By Anthony M. Destefano
Newsday
NEW YORK — The family of a New York City firefighter who died in 1935 after fighting a blaze in Manhattan has filed court papers to force the FDNY to declare that his death occurred in the line of duty.
In a special Article 78 proceeding filed on Oct. 3 in state Supreme Court in Brooklyn, the grandson of the late Thomas F. O’Brien said he wasn’t seeking money but wanted to compel FDNY Commissioner Daniel Nigro to give his grandfather “the proper recognition that has been denied for too long.”
Art O’Brien, of New Jersey, said in court papers that the FDNY “inexplicably refuses to recognize Firefighter O’Brien’s sacrifice and place his name among those who have died in the line of duty.”
O’Brien was referring to the memorial wall at FDNY headquarters in Brooklyn, which lists 1,147 names of firefighters who have died in the line of duty since 1865.
The court petition names Nigro as a defendant in his official capacity.
Officials at the FDNY didn’t return a request for comment about the court action.
Thomas O’Brien died on Oct. 28, 1935, at the age of 48 after he returned to his Engine Company 3 following a fire a day earlier at a paint store in Manhattan, court papers explained. O’Brien complained to his supervisor of feeling faint and was told to go to bed in the firehouse, rather than seek medical help, the papers stated. O’Brien was found dead in his bed at the engine company the next morning, according to his grandson. At the time of his death, he was a resident of Richmond Hill, Queens.
As described in an August story in Newsday, O’Brien’s relatives sought the help of retired Nassau County Surrogate Edward W. McCarty III, who is of counsel at the Lake Success law firm of Vishnick McGovern Milizio LLP. McCarty conducted an investigation, which uncovered an autopsy report in which the city medical examiner in 1935 found that O’Brien suffered a skull fracture fighting the fire and died as a result.
The O’Brien family’s court action alleges that the FDNY action, in not declaring firefighter O’Brien’s death as being in the “line of duty” when recently asked to do so by the relatives, was an arbitrary and capricious action.
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