Opinion
No. 400054/14.
12-09-2014
Elmer G. SANTIAGO, Plaintiff(s) v. Andrew M. CUOMO, New York State Senate, Defendant(s).
Elmer Santiago, Bronx, Plaintiff pro se. Eric T. Schneiderman, Attorney General of the State of New York, by Helena Lynch, Assistant Attorney General, and Roderick L. Arz, Assistant Attorney General, New York, for Defendants.
Elmer Santiago, Bronx, Plaintiff pro se.
Eric T. Schneiderman, Attorney General of the State of New York, by Helena Lynch, Assistant Attorney General, and Roderick L. Arz, Assistant Attorney General, New York, for Defendants.
Opinion
RICHARD F. BRAUN, J.
This in an action seeking to compel defendants “to amend the current NYS World Trade Center Presumption Law to allow a person who served on September 11, 2001, to have the same and equal right as an active, or retired member of a retirement system, if such a person left service before the enactment of the law in August of 2005, if such person meets the qualifying requirements of the NYS World Trade Center Presumption Law, and have filed the required World Trade Center Notice of Participation protecting the rights of the individual, and allow the individual to file an Accidental Disability Retirement pension with their respective retirement system.” Defendants move to dismiss the complaint in this action, pursuant to CPLR 3211(a)(2), (5), (7), and (10), including on the grounds of res judicata and/or collateral estoppel, and under the separation of powers doctrine. Alternatively, defendants argue that, if the complaint is not dismissed, the City of New York and the Board of Trustees of the New York Police Pension Fund (N.Y.CPPF) should be joined as necessary parties, and, if the court converts this action to an article 78 proceeding, defendants be given time to answer “the complaint”.
Plaintiff claims that his disability was the result of his work as a police officer at the sites of the World Trade Center and Fresh Kills Landfill in the recovery efforts there on and after September 11, 2001. Plaintiff was denied an accidental disability retirement pension because he resigned before the law was enacted. Plaintiff contends that the denial violated his due process rights under the 14th Amendment of the United States Constitution. Administrative Code of City of N.Y. § 13–252.1 (the World Trade Center presumption law) creates a presumption for police officers who participated in the rescue, recovery, and/or cleanup efforts at the World Trade Center site after the September 11th attacks, which presumes that their disabilities were incurred in the performance of their duties as police officers and not due to any “willful negligence” on their parts (see Matter of Bitchatchi v. Board of Trustees of the N.Y. City Police Dept. Pension Fund, Art. II, 20 NY3d 268, 281 [2012] [“The legislature created the WTC presumption to benefit first responders because of the evidentiary difficulty in establishing that non-trauma conditions, such as cancer, could be traced to exposure to the toxins present at the WTC site in the aftermath of the destruction.”].)
The prayed for injunctive relief—compelling the Legislature and Governor to amend a law—violates the separation of powers doctrine (see People v. Kupprat, 6 N.Y.2d 88, 90 [1959] [“We must read statutes as they are written and, if the consequence seems unwise, unreasonable or undesirable, the argument for change is to be addressed to the Legislature, not to the courts.”]; Schwartz v. Rockefeller, 38 A.D.2d 995, 996 [3rd Dept 1972] [“Keeping in mind the doctrine of the separation of powers, it is an exceedingly delicate matter for courts to interfere with the action of a lawmaking body.”].) It is a “bedrock” principle of our tri-partite system of government that the separation among the three branches thereof not be intruded upon (Maron v. Silver, 14 NY3d 230, 258, 261 [2010] ). This court does not act to step on the powers of the other two branches. It cannot and will not tread upon their functions and grant the relief sought by plaintiff. Thus, the motion must be granted dismissing plaintiff's complaint.
Furthermore, in Matter of Santiago v. Kelly (35 Misc.3d 631, 635, 638 [Sup Ct, N.Y. County 2012] ), plaintiff previously sought article 78 review of the denial of his application for an accidental disability retirement pension on the same due process grounds that he now advocates. The court there upheld the New York City Police Pension Fund's determination that the World Trade Center presumption law only applies to active or retired members of the New York City or State retirement systems and not to plaintiff who had resigned, and that as a result plaintiff had no property interest in an accidental disability retirement pension, so that his procedural due process claim is without merit (Matter of Santiago v. Kelly, 35 Misc.3d at 638 ). Although defendants herein were not parties there but rather the respondents were former New York City Police Commissioner Raymond Kelly and certain New York City entities, the current claim is barred by collateral estoppel because plaintiff had a full and fair opportunity in that proceeding to litigate the issues in this action (see Coffey v. CRP/Extell Parcel I, L.P., 117 AD3d 585 [1st Dept 2014] ).
Further, the claim is also barred by res judicata (see Matter of Hunter, 4 NY3d 260, 269 [2005] ; Padiyar v. Albert Einstein Coll. of Medicine of Yeshiva Univ., 73 AD3d 634, 635 [1st Dept 2010] ). In Tuitt v. State (42 Misc.3d 1233[A], 2014 N.Y. Slip Op 50315[U], *2–3 [Sup Ct, N.Y. County 2014] ), plaintiff here was joined as an additional plaintiff there, by way of an amended complaint that the court there held it would consider because the defendants did not reject the amended complaint. A similar due process claim seeking injunctive relief to amend the World Trade Center presumption law was denied by the court in Tuitt v. State (42 Misc.3d 1233[A], 2014 N.Y. Slip Op 50315[U], *5 [Sup Ct, N.Y. County 2014] ). While the plaintiff in Tuitt sought relief against the State of New York, and plaintiff now names the Governor and the State Senate, plaintiff is seeking the same relief from defendants in their official roles (cf. Simmons v. New York City Health & Hosps. Corp., 71 AD3d 410, 411 [1st Dept 2010] [“While defendant was not a party to the prior action, as defendant doctor's employer, required to indemnify defendant doctor in the prior action, it was in privy with defendant doctor, the real party in interest in that action.” (internal citations omitted) ].) In Tuitt, the court dismissed the claims against the State because the plaintiff(s) failed to allege “that the State was either the party responsible for enforcing the challenged statute or was responsible for the imposition of any penalties connected therewith”, and because the statute in question was passed by the City of New York, not the State (42 Misc.3d 1233 [A], 2014 N.Y. Slip Op 50315[U], *4 [Sup Ct, N.Y. County 2014], citing New York State Rest. Assn. v. State of New York, 105 A.D.2d 619 [1st Dept 1984] ). In addition, as to the other defendants, the court in Tuitt held that the claim seeking a declaration on constitutional grounds that involved questions of fact surrounding the claimed disability and pension application was subject to the four month statute of limitations governing an article 78 proceeding where such claims would properly be adjudicated, and that, even if the claim was not time-barred, plaintiff failed to make out a procedural or substantive due process violation (42 Misc.3d 1233[A], 2014 N.Y. Slip Op 50315[U],*5 [Sup Ct, N.Y. County 2014], citing Thomas v. Tarpley, 268 A.D.2d 258 [1st Dept 2000] ).
As Tuitt held, plaintiff fails to state a cause of action (42 Misc.3d 1233[A], 2014 N.Y. Slip Op 50315[U],*5 [Sup Ct, N.Y. County 2014] ). On a motion pursuant to CPLR 3211(a)(7), a complaint must be liberally construed, the factual allegations therein must be accepted as true, the plaintiff must be given the benefit of all favorable inferences therefrom, and the court must decide only whether the facts alleged fall under any recognized legal theory (Miglino v. Bally Total Fitness of Greater NY, Inc., 20 NY3d 342, 351 [2013] ; Lee v. Dow Jones & Co., Inc., 121 AD3d 548 [1st Dept 2014] ; Siegmund Strauss, Inc. v. East 149th Realty Corp., 104 AD3d 401, 403 [1st Dept 2013] ). Plaintiff fails to state a due process claim in that he has no property right in an accidental disability retirement pension because he resigned from the New York Police Department (Tuitt v. State, 42 Misc.3d 1233[A], 2014 N.Y. Slip Op 50315[U],*5 [Sup Ct, N.Y. County 2014]; Matter of Santiago v.. Kelly, 35 Misc.3d at 638 ; cf. Matter of Sheridan v. Ward, 125 A.D.2d 274, 275 [1st Dept 1986] [“Administrative Code of the City of New York § B18–42.0 provides that eligibility for ordinary disability retirement is limited to a member' of the Police Pension Fund. Membership in this Fund is limited by Administrative Code § B18–12.0 (a) to persons in city-service'.”].)
Plaintiff and others who acted admirably on and after September 11th truly represent the best in American public service. However, a constitutionally proper request for the relief that plaintiff seeks must be addressed to the appropriate executive and legislative branches, as only they can amend the law at issue. The motion had to be granted and the complaint dismissed, by separate decision and order of this court, dated November 26, 2014.