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Lawyers demand judge cut parts of ageism suit against FDNY commissioner

The motion wants mentions of an alleged affair and comments about retirements, terminations of individuals not in the suit dropped from the case


Bureau of Operations Assistant Chief Richard Blatus seen where firefighters battle massive salvage yard 4 alarm fire in the Bronx Hunts Point section.

Lev Radin/Pacific Press via ZUMA Wire/TNS

By Thomas Tracy
New York Daily News

NEW YORK — The city is biting back against FDNY chiefs suing Fire Commissioner Laura Kavanagh, arguing that allegations of her poor decision-making and discussions about department brass who are not part of the wide-ranging ageism suit are “scandalous and prejudicial” and have nothing to do with the case.

In a motion recently filed in Brooklyn Supreme Court, city lawyers demand a judge strike several pieces of the 88-page lawsuit that “do not even remotely go to any of the material elements of (their) claims.”

“Plaintiffs [the chiefs] have now filed multiple versions of the complaint, each with more hyperbolic allegations than the last,” the city’s Law Department said. “The vast majority [of the issues in the latest version of the complaint] have nothing to do with plaintiffs’ fanciful age discrimination and retaliation claims.”

The chiefs are expected to respond to the city’s motion by mid-September. A judge is expected to look over the arguments in October.

Jim Walden, the attorney defending the chiefs, scoffed at the city’s filing. “The city cries crocodile tears,” Walden told the Daily News.

Among the points the city wants erased from the compaint are a reference to an “insinuated affair” between Kavanagh and a deputy commissioner, JonPaul Augier, who is a defendant in the chiefs’ suit. The chiefs’ suit mentions five-year-old rumors of a relationship between Kavanagh and Augier, without offering any evidence.

The city also wants dropped from the suit mentions of retirements and terminations of FDNY personnel who are not plaintiffs in the suit, and claims Kavanagh made “unethical or ill-advised decisions at the FDNY.”

Assistant Fire Chiefs Michael Gala, 62, Joseph Jardin, 61, and Michael Massucci, 59, Frank Leeb, 54, retired EMS Chief James Booth, 59, and EMS Computer Aided Dispatch Programming Manager and Deputy Director Carla Murphy, 56, say they were targeted by Kavanagh and her team “because they were at or near the age of 60″ according to their lawsuit in Brooklyn Supreme Court.

At 40, Kavanagh, the city’s first woman fire commissioner, is also one of the city’s youngest commissioners.

The plaintiffs claim they were harassed, maligned and ultimately demoted because they were too old in Kavanagh’s eyes.

The ageism lawsuit outlines several instances where the chiefs were allegedly harassed, transferred or belittled because they spoke up to Kavanagh.

It also makes claims seemingly unrelated to the ageism issue.

Among them are claims that Kavanagh and her team’s decisions delayed an after-action report regarding the murder of EMT Lt. Alison Russo, and that she browbeat into retirement FDNY Chief Richard Blatus, who oversaw the department’s firefighting boats — including one involved in an East River crash last year that killed a firefighter visiting from Belgium.

Blatus is not a plaintiff in the suit and many of the allegations made about departmental decisions “are entirely unrelated to age discrimination or retaliation,” the city’s legal motion states.

Since the initial lawsuit was filed, the chiefs and Walden have “gone on a press tour to discuss this case and attempt to humiliate the commissioner,” city attorneys said in the papers filed July 31.

“Their allegations and statements to media organizations demonstrate that the plaintiffs are attempting to litigate this case in the media and court of public opinion in an effort to scandalize and prejudice defendants, inflame the public, and pressure the Mayor to intervene and replace defendant Kavanagh with a commissioner of plaintiffs’ own choosing,” city attorneys said.

Walden said the city’s desire to cut away sections of the lawsuit won’t dilute its message.

“The Commissioner targeted these exceptional FDNY heroes exactly because they were pushing back on some of her dangerous and ill-conceived policies,” he said in a statement. “Bluntly, she wanted younger ‘yes men and women.’ Only now she must realize they were right all along — and she can’t even find replacements for them!

“The city wants to strike these true allegations because they don’t want a jury to know the truth,” Walden said. “I predict the city’s motion will go up in flames.”

The lawsuit against Kavanagh was filed in March, about a month after she demoted Gala, Jardin and Assistant Chief Fred Schaaf to deputy chief.

Their demotions sparked a mass protest by FDNY chiefs who criticized Kavanagh and asked to be demoted in rank and moved out of department headquarters.

So far, Kavanagh hasn’t signed off on any of the demotion requests, FDNY officials said.

Asked about the city’s request to remove claims from the chiefs’ lawsuit, a Fire Department spokesperson said the language in the court filing is “a pretty strong comment and speaks for itself.”

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