Wing Jr v. New York City Fire Department Pension Fund et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------x
ROBERT C. WING JR.,
Plaintiff,
-against-
NEW YORK CITY FIRE DEPARTMENT PENSION
FUND; KIM MACINTYRE,
Defendants.
------------------------------------x
MEMORANDUM & ORDER
24-CV-5770 (EK)(RML)
ERIC KOMITEE, United States District Judge:
This case arises from plaintiff Robert Wing’s claim
that the New York City Fire Department Pension Fund is
improperly distributing part of his accidental disability
retirement to his ex-wife, Kim Macintyre, pursuant to a domestic
relations order.
The domestic-relations abstention doctrine applies
because Wing claims that the state-court judge in his divorce
case misinterpreted state law in holding that his accidental
disability retirement was marital property. 	Therefore, Wing’s
claims must be dismissed for lack of subject-matter
jurisdiction.
Background
The following facts are taken from the Amended
Complaint and assumed to be true. 	Bell Atl. Corp. v. Twombly,
Case 1:24-cv-05770-EK-RML Document 24 Filed 02/20/26 Page 1 of 8 PageID #:
<pageID>

2
550 U.S. 544, 570 (2007). 	The Court also takes judicial notice
of certain filings in the state-court divorce proceeding. 	Blue
Tree Hotels Inv. (Canada), Ltd. v. Starwood Hotels & Resorts
Worldwide, Inc., 369 F.3d 212, 217 (2d Cir. 2004); Thomas v.
Venditto, 925 F. Supp. 2d 352, 359 (E.D.N.Y. 2013).
Wing is a former New York City Fire Department
battalion chief and “member” of the Fire Department Pension
Fund, Subchapter II (the “Pension Fund”). 	He brings this action
against the Pension Fund and his ex-wife, Macintyre. 	As part of
Wing’s divorce settlement with Macintyre, they entered into a
domestic relations order (the “DRO”) in 2016, which included a
stipulation concerning their respective pensions. 	Am. Compl.
¶¶ 10-14. 	Around July-August 2020, Wing moved to vacate the DRO
in state court and also applied for accidental disability
retirement (“ADR”) benefits — a form of lifetime support to
public employees who cannot work due to a work-related accident.
Id. ¶¶ 17-18, Ex. G. 	He demanded that the Pension Fund not
distribute any ADR payments to Macintyre. 	Id. ¶ 18.
In March 2021, the Pension Fund awarded Wing ADR
benefits. 	Id. ¶ 17. Soon thereafter, the pension plan began
distributing portions of Wing’s pension and benefits to both him
and Macintyre. 	Id. ¶ 24. 	In response, Wing filed a motion
under Article 78 of the New York Civil Practice Law & Rules,
alleging the Pension Fund had acted arbitrarily and
Case 1:24-cv-05770-EK-RML Document 24 Filed 02/20/26 Page 2 of 8 PageID #:
<pageID>

3
capriciously. 	Because Wing failed to join his ex-wife — a
necessary party — the petition was denied. 	Wing v. N.Y.C. Fire
Pension Fund, No. 159667/2021 (N.Y. Sup. Ct. Mar. 2, 2022),
NYSCEF No. 28.
Wing also filed a post-judgment motion in the divorce
action, seeking a declaration that the DRO did not entitle
Macintyre to his ADR payments. 	That motion was denied. 	Am.
Compl. ¶¶ 25-26. 	He then appealed that decision, and the appeal
remained pending as of the date Wing filed the Amended
Complaint. 	Id. ¶ 65.
Wing brings this action under Section 1983, Rev. Stat.
§ 1979, 42 U.S.C. § 1983, claiming that the Pension Fund and his
ex-wife have violated his “freedom of contract” and due process
rights. 	The City moved to dismiss. 	The Court requested that
the parties submit supplemental letters regarding the domestic-
relations abstention doctrine. 	Docket Order dated December 19,
2025. 	The City now asserts that the doctrine applies; Wing
opposes its application on the basis that he is challenging
“NYCFPF’s independent administrative and payment decisions.”
ECF No. 23.
The Domestic-Relations Abstention Doctrine
The plaintiff bears the burden of establishing
subject-matter jurisdiction. 	Makarova v. United States, 201
F.3d 110, 113 (2d Cir. 2000). 	“A federal court presented with
Case 1:24-cv-05770-EK-RML Document 24 Filed 02/20/26 Page 3 of 8 PageID #:
<pageID>

4
matrimonial issues or issues ‘on the verge’ of being matrimonial
in nature should abstain from exercising jurisdiction so long as
there is no obstacle to their full and fair determination in
state courts.” 	Am. Airlines, Inc. v. Block, 905 F.2d 12, 14 (2d
Cir. 1990); Deem v. DiMella-Deem, 941 F.3d 618, 621-22 (2d Cir.
2019).1 	“In reviewing a Rule 12(b)(1) motion to dismiss, the
court ‘must accept as true all material factual allegations in
the complaint, but the court is not to draw inferences from the
complaint favorable to plaintiff.’” 	Tiraco v. N.Y. State Bd. of
Elections, 963 F. Supp. 2d 184, 190 (E.D.N.Y. 2013) (quoting
J.S. ex rel. N.S. v. Attica Cent. Schs., 386 F.3d 107, 110 (2d
Cir. 2004)).2
The Court Must Abstain
Each of Wing’s claims raise domestic relations issues.
Couched as due-process and freedom—of-contract claims, Wing asks
the Court to stop the Pension Fund from distributing ADR
payments to his ex-wife. 	See Am. Compl. ¶¶ 60-63. 	The relief
he is seeking would inevitably require the Court to interpret
the DRO, as Wing concedes. 	ECF No. 23, at 2. 	The City also
1 Unless otherwise noted, when quoting judicial decisions this order
accepts all alterations and omits all citations, footnotes, and internal
quotation marks.
2 Although the City originally moved to dismiss under Rule 12(b)(6), the
Court gave the parties notice and an opportunity to submit supplemental
briefing on the applicability of the domestic-relations abstention doctrine.
See Docket Order dated December 19, 2025. 	Accordingly, the Court reviews
this case under the standards for subject-matter jurisdiction, as the
domestic-relations abstention doctrine is jurisdictional. 	Am. Airlines, 905
F.2d at 14.
Case 1:24-cv-05770-EK-RML Document 24 Filed 02/20/26 Page 4 of 8 PageID #:
<pageID>

5
alerts the Court to a pending appeal in Wing’s divorce case that
concerns the exact same issue: whether the DRO entitles
Macintyre to “any portion of [Wing’s] ADR payments.” 	Def. Mem.
3-4, ECF No. 17.
The domestic-relations abstention doctrine precludes
federal district courts from considering claims that are
“matrimonial in nature” and as to which “there is no obstacle to
their full and fair determination in state courts.” 	Deem, 941
F.3d at 621–22. 	An action asking a federal court to interpret a
DRO or stipulation of settlement that is enforced in state court
is inherently “matrimonial in nature.” 	Genger v. Genger, 252 F.
Supp. 3d 362, 368 (S.D.N.Y. 2017) (enforcement of arbitration
award pursuant to divorce agreement); UBS Fin. Servs. Inc. v.
Mantovi, No. 17-CV-5921, 2018 WL 1747043, at *2 (E.D.N.Y. Apr.
11, 2018) (abstaining where interpleader-defendant asked Court
to “interpret the prior agreements and order” between her and
ex-spouse to determine distribution of retirement account);
Weiss v. Weiss, 375 F. Supp. 2d 10, 16 (D. Conn. 2005)
(abstaining from interpreting division of law firm assets that
were provided for in divorce agreement); Smith v. Pension Plan
of Bethlehem Steel Corp. & Subsidiary Cos., 715 F. Supp. 715,
718-19 (W.D. Pa. 1989) (applying domestic relations abstention
to pension-plan distributions dispute); Moore v. Moore, No. 86-
CV-2530, 1988 WL 163019, at *4 (D. Kan. May 10, 1988) (same).
Case 1:24-cv-05770-EK-RML Document 24 Filed 02/20/26 Page 5 of 8 PageID #:
<pageID>

6
And where, as here, a final decision is also pending on appeal
in state court, a federal court’s adjudication of the matter
would “intrude[] impermissibly upon state law matrimonial
jurisdiction.” 	Am. Airlines, 905 F.2d at 15.
Although Wing “frames his allegations in
constitutional terms, his requested relief as a practical matter
would have this Court review and overturn” decisions in his
Richmond County Supreme Court divorce proceeding. 	Evans v.
Adams, 714 F. Supp. 3d 119, 124 (E.D.N.Y. 2024). 	Therefore, the
Court cannot grant Wing his requested relief without “treading
upon the state court’s greater interest in resolving domestic
relations disputes.” 	Id.
Aside from his assertion that his state-court appeal
will “take years” and that in the interim, he continues to
experience rights violations, Wing points to no facts that
plausibly suggests there is any obstacle impeding a full, fair
determination of his ADR distributions in state court.
Richardson v. Richman, No. 25-CV-5155, 2025 WL 2962741, at *2
(E.D.N.Y. Oct. 21, 2025) (claims that the state court did not
“adequately address[] or resolve[]” the plaintiff’s claims were
insufficient to plead that an obstacle existed).
Wing’s ex-wife is a named defendant but has not
appeared in this action. 	“If the court determines any time that
it lacks subject-matter jurisdiction, the court must dismiss the
Case 1:24-cv-05770-EK-RML Document 24 Filed 02/20/26 Page 6 of 8 PageID #:
<pageID>

7
action” against all defendants. 	Fed. R. Civ. P. 12(h)(3).
Since the claims against Macintyre are identical to the claims
brought against the City, the claims against Macintyre are also
dismissed for lack of subject-matter jurisdiction under the
domestic-relations abstention doctrine.
Conclusion
For the foregoing reasons, the City’s motion to
dismiss is granted without prejudice, and the claims against
Macintyre are likewise dismissed. 	The Court will not allow Wing
to amend the complaint a second time. 	See Harty v. West Point
Realty, 28 F.4th 435, 445 (2d Cir. 2022) (“A dismissal for lack
of jurisdiction without leave to amend is not the same thing as
a dismissal with prejudice.”). 	Leave to amend may be denied as
futile, even absent subject-matter jurisdiction, when
“substantive” problem exists and “better pleading will not cure
it.” 	Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
Because the domestic-relations abstention doctrine precludes
this Court’s exercise of jurisdiction, any attempt to amend the
complaint would be futile. 	See Deem, 941 F.3d at 625
(affirming, on domestic-relations abstention grounds, district
court’s dismissal of pro se plaintiff’s complaint without leave
to amend).
Case 1:24-cv-05770-EK-RML Document 24 Filed 02/20/26 Page 7 of 8 PageID #:
<pageID>

8
The Clerk of the Court is directed to close this case,
mail a copy of this order to the plaintiff, and note the mailing
on the docket.
SO ORDERED.
/s/ Eric Komitee
ERIC KOMITEE
United States District Judge
Dated: 	February 20, 2026
Brooklyn, New York
Case 1:24-cv-05770-EK-RML Document 24 Filed 02/20/26 Page 8 of 8 PageID #:
<pageID>