FDNY Coverup Suit Dismissed

A lawsuit accusing FDNY of covering up the cause of a fire that claimed the life of a firefighter in 2018, has been dismissed. Fire Marshal Scott P. Specht claimed his bosses ordered him to falsely attribute the cause of a fire on the set of a Bruce Willis movie to a boiler, and retaliated against him when he refused to go along.

The fire on March 22, 2018 claimed the life of firefighter Michael Davidson, 37. Specht was the lead fire investigator of the five alarm fire in a Harlem brownstone being used as the set for the movie “Motherless Brooklyn.”  He claims his bosses “wanted to place the blame on the boiler because of the substantial revenues that the movie production business generates for New York City and the positive publicity it brings to the City’s senior officials and fire officers, including themselves.”

Specht was reassigned from the case and ended up resigning. He sued alleging a violation of his First Amendment rights, violation of the state’s whistleblower protection law, and intentional infliction of emotion distress (IIED). Here is earlier coverage of the case, which was originally filed in state court. The city had the case removed to federal court because of the First Amendment claim.

In dismissing all three of Specht’s claims, Judge Eric N. Vitaliano ruled that he “failed to make out a legally cognizable claim.” As for his First Amendment claim, Judge Vitaliano ruled that the speech in question was not a matter of public concern, but rather was in the nature of a personal grievance about the way that Specht had been treated. He also found that the speech was not made as a private citizen. Hence it was not protectable under the First Amendment.

The whistleblower protection claim was dismissed because Specht failed to exhaust all of his administrative remedies, namely he did not file a grievance under the collective bargaining agreement. The IIED claim was dismissed because it failed to conduct that was so outrageous as to be “utterly intolerable in a civilized community.”

The Daily News quoted Specht’s lawyer Nathaniel Smith as saying “We think the judge erred in several respects,” and vowing to appeal.

Here is a copy of the decision:

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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