3d 865, 865 [2009];Westmoreland Apt. Corp. v. New York City Water Bd., 294 A.D.2d 587, 588 [2002].) A determination made “without sound basis in reason and without regard to the facts” is arbitrary and capricious. (Scherbyn v. Wayne–Finger Lakes Bd. Of Coop. Educ. Servs., 77 N.Y.2d 753, 758 [1991].)
The court finds, based upon the express language of Chapter 468 of the Laws of 2002, that the decision by respondent FDNY not to confirm Captain Corrigan's status as an active member of the FDNY as of September 11, 2001 is arbitrary and capricious. In reaching its decision, the court must first look at the actual words of the Act. Where statutory language is clear and unambiguous, it should be construed so as to give effect to the plain meaning of the words. (Pultz v. Economakis, 10 NY3d 542, 547 [2008];People v. Sullivan, 74 N.Y.2d 305, 309 [1989];Patrolmen's Benevolent Assn. of City of New York v. City of New York, 41 N.Y.2d 205, 208 [1976].) Further, “courts are not to legislate under the guise of interpretation.” (Kennedy v. Kennedy, 251 A.D.2d 407, 408 [1998].)
Section 3 of the Act provides that Captain Corrigan's widow and children shall be eligible for the special accidental death benefits pursuant to General Municipal Law § 208–f. Section 3, however, also states: “Furthermore, James J. Corrigan ... is deemed, as of September 11, 2001, to have been fully reinstated to full active employment status at their highest achieved rank and status, on and as of September 11, 2001 without any dimunition or return of their previously received retirement benefits.” This is a new sentence separate and apart from the prior one dealing with the eligibility for special accidental death benefits. The placement of the word “furthermore” also indicates that an additional point was being made by the Legislature. Although this sentence includes a reference to retirement benefits, it does not qualify the reinstatement to full active employment status. For example, it does not state that the firefighters are reinstated to full active employment status solely for the purposes of pension or other economic benefits. Such language could have been placed in the Act had the legislature wanted to limit the purposes of the reinstatement to active duty.
While respondents maintain that the reinstatement in Chapter 468 was meant solely so Captain Corrigan's survivors could receive certain economic benefits, the legislation does not expressly contain this limitation. While respondents assert that the preamble to the legislation indicates that the intent was only to provide economic benefits to the survivors of certain firefighters, this section is not part of the law. Indeed, it has been held that the title of a statute and the heading of a section cannot limit the plain meaning of a text. (Brotherhood of R.R. Trainmen v. Baltimore & O.R. Co., 331 U.S. 519, 528–529 [1947].) “[T]hey cannot undo or limit that which the text makes plain.” (Brotherhood of R.R. Trainmen v. Baltimore & O.R. Co., 331 U.S. at 529.)
The court also notes that State Senators Vincent Leibell and Frank Padavan, the sponsors of Chapter 468 in the State Senate, wrote separate letters to Mayor Michael Bloomberg, seeking his assistance in having the names of the three fallen retired firefighters included in the FDNY's own Wall of Honor. In his letter dated September 20, 2002, Senator Leibell stated that pursuant to the legislation enacted, Captain Corrigan and the two other retired firefighters would be “posthumously decorated and recognized for the valor and service they gave to their City, State and Nation.” He also states that the decision not to place them on the FDNY's Wall of Honor disregards the legislation enacted. In his letter to the Mayor, dated September 9, 2003, Senator Padavan noted that Chapter 468 reinstated Captain Corrigan and the other two retired firefighters to active duty “so that they would be properly included with their brothers'.”
Similarly, Assemblywoman Catherine Nolan, who introduced the bill in the Assembly, wrote a letter dated August 13, 2002, one week before it was signed into law, in support of the bill. While Assemblywoman Nolan noted that the bill overall seeks to improve the benefits due survivors of firefighters killed in the line of duty at the World Trade Center, she also wrote, in a separate paragraph, that the bill re-instates Captain Corrigan and the two other retired firefighters to active duty. She further wrote that the “re-instatement will allow their names to be added to the 343 of their brothers who have received universal recognition for their bravery.” These statements by the bill sponsors further indicate that Captain Corrigan's re-instatement was not meant to apply solely to economic issues.
The respondents' reliance on Governor Pataki's veto of a proposed bill in 2006 which would have required that the three retired firefighters who died at the World Trade Center be given all honors, merits and awards as provided to the firefighters who died while on active duty is similarly without merit. The Governor's memorandum cannot be used to construe a law that was enacted four years earlier. To do so would provide the Executive branch with the power to engage in statutory construction, which properly belongs to the judiciary. (People v. Glubo, 5 N.Y.2d 461, 474 [1959].) Moreover, in his memorandum, the Governor states that he is basing his disapproval on the “strong objections of the City and FDNY,” not on any provision set forth in the 2002 law.
In reaching its decision that the FDNY has acted in an arbitrary manner, the court also notes that in certain circumstances over the years, the FDNY has treated Captain Corrigan similarly to the active duty firefighters who died on September 11, even with respect to ceremonial honors. For example, the official FDNY page on the New York City website lists Captain Corrigan as a member of the FDNY on the “Captain's WTC Memorial” page. The website contains a photograph of a section of the FDNY Memorial wall, with the words “Members of the New York Fire Department who died in the performance of their duty.” Captain Corrigan is included on this list, and, thus, the FDNY is acknowledging that he was killed in the line of duty. However, it will not confirm this same status with respect to National 9/11 Memorial.
In a similar display of the FDNY's arbitrary behavior, in FDNY Department Order No. 78, dated August 28, 2008, the FDNY announced a 9/11 Memorial Motorcade honoring its lost members in Northeast Queens. The announcement states that the motorcade will make various stops “to honor lost FDNY members ...” The announcement lists the various firefighters who were honored, including Captain Corrigan. Furthermore, Captain Corrigan was included in an FDNY Memorial Service held at Madison Square Garden on October 12, 2002. Indeed, the FDNY concedes that Captain Corrigan's name was read aloud during the roll call at this service, and his name and picture appeared in the memorial book. Thus, it appears that at certain times the FDNY bestowed Captain Corrigan with the same ceremonial honors received by the FDNY members who were on active duty when they were killed.
The FDNY's subsequent treatment of Captain Corrigan's two sons, Brendan and Sean, further reveals that its refusal to confirm his status as active was arbitrary and capricious. After Captain Corrigan's death, his sons joined the FDNY as probationary firefighters. They took the Open Competitive Fire Exam in December 2002. Both Brendan and Sean Corrigan received a “legacy credit” on their exams. A candidate qualifies for a legacy credit if his or her parent died while engaged in the discharge of his or her duties as a uniformed member of the FDNY. Thus, in this instance, too, the FDNY is also acknowledging that Captain Corrigan was killed while performing his duties for the FDNY.
While this court hesitates to become embroiled in the internal decisions of the FDNY regarding a matter of such a sensitive nature, there is simply no rational basis for the FDNY's position herein given the circumstances of Captain Corrigan's death, the legislation enacted thereafter, and the FDNY's own manner of honoring and acknowledging his sacrifice.
Accordingly, the petition is granted to the extent that the respondent FDNY shall confirm the status of Captain James J. Corrigan as an active duty member of the FDNY as of September 11, 2001 to respondent Memorial so that his name will be included in the sub-group heading “FDNY” on that part of the September 11 memorial honoring First Responders.
The motion by the respondent Memorial to dismiss the proceeding is denied.
Settle Judgment.