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NY fire chief's 9/11 benefits suit dismissed by judge

Brooks claimed his request for 9/11-related illness benefits were denied, but the judge said his request was really a proposed compromise for a separate matter


By Greg Mason
Observer-Dispatch

UTICA, N.Y. — Premature.

That is how a state Supreme Court judge described a lawsuit filed by Utica fire Chief Russell Brooks against the City of Utica when he ruled to dismiss it without prejudice.

Brooks filed his lawsuit against the city and Mayor Robert Palmieri. In it, Brooks claimed the city rejected an application for sick leave benefits connected with his chronic lymphocytic leukemia, a condition he said was contracted as a result of his response to ground zero for 9/11 recovery operations.

Judge Patrick MacRae, however, ruled the application in question -- a Sept. 18 email from Brooks' attorneys to the city's legal counsel -- was not actually a formal benefits application, but rather was a proposed compromise to settle a separate, but related matter.

"As such, this Article 78 Petition is premature and must be dismissed," MacRae wrote in his written ruling dated Dec. 15. "The Court does not address the merits of the claims presented by the parties at this time, as they are not ripe for consideration."

The email in question entreated the city to consider granting Brooks benefits under General Municipal Law 92-d, which establishes sick leave benefits for responders affected by certified World Trade Center-related health conditions.

Attorneys argued the case in November in MacRae's court in Rome. Following the judge's decision, Brooks deferred comment to his attorney, Earl Redding, who said a decision has not been made as to where to go from here.

"I'm speechless," he said. "I don't believe there was ever any disagreement between the parties that there was an application for the 92-d benefits and a denial by the city. The city fully argued the merits, both in paper (through court filings) and at oral arguments, and there was no discussion regarding whether or not an actual denial had been made."

Application or compromise?

The ruling stems from the city's decision to deny an earlier application from Brooks for workers' compensation benefits under General Municipal Law 207-a for firefighters injured in the line of duty.

Brooks, 69, filed that application in January, but it was rejected by the city in May. At the same time, the city also decided to place Brooks on leave for reasons, city officials have said, related to his medical history.

The dispute was headed to arbitration. But prior to that hearing, Gov. Andrew Cuomo signed General Municipal Law 92-d into law on Sept. 11.

On Sept. 18, Brooks' attorneys emailed city attorneys a communication "for settlement purposes only," which was a proposal, according to MacRae's decision: "... the City acknowledge that Chief Brooks is entitled to (92-d) line of duty sick leave, retroactive May 12, 2017 and to continue to his mandatory retirement date; upon retirement he'll receive all benefits to which he is entitled (e.g. sick leave cash out); he'll withdraw his 207-a application and the City will withdraw its (Civil Service Law) 72 determination."

Civil Service Law 72, which outlines regulations for leave due to a disability, was invoked with Brooks' situation. In an email Sept. 21, the city responded, "We have reviewed your proposal," according to MacRae's decision.

The email from Brooks' attorney, according to MacRae's ruling, also said the communication was "protected by (Civil Practice Law and Rules) 4745."

"It's worth noting that the proposal was specifically put forth under the protections of (4547), which essentially protects such offers from being used as evidence of liability," MacRae wrote in his decision. "In this fashion, Petitioner sought to protect himself from introduction of the proposal in the context of his claim for (207-a) benefits, while taking advantage of the proposal as a basis for the present proceeding when Respondent rejected the proposal."

Moving forward

MacRae's ruling found that the purpose of the email was not a 92-d application, but a proposal of a compromise to resolve the 207-a benefits claim and the city's Civil Service Law determination.

With his ruling, the judge also lifted a stay on the arbitration hearing regarding Brooks' request for 207-a benefits.

Redding said he and his client will be prepared to move forward with an arbitration hearing and will look into whether or not to file a motion for the matter to be reargued or for the judge to reconsider his ruling. He said they may also file another application for 92-d benefits.

Not only does he believe that a 92-d application was submitted through the Sept. 18 email, but Redding said he also feels the dismissed lawsuit in itself was an application for 92-d benefits -- and the city's argument was a denial.

"The judge's decision is the judge's decision," he said. "We just have to analyze and move forward based upon that decision."

Armond Festine, the city's assistant corporation counsel, said the ruling was "legally correct."

Festine argued the matter on the city's behalf. The city's position has been that there is no medical evidence to support that Brooks' CLL diagnosis was caused by his time spent at ground zero.

Festine said city officials will inform arbitrators of MacRae's decision and that they are prepared. He said an arbitration hearing has not yet been scheduled.

"The city will go forward," he said. "We stand by everything that has happened ... and we assert what we've asserted."

Copyright 2017 Observer-Dispatch

McClatchy-Tribune News Service

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