Trooper's widow from W. Nyack wins 5-year pension fight
Jonathan Bandler
jbandler@lohud.com
A West Nyack widow who was denied her husband's disability pension because the state police investigator died seven minutes before the application was filed will get the benefit, thanks to special legislation passed by the state.
Stephanie O'Brien's five-year quest ended last month, when Gov. Andrew Cuomo signed a bill authorizing payment of the pension, which could amount to more than $1.5 million.
"We were really righting a wrong," said state Sen. David Carlucci, D-New City, who co-sponsored the bill in the spring after a panel of judges upheld the state Comptroller's Office denial of the pension.
"This was such unique circumstance… (It was) so tragic in the way it happened that we wanted to make sure the maximum benefit allowable was paid."
Richard O'Brien's retirement was not the product of years of financial planning, but of a frantic few hours filling out forms as he lay dying in a hospital Dec. 7, 2009. O'Brien had fallen off a ladder while fixing his mother's roof in Orange County. The couple had been married for just a few months and Stephanie was pregnant.
His colleagues rushed to complete the disability retirement application for her. They checked off the option that would pay a smaller percentage but continue the pension following his death.
Several attempts to send the paperwork failed because of faulty fax machines at the hospital. A supervisor in Albany finally signed off on the paperwork and faxed it to the retirement system, where it was received at 6:31 p.m.
O'Brien had died at 6:24 pm. The state Comptroller's Office denied the application because O'Brien was technically no longer a member of the state Police and Fire Retirement System by the time it arrived at their office.
Alan Sash, Stephanie O'Brien's lawyer, said the comptroller's own website urges terminally ill applicants to file for the option – and that's exactly what the investigator's colleagues did.
"It's kind of silly to deny someone something they've worked hard for over an administrative or bureaucratic (issue)," Sash said. "Most people would think there was an injustice here."
Stephanie O'Brien appealed, hoping for more than the $342,000 one-time death benefit she was offered.
In April, in a 3-1 ruling, the Appellate Division of state Supreme Court in Albany upheld the denial. Judge John Egan Jr. dissented.
"It is undisputed that decedent was alive throughout the numerous, repeated attempts to transmit the necessary paperwork," Egan wrote, adding that "it is readily apparent that petitioner and those assisting her – recognizing the dire nature of decedent's injuries – endeavored to promptly and diligently submit the underlying application in a timely fashion."
Carlucci and his fellow senators agreed, finding that while the Comptroller's Office and the court had appropriately followed the letter of the law, there was something they could do to make sure O'Brien's widow and young daughter didn't lose out because of bad technology. They approved a bill awarding an ordinary disability pension that could pay about $40,000 a year – or more than $1.6 million if Stephanie O'Brien, now 37, lives at least another 40 years.
O'Brien spent 12 years with the state police and, at the time of his death, was a narcotics investigator. He was also a captain in the National Guard and served two tours of duty in Iraq and Afghanistan.
"A lot of times we talk about standing up for our veterans," Carlucci said. "This wasn't just talking the talk but also walking the walk."
Twitter: @jonbandler