A Court Rightfully Protects Spouses of WTC Firefighters

New York Law Journal

When I was in grade school, each day began with the same ritual: stand at attention facing our nation’s flag, place your right hand over your heart, and state, in unison with your classmates: “I pledge allegiance to the Flag of the United States of America, and to the Republic for which it stands, one Nation under God, indivisible, with liberty and justice for all.”

An argument can be made—a convincing argument, in fact—that lawyers should begin their workday as follows: stand at attention, place their right hand over their heart, and state, in unison with their fellow colleagues: “As a lawyer, just because I can make an argument, does not mean that I should make an argument.”

That backdrop leads us to a discussion of Justice Karen B. Rothenberg’s recent and, in my strong view, exceedingly praiseworthy decision in McClean v. The Bd. of Trustees of the Fire Dep’t of the NYC Pension Fund (NYLJ 3/21/2023, Sup. Ct., Kings Cty.).

In McClean, the petitioner, Kathleen McClean, moved for an order annulling the determination of the Board of Trustees of the Fire Department of the City of New York and the New York City Fire Pension Fund which denied her application for a Line-of-Duty Death Benefit pursuant to what is known as the World Trade Center (WTC) Legislation arising from the death of her husband, retired firefighter Dennis B. McClean (“Firefighter McClean”).

Kathleen McClean married Firefighter McClean on July 25, 2000. On 9/11, Firefighter McClean responded to the WTC attack and worked at the site for several months thereafter. In April 2002, Firefighter McClean was injured at the WTC site when a metal beam struck his leg and fractured it in several places. Firefighter McClean thereafter obtained a disability pension in 2002. In 2009, Firefighter McClean was diagnosed with prostate cancer; in 2014, the Pension Medical Board linked his cancer to his WTC exposure (to toxins while working at the site) and his pension was reclassified to that of a WTC accidental disability pension. In September 2021, Firefighter McClean died of prostate cancer.

Kathleen McClean applied for an accidental death benefit pension which would continue payment of her late husband’s salary for the rest of her life. In December 2021, the FDNY Pension Fund’s Medical Board recommended that her application be granted. However, in January 2022, Kathleen McClean received a letter from an attorney for the Fire Pension Fund which stated, in part:

Based on the applicable statutes, General Municipal Law §208-f and 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, making it invalid. Therefore, despite the recommendation outlined in the Medical Board’s…report…you are ineligible for the subject Line of Duty Death Benefit at this time.

Here we go again. At this point, if your pen has just dropped, or you feel the need to step away from this article before you continue reading, you are not alone.

The facts speak for themselves, as noted in a letter that Kathleen McClean’s lawyer wrote to the respondents: (1) before marrying Firefighter McClean, Kathleen McClean was married to Serge Gauvard, a drug abuser “who abandoned her years before she had even met McClean”; (2) Kathleen McClean “had no contact from Gauvard for many years as he had gone missing”; (3) Kathleen McClean obtained a judgment from the New York State Supreme Court, New York County, on June 9, 2015 dissolving her marriage to Gauvard; and (4) Gauvard died of a drug overdose in 2019.

In response to that letter, counsel for the Pension Fund, despite having this information, and after having “consulted with the New York City Law Department,” stood firm in the denial of the death benefit but noted that “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.”

Regarding the responsive letter from the Pension Fund—Survey Says: X. Kathleen McClean was married to Firefighter McClean for 21 years. The decision explains that she was a loving and committed wife; the parties lived together, maintained a home together, shared funds, held themselves out as husband and wife, and she remained by his side as he “fought and ultimately lost his long cancer battle.” And, let us not forget that the Pension Medical Board “unanimously” recommended that the application be granted.

The court rejected respondents’ argument that the presumption of validity of Kathleen McClean’s second marriage did not apply; “well-established New York law” provides “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. 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.”

But more important, the court explained that courts have “consistently held that, as a matter of public policy, respondents have an obligation to these brave men and women and their families.”

Kathleen McClean correctly argued that “for over 20 years she was, in all senses, Firefighter McClean’s wife.” Which leads us to the pièce de résistance of the entire decision—words which ought to hang from the rafters of every courtroom in New York, and perhaps every law school classroom in New York:

Literal meanings of words are not to be adhered to or suffered to ‘defeat the general purpose and manifest policy intended to be promoted.’ (emphasis added)

Justice Rothenberg’s explanation for granting Kathleen McClean’s petition to annul illustrates how hyper-literalism can be an impediment to the pursuit of “justice and equity”:

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 …. (emphasis added).

In McClean, we see a glaring example of the aggressive form over substance litigation approach. Why this unfortunate trend continues to rear its ugly head in our profession is a subject that is worth taking the time to address at Continuing Legal Education courses. For now, I am thrilled to report that this form of advocacy—which is not zealous, but rather, destructive—was properly squashed by the court in McClean to protect a litigant who is unequivocally deserving of justice.

With that in mind, I asked ChatGPT to answer the question “What is justice?” and I got the following answer:

Justice is a concept that refers to fairness and the just treatment of individuals or groups. It involves upholding ethical and moral principles, ensuring equal access to resources, and punishing those who violate laws and harm others. Justice can take many forms, including social justice, economic justice, and criminal justice. Ultimately, justice is about creating a society where everyone can live with dignity and security.

That is a wonderfully canned, anesthesia-inducing answer from the artificial robot that I’m told day after day is destined to render us all obsolete. I have a better answer than that provided by our bone-dry heir apparent: Justice is what the Supreme Court of the State of New York, County of Kings, did for Kathleen McClean. We will never forget.

"A Court Rightfully Protects Spouses of WTC Firefighters," by Alan R. Feigenbaum was published on April 14, 2023, in the New York Law Journal.

Reprinted with permission from the April 14, 2023, edition of the New York Law Journal © 2023 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.