A Court Rightfully Protects Spouses of WTC Firefighters

New York Law Journal, April 14, 2023 ●

Alan R. Feigenbaum ●

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.

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