NY Law Leaves 9/11 Survivors Competing For Benefits

New York Lawyer
October 21, 2004

By Mark Fass
New York Law Journal

The pending appeal of a Workers' Compensation Board ruling pits the children of victims of the Sept. 11, 2001, terrorist attacks against the victims' fiancees and domestic partners.

At issue is §4 of New York's Workers' Compensation Law, a provision that affords the domestic partners of the Sept. 11 victims the same rights as surviving spouses.

The law places domestic partners in direct competition with the victims' children for Workers' Compensation benefits, according to the appellant's brief submitted by Robert Grey to the Appellate Division, Third Department in August. Reply papers from the New York Attorney General's Office are due Nov. 8.

In passing the law, state legislators believed it would only be relevant for gay partnerships, said Mr. Grey of Grey & Grey in Farmingdale.

"They had no clue that heterosexual people that had children by one marriage and lived with a boyfriend or girlfriend would qualify under this statute," he said. Therefore, the law failed to address issues involving remarriage and children, and domestic partners' benefits came into direct competition with surviving children's benefits, Mr. Grey said.

Mr. Grey represents the daughter of Paul Innella, a systems analyst who was among the 658 Cantor Fitzgerald employees killed at the World Trade Center. In addition to his daughter, Victoria, his survivors included his ex-wife, Victoria's mother; and his fiancee, Lucy Aita.

On July 18, 2002, the Workers' Compensation Board issued an administrative decision awarding Victoria the maximum death benefits, a weekly award of $400 plus a retroactive payment of $17,360.

Five days later, Ms. Aita filed an appeal of the decision that resulted in reducing Victoria's weekly award from $400 to $180. The same ruling awarded Ms. Aita $220 per week.

The appellant's brief argues, among other things, that the provision for domestic partners denies equal protection of the law to the children of Sept. 11 victims.

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