TO SEARCH this database type in a key word or phrase in the box in the upper left and any material containing the word or phrase will be displayed for your review.

State of New York vs. COVID-19 - Governor Andrew M. Cuomo periodically updates New Yorkers on the state's progress during the ongoing COVID-19 pandemic. The latest reports of the number of new cases, the percentage of tests that were positive and many other relevant data points concerning COVID-19 are available at forward.ny.gov.

N.B. §22 of the New York State's General Construction Law, in pertinent part, provides that “Whenever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons.” NYPPL applies this protocol to individuals referred to in a decision self-identifying as LGBTQA+.

September 2, 2016

Determining eligibility for "prospective surviving spouse pension benefits"


Determining eligibility for "prospective surviving spouse pension benefits"
Tirado v Board of Trustees of N.Y. City Fire Dept. Pension Fund, Subchapter 2, 2016 NY Slip Op 05925, Appellate Division, Second Department

Judicial review of administrative determinations not made after a quasi-judicial hearing is limited to whether the action taken by the administrative agency was made in violation of lawful procedure, was affected by an error of law, or was arbitrary and capricious or an abuse of discretion.

In resolving this action, which did not involve the review of a ruling made after a quasi-judicial hearing but which required the consideration of a number of issues such as the vacating of a default judgment of divorce, the benefits due surviving minor children of a deceased member of the New York City Fire Department Pension System, and claims that the application for certain retirement benefits was barred by the statute of limitations and the doctrine of laches, Supreme Court annulled the Board of Trustees of the New York City Fire Department Pension Fund, Subchapter 2’s, [Fund] determination denying Sheneque Jackson Tirado’s [Tirado] surviving spouse pension benefits and directed that the Fund commence paying Tirado such pension benefits effective as of August 20, 2012, together with any interest due. 

The Appellate Division affirmed the Supreme Court’s ruling, holding that the Fund’s denial of Tirado’s application for prospective surviving spouse pension benefits was arbitrary and capricious and an abuse of discretion.

Tirado had been separated from her husband, Hector Tirado, Jr. [Hector], a New York City firefighter who died responding to the terrorist attacks on September 11, 2001. After Tirado applied for pension benefits as Hector’s surviving spouse she learned the Hector had obtained a default judgment of divorce against her on March 21, 2001. In April 2002 Tirado filed a petition seeking to vacate the default divorce judgment.*In April 2003, the Supervisor of Pension Payroll of the Fire Department notified her that, as the surviving minor children's guardian, that pension benefits would be paid to the five minor children through their 18th birthdays.

Ultimately the relevant parties entered into an agreement in a Surrogate's Court proceedings to settle the estate whereby Tirado agreed to give the minor children any pension benefits from the Fire Department she received as Hector's surviving spouse in the same manner as the benefits would be distributed if there were no surviving spouse and when the minor children reached an age that they would no longer be eligible to receive pension benefits, Tirado would retain for her own exclusive use and enjoyment any remaining pension benefits until her death. Surrogate's Court vacated the judgment of divorce and in support of the present petition, Tirado’s then-counsel averred that he “notified a representative of the Fund of the vacatur of the divorce judgment and that he believed that he informed the representative about the agreement to defer [Tirado’s] surviving spouse pension benefits.”

The Fund continued to make the retirement payments to the benefit of the minor children. In August and September 2012, Tirado’s counsel wrote three letters to representatives of the Fire Department, noting that the youngest child would attain the age of 18 on August 20, 2012 and none of the children was a full-time student, requesting that "thereafter, the Fund commence paying surviving spouse pension benefits" to Tirado.

The Deputy Commissioner for Administration of the Fire Department responded that in November 2001, the Fund had determined that there was "no surviving spouse and that the death benefit was therefore payable to the Hector's minor children." Noting that the Find had not participated in the proceeding leading to the “vacatur of the divorce,”** the Deputy Commissioner said that the death benefit was a mutually exclusive benefit paid to either a surviving spouse or to surviving minor children and that all pension benefits had been paid in full to the minor children and did not revert to Tirado.

Addressing the Fund’s contention that Tirado’s petition was barred by the statute of limitations and laches, the Appellate Division said that Supreme Court correctly held that Tirado’s petition was timely and consistent with New York City’s Administrative Code §13-347(c).*** 

The Appellate Division explained that Tirado had timely commenced her action within four months of the October 2, 2012 communication from the Fund and that this letter “was the first and only unambiguously final decision sent to [Tirado] regarding her claim for surviving spouse pension benefits.” The court pointed out that while Tirado had been notified in 2003 that pension benefits would commence being paid to the minor children, that notification did not advise her “of the Fund's current position that, once such payments to the children began, they could never revert back to [Tirado] even if she obtained vacatur of the default divorce judgment, nor did it address [Tirado's] claim at all.”

Addressing the Fund’s argument that Tirado’s application was barred by the doctrine of laches, the Appellate Division said that having notified the Fund of her claim to entitlement to surviving spouse pension benefits, and her agreement to defer payment in favor of the children until they reached majority, Tirado did not unreasonably delay in seeking to protect her interests. In addition, said the court, as Tirado sought only prospective pension benefits and not recovery of payments which had already been made to the children, the Fund failed to show any prejudice resulting from Tirado’s delay in seeking payments after she obtained vacatur of the default divorce judgment in 2005.

* The vacatur of the default divorce judgment made Tirado Hector’s surviving spouse as if the default divorce judgment had never been entered and the Fund was not a necessary party to the proceeding to vacate the default divorce judgment merely because it administers benefits which flow from Tirado's marital status.

** The Appellate Division observed that the Fund was not a necessary party to the proceeding to vacate the default divorce judgment merely because it administers benefits which flow from Tirado’s marital status and construing the effect of the order and decree vacating the default divorce judgment was a question of law for the court to resolve and did not require deference to the Fund's area of expertise.

*** Administrative Code §13-347(c) provides that pension benefits "shall" be granted to the decedent's surviving spouse for life, or, if there be no surviving spouse, to surviving minor children until they attain the age of 18, or the age of 23 if a student.

The decision is posted on the Internet at:


Public Personnel Law E-books

The Discipline Book - A concise guide to disciplinary actions involving public employees in New York State set out in a 700 page e-book. For more information click on https://booklocker.com/books/5215.html

A Reasonable Disciplinary Penalty Under the Circumstances - A 442-page e-book focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition and as an e-book. For more information click on http://booklocker.com/books/7401.html

The Layoff, Preferred List and Reinstatement Manual - A 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html

Disability Leave for fire, police and other public sector personnel - A 1098 page e-book focusing on disability benefits available to public officers and employees employed by New York State and its political subdivisions. For more information click on http://booklocker.com/books/3916.html