Matter of Prior v Board of Trustees of City of NY Fire Dept. Pension Fund
Annotate this CaseDecided on November 23, 2004
Supreme Court, Kings County
Application of Gerard Prior and Marian Prior, Petitioners For a Judgment pursuant to Article 78 of the Civil Practice Law and Rules and other relief,
against
Board of Trustees of the City of New York Fire Department Pension Fund, the City of New York Law Department and Doreen Noone, Respondents
7710/04
Laura Jacobson, J.
Petitioners commenced this Article 78 proceeding seeking to annul the determination of the respondent Board of Trustees of the New York City Fire Department Pension Fund (hereinafter Pension Fund) which awarded benefits to respondent Doreen Noone as a domestic partner of deceased firefighter Kevin Prior. Petitioners are the parents of Kevin Prior who lost his life in the line of duty at the World Trade Center on September 11, 2001. [*2]
Kevin Prior became a firefighter on July 11, 1995. Before he joined the Fire Department, Mr. Prior was a member of the New York City Police Department, having joined on February 28, 1994. When Mr. Prior joined the New York City Fire Department, he transferred his service credits from the Police Department to the Fire Department Pension Fund. Kevin Prior named his father, Petitioner Gerald Prior as the principal beneficiary, and his mother, Petitioner Marion Prior as the alternate beneficiary of his pension benefits and life insurance fund benefits in the event of his death. Sadly, Kevin Prior was one of the brave heroes who lost his life on September 11, 2001 at the World Trade Center.
On October 18, 2001, petitioners applied for a line of duty pension pursuant to the Administrative Code of the City of New York §13-347[FN1]. On October 6, 2003, respondent Doreen Noone applied for benefits under the General Municipal Law §208-f to which she alleges she is entitled as the unregistered domestic partner of Kevin Prior. In support of her application, respondent Noone submitted documentation which, included a letter from the Crescent Beach Club addressed to both her and Kevin Prior at her address, and a contract confirming that they had booked the Club for their wedding on July 12, 2002; evidence of Discover credit cards with the same account number in each of their names; evidence that respondent Noone was added to Kevin Prior's MBNA's credit card account in early September 2001; evidence that a repair of respondent Noone's Jeep was paid for by Kevin Prior's credit card on or about January 5, 2001. Respondent Noone also submitted copies of a check stub for check 267 dated December 5, 2000 and a check stub for check 268 dated January 6, 2002 as evidence of the inactivity of her checking account because she alleged that her bills were paid by Kevin Prior. In addition, respondent submitted copies of two pieces of mail, one stamped October 12, 2001, and addressed to both respondent Noone and Kevin Prior at the address of petitioners' home which was also Kevin Prior's address. [FN2]The Pension Fund made a determination on or about the end of October 2003 that respondent Doreen Noone was the domestic partner of firefighter Kevin Prior. Petitioners' former attorney was notified of this determination on November 10, 2003.
Petitioners allege that the determination of the respondent Pension Fund that Doreen Noone was the domestic partner of Kevin Prior was arbitrary and capricious and was not supported by substantial evidence. Petitioners claim that although their son Kevin Prior and respondent Doreen Noone became engaged to marry in May 2001, and had set a wedding date for July 2002, their relationship did not meet the requirements to allow them to be considered domestic partners. Petitioners assert that respondent Doreen Noone never informed them that she was applying for the Special Accidental Death Benefit designated for domestic partners. Further, petitioners state that although respondent Noone and their son Kevin Prior dated on and off for a period beginning in 1997, they were not interdependent since they never lived together, never owned personal or real property together, never combined their finances nor did they [*3]exclusively rely upon each other for housing or money.
Respondent Pension Fund claims that petitioners' assertion that they were entitled to notice of the Pension Fund's determination because they had a property interest in the special accidental death benefit is without merit since they were only entitled to this benefit if there was a determination that the deceased had no domestic partner. The Pension Fund further contends that the order of entitlement is statutorily determined and it had no discretion to determine the beneficiary or the order of entitlement. Respondent Doreen Noone claims that the determination of the Pension Fund was not arbitrary and capricious and was supported by credible evidence. Respondent Noone points to the length of her relationship with the decedent Kevin Prior being a period of approximately five years, their intent to marry in July 2002, shared budgeting as evidenced by the fact that the couple shared two credit cards and the financial dependence of respondent Noone on Kevin Prior who paid some of her bills. Respondent Noone also asserts that petitioners did not have a property interest in the benefits administered by the Pension Fund but were only contingent beneficiaries. In addition, respondent Doreen Noone contends that petitioners have not met their burden nor made a showing with compelling evidence that Doren Noone was not the domestic partner of Kevin Prior.
General Municipal Law §208-f, provides, inter alia, for a special accidental death benefit payable to the surviving spouse or children of a firefighter who dies in the line of duty. Pursuant to the Administrative Code of the City of New York §13-347, dependent parents of the deceased firefighters are eligible for payment of an accidental death pension if there is no surviving spouse or children of the deceased. Chapter 468, Part A, section 2 of the Laws of 2002, effective September 10, 2001, provides for the payment of a GML §208-f pension to the parents of firefighters who died at the World Trade Center leaving dependent parents as their nearest relatives. The foregoing section was amended in 2003 to provide that surviving dependent parents and domestic partners of firefighters who died at the World Trade Center would be entitled to share in the firefighters pension as follows:
a) Pursuant to the Administrative Code § 13-347, the dependent parents would be entitled to their deceased child's pension.
b) Pursuant to the GML § 208-f, the domestic partner would be entitled to a pension equal to 100% of the firefighter's salary minus the amount paid to the parents pursuant to the Administrative Code § 13-347 as described in section (a). The domestic partner is also eligible to receive the Administrative Code § 13-347 pension when the dependent parents cease to be eligible.
Section (1) (a) of Chapter 468 of the Laws of 2002 made the provisions of GML § 208-f applicable to the registered and unregistered domestic partners of a named list of firefighters, including Kevin Prior, who died in the course of their employment at the World Trade Center on September 11, 2001. Section (1)(b) defines a "domestic partner" as follows:
( I ) was dependent upon the firefighter for support by either unilateral dependence [*4]
or mutual interdependence, as evidenced by a nexus of factors including, but
not limited to, children in common, common householding, shared budgeting
and the length or the personal relationship with the firefighter; or
( ii) was registered as a domestic partner of the firefighter....
This section goes on to further state that any court of any authority is not divested of the authority to adjudicate a person a domestic partner on the basis of criteria not specified in this section.
The relevant issues in this proceeding are whether petitioners have a property interest in the pension benefit and are able to maintain this proceeding and whether pursuant to CPLR § 7803 (3) the determination of the pension board was arbitrary and capricious.
The intended beneficiaries of Chapter 468, Part A, section 2 of the Laws of 2002 are both dependent parents and domestic partners. As dependent parents, petitioners now receive an accidental death pension under the Administrative Code of the City of New York §13-347. Petitioners would be eligible to also receive pension benefits pursuant to GML §208-f if there were no domestic partner designated. It is undisputed that under the circumstances of this case petitioners are contingent beneficiaries and their interest does not become vested in the event that there is a domestic partner. However, petitioners would have a present interest if there were no designated domestic partner. Courts have held that contingent beneficiaries do have standing to sue (see Devlin v. U.S. 352 F3d 525, Kamens v. Utica Mutual Ins. Co. 6AD3d 1237). The fact that an interest has not vested does not diminish the right to assert a challenge based on the property interest. Therefore, in the instant matter petitioners possess a sufficient property interest to maintain this proceeding.
There is no indication that a hearing preceded or was required in the Pension Fund's determination that respondent Noone is the domestic partner of Kevin Prior. Therefore, the applicable standard of review is whether the Pension Fund's actions were arbitrary and capricious. This standard requires that the determination must have a rational basis (see Pell v. Board of Education of Union Free School 34 NY2d 222 (1974). In the instant matter, the Pension Fund considered evidence submitted by respondent Noone which was interpreted to meet the criteria specified in the statute. The opposing documentation submitted by petitioners was not considered by the Pension Fund and in some instances contradicts and sheds a different light on the information used by the Pension Fund to reach the determination that respondent Noone was the domestic partner of Kevin Noone. There is no question that the Pension Fund's determination had a direct impact on petitioners and their interest has been adversely affected although they have not been afforded any right to be heard on the issue. Although the statute clearly gives the court the right to also determine the status of domestic partnership, the process has already been set into motion by the administrative body.
Therefore, in light of the due process considerations and the new information presented in this proceeding ( see Luisi v Safir, 262 AD2d 47 ) this matter is remanded back to the Pension [*5]Fund for consideration of the of evidence submitted by both petitioners and respondent Noone, and for each party to submit any additional information and documents on the issue of eligibility pursuant to the statute.
This constitutes the decision and order of this court
ENTER:
LAURA JACOBSON, JSC
Footnotes
Footnote 1:Under this section, the benefit payable is 50% of the firefighter's salary during the life of the dependent parents.
Footnote 2:Petitioners strongly contest the claim that Respondent Noone ever resided in their home.
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