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No. CTQ-2017-00001 To be argued by: ANDREW W. AMEND 20 minutes requested
State of New York Court of Appeals
IN RE: WORLD TRADE CENTER LOWER MANHATTAN DISASTER SITE LITIGATION
STANISLAW FALTYNOWICZ, et al.,
Appellants,
STATE OF NEW YORK,
Intervenor-Appellant,
v.
BATTERY PARK CITY AUTHORITY, et al.,
Respondents.
(caption continues on inside front cover)
On the Certified Questions from the United States Court of Appeals for the Second Circuit in Docket No. 15-2181 (L)
BRIEF FOR APPELLANT THE STATE OF NEW YORK
BARBARA D. UNDERWOOD Solicitor General STEVEN C. WU Deputy Solicitor General ANDREW W. AMEND Senior Assistant Solicitor General of Counsel
ERIC T. SCHNEIDERMAN Attorney General State of New York Attorney for the State of New York 120 Broadway New York, NY 10271 (212) 416-8022 (212) 416-8962 (facsimile) Dated: June 16, 2017
(caption continued from front cover)
SANTIAGO ALVEAR, Appellant,
STATE OF NEW YORK,
Intervenor-Appellant,
v.
BATTERY PARK CITY AUTHORITY,
Respondent.
PETER CURLEY, MARY ANN CURLEY,
Appellants,
STATE OF NEW YORK,
Intervenor-Appellant,
v.
BATTERY PARK CITY AUTHORITY,
Respondent.
i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ...............................................................
PRELIMINARY STATEMENT ........................................................ 1
ISSUES PRESENTED ..................................................................... 4
STATEMENT OF THE CASE ......................................................... 5
A. Public Benefit Corporations ............................................ 5
B. Battery Park City Authority (BPCA) .............................. 7
1. BPCA’s organization and purposes .......................... 7
2. BPCA’s operations and finances .............................. 9
C. Plaintiffs’ Claims Against BPCA ................................... 10
1. Plaintiffs’ injuries from their participation in post-9/11 cleanup .................................................... 10
2. Initial timeliness rules for plaintiffs’ claims .......... 14
D. The State Legislature Enacts Jimmy Nolan’s Law to Allow Claims Against Public Corporations to Proceed ........................................................................... 16
E. Procedural History ......................................................... 18
1. The district court holds that Jimmy Nolan’s Law violates the New York Constitution ............... 18
2. The Second Circuit certifies two questions to this court ................................................................. 21
STATEMENT OF JURISDICTION ............................................... 23
ii
Page
ARGUMENT .................................................................................. 24
POINT I
A NEW YORK PUBLIC BENEFIT CORPORATION CANNOT ASSERT A STATE DUE PROCESS CHALLENGE TO A LAW THAT DEFINES ITS POWERS AND RESPONSIBILITIES .............................. 24
A. The Legislature’s Plenary Authority over Public Corporations Precludes Them from Challenging the Constitutionality of Legislation Defining Their Duties and Powers. ........................................................ 25
B. No Particularized Inquiry Is Needed to Determine Whether a Specific Public Corporation Is a Creature of the Legislature Subject to Its Plenary Authority. ....................................................................... 32
1. The “particularized inquiry” test does not apply where, as here, a public corporation seeks to assert a due process right against the Legislature itself. .................................................... 32
2. In any event, BPCA shares the essential features of other public entities that are indisputably precluded from challenging state laws on state constitutional grounds. .................... 35
3. The district court misread the governing case law in concluding otherwise. .................................. 39
C. No Exception Applies That Would Permit BPCA to Assert Due Process Rights Against the State. .............. 43
1. Jimmy Nolan’s Law does not deprive BPCA of a “specific fund of money” in which it has a proprietary interest. ............................................... 43
iii
Page
2. No other exception allows BPCA to bring the present constitutional challenge. ........................... 47
POINT II
A CLAIM-REVIVAL STATUTE SATISFIES NEW YORK’S DUE PROCESS CLAUSE IF IT HAS A REASONABLE JUSTIFICATION, AS JIMMY NOLAN’S LAW DOES ..................................................... 49
A. A “Reasonableness” Standard Applies to the Revival of Claims Against Public Corporations. ........... 52
B. Jimmy Nolan’s Law Was a Reasonable Response to a Situation Calling for a Remedy. ................................. 57
C. Jimmy Nolan’s Law Also Remedied a Serious Injustice to Injured Workers in Exceptional Circumstances. ............................................................... 62
D. There Are No Legitimate Grounds for Invalidating Jimmy Nolan’s Law on State Due Process Grounds. ......................................................................... 64
CONCLUSION ............................................................................... 72
ADDENDUM Bill Jacket for ch. 440 (2009)
iv
TABLE OF AUTHORITIES Cases Page(s) Adkins v. City of New York,
43 N.Y.2d 346 (1977) ................................................................. 61
Bernardine v. City of New York, 294 N.Y. 361 (1945) ................................................................... 26
Black Riv. Regulating Dist. v. Adirondack League Club, 282 A.D. 161 (4th Dep’t 1953) ................................................... 48
Black Riv. Regulating Dist. v. Adirondack League Club, 307 N.Y. 475 (1954) ........................................................... passim
Board of Education of Central School District No. 1 v. Allen, 20 N.Y.2d 109 (1967) ................................................................. 48
Bordeleau v. State of New York, 18 N.Y.3d 305 (2011) ................................................................. 30
Brothers v. Florence, 95 N.Y.2d 290 (2000) ........................................................... 49, 56
Brown v. Board of Trustees of Town of Hamptonburg School Dist. No. 4, 303 N.Y. 484 (1952) ................................................................... 31
Capital Dist. Regional Off-Track Betting Corp. v. Levitt, 65 A.D.2d 842 (3d Dep’t 1978) ............................................. 28, 46
Chase Sec. Corp. v. Donaldson, 325 U.S. 304 (1945) .............................................................. 18, 49
City of Covington v. Kentucky, 173 U.S. 231 (1899) .................................................................... 30
City of New York v. State of New York, 86 N.Y.2d 286 (1995) ......................................................... passim
v
Page(s)
City of Rye v. Metropolitan Transp. Auth., 24 N.Y.2d 627 (1969) ................................................................. 34
City of Trenton v. New Jersey, 262 U.S. 182 (1923) .............................................................. 26, 27
Clark-Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 N.Y.2d 382 (1987) ....................................................... 4, 33, 37
Collins v. Manhattan & Bronx Surface Tr. Operating Auth., 62 N.Y.2d 361 (1984) ................................................................. 37
County of Albany v. Hooker, 204 N.Y. 1 (1912) ....................................................................... 44
County of Rensselaer v. Regan, 80 N.Y.2d 988 (1992) ........................................................... 43, 45
Gallewski v. H. Hentz & Co., 301 N.Y. 164 (1950) ........................................................... passim
Goffredo v. City of New York, 33 A.D.3d 346 (1st Dep’t 2006) .................................................. 70
Hotel Dorset Co. v. Trust for Cultural Resources of City of N.Y., 46 N.Y.2d 358 (1978) ........................................................... 58, 69
Hymowitz v. Eli Lilly & Co., 73 N.Y.2d 487 (1989) ............................................... 50, 51, 58, 69
In re Agent Orange Prod. Liab. Litig., 597 F. Supp. 740 (E.D.N.Y. 1984) ....................................... 62, 68
In re World Trade Ctr. Lower Manhattan Disaster Site Litig., 44 F. Supp. 3d 409 (S.D.N.Y. 2014) ......................... 11, 12, 13, 60
vi
Page(s)
In re World Trade Ctr. Lower Manhattan Disaster Site Litig., 846 F.3d 58 (2d Cir. 2017) ................................................. passim
Jackson v. State of New York, 261 N.Y. 134 (1933) ............................................................. 52, 54
John Grace & Co. v. State Univ. Constr. Fund, 44 N.Y.2d 84 (1978) ..................................................... 5, 6, 30, 33
Lombardi v. Whitman, 485 F.3d 73 (2d Cir. 2007) ......................................................... 59
Matter of Board of Educ. of Union Free School Dist. No. 1 of Towns of Bethlehem, Coeymans & New Scotland v. Wilson, 303 N.Y. 107 (1951) ................................................................... 48
Matter of Chrysler Props., Inc. v. Morris, 23 N.Y.2d 515 (1969) ................................................................. 56
Matter of County of Cayuga v. McHugh, 4 N.Y.2d 609 (1958) ....................................................... 26, 27, 46
Matter of County of Chemung v. Shah, 28 N.Y.3d 244 (2016) ................................................................. 27
Matter of Felder v. City of New York, 53 A.D.3d 401 (1st Dep’t 2008) .................................................. 70
Matter of Goldstein v. New York State Urban Dev. Corp., 13 N.Y.3d 511 (2009) ................................................................. 36
Matter of Hodes v. Axelrod, 70 N.Y.2d 364 (1987) ................................................................. 57
Matter of Jeter v. Ellenville Cent. School Dist., 41 N.Y.2d 283 (1977) ........................................................... 27, 46
vii
Page(s)
Matter of Levy v. City Commn. on Human Rights, 85 N.Y.2d 750 (1985) ................................................................. 30
Matter of McCann v. Walsh Construction Co., 282 A.D. 444 (3d Dep’t 1953) ............................................. passim
Matter of New York County DES Litig., 89 N.Y.2d 506 (1997) ................................................................. 65
Matter of Ruffino v. Rosen & Sons, 142 A.D.2d 177 (3d Dep’t 1988) ................................................. 24
Matter of Ruffino v. Rosen & Sons, 74 N.Y.2d 861 (1989) ........................................................... 27, 46
Negron v. City of New York, 163 A.D.2d 198 (1st Dep’t 1990) ................................................ 54
Patterson v. Carey, 41 N.Y.2d 714 (1977) ............................................... 39, 40, 42, 43
People v. Hobson, 39 N.Y.2d 479 (1976) ................................................................. 40
People v. Tremaine, 252 N.Y. 27 (1929) ..................................................................... 44
Perez v. Battery Park City Auth., 100 A.D.3d 460 (1st Dep’t 2012) ................................................ 15
Purcell v. Regan, 126 A.D.2d 849 (3d Dep’t 1987) ................................................. 45
Robinson v. Robins Dry Dock & Repair Co., 238 N.Y. 271 (1924) ......................................................... 5, 49, 50
Ruotolo v. State of New York, 83 N.Y.2d 248 (1994) ......................................................... passim
viii
Page(s)
Santangelo v. State of New York, 193 A.D.2d 25 (2d Dep’t 1993) ................................................... 54
Schiavone v. City of New York, 92 N.Y.2d 308 (1998) ................................................................. 53
Schulz v. State of New York, 84 N.Y.2d 231 (1994) ............................................................... 6, 7
Teresta v. City of New York, 304 N.Y. 440 (1952) ................................................................... 60
Turner v. N.Y. City Transit Auth., 257 A.D.2d 421 (1st Dep’t 1999) ................................................ 53
Village of Herkimer v. Axelrod, 58 N.Y.2d 1069 (1983) ............................................................... 27
Wein v. State, 39 N.Y.2d 136 (1976) ................................................................... 7
Wrought Iron Bridge Co. of Canton, Stark County, Ohio v. Town of Attica, 119 N.Y. 204 (1890) ................................................................... 53
New York Constitution
N.Y. Const. art VII, § 7 .................................................................................. 44 art. VII § 8 .................................................................................... 7 art. IX, §§ 1–3 ............................................................................. 38 art. X, § 5 ...................................................................................... 6 art. XVIII, § 1 ....................................................................... 29, 36 art XVIII, § 10 ............................................................................ 36
ix
Laws Page(s)
Ch. 440, 2009 N.Y. Laws 7122 ....................................................... 16
C.P.L.R. 214 .............................................................................................. 14 214-c ................................................................................... passim
General Construction Law § 66 ............................................. 5, 6, 44
General Municipal Law § 50-e .................................................................................. passim § 50-i ......................................................................... 1-2, 16-17, 52 § 205-e ........................................................................................ 53
General Obligations Law § 15-108 ................................................ 47
Public Authorities Law § 153-b (1961) ....................................................................... 42, 43 § 1971 ................................................................................. passim §§ 1973–1974-d .......................................................................... 29 § 1973 ......................................................................... 8, 29, 36, 44 § 1974 ....................................................................................... 8, 9 § 1975 ..................................................................................... 9, 45 § 1979 ........................................................................................... 9 § 1981 ................................................................................. passim § 1984 ................................................................................... 14, 30 § 2622 ......................................................................................... 31
Air Transportation Safety and System Stabilization Act, Pub. L. 107-42, 115 Stat. 230 (2011) ................................... 12, 15
Miscellaneous Authorities
Battery Park City Auth., Annual Report (Jan. 31, 2011), http://bpca.ny.gov/wp-content/uploads/2015/04/PAL-Section-2800-Annual-Report-FY-2010.pdf ................................................................... 10
x
Page(s) Battery Park City Auth. (cont’d)
Financial Statements: Years Ended October 31, 2016 and 2015 (Jan. 31, 2017), bpca.ny.gov/wp-content/uploads/ 2015/03/BPCA-Financials-10-31-2016.pdf 10, 42
Official Statement, $362,785,000 BPCA Senior Revenue Bonds (Oct. 17, 2013), bpca.ny.gov/wp-content/uploads/2015/04/2013-Bond-Offering-Series-A.pdf ...... 42
Official Statement, $87,235,000 BPCA Senior Revenue Bonds 41 (Dec. 15, 2009), bpca.ny.gov/wp-content/uploads/2015/04/2009-Bond-Offering-Series-A-and-B.pdf .................................................................................... 42
Who We Are, bpca.ny.gov/about/who-we-are ............................... 9
Bill Jacket for ch. 440 (2009), Ltr. from Assemblyman Mike Spano (July 28, 2009) ......... 16, 17 Ltr. from Thomas G. Donlon (Aug. 10, 2009) ................ 18, 61, 63 Sponsor’s Mem. .................................................................. passim
City of New York, Independent Budget Office, The City’s Use of Battery Park City Authority Funds (May 2004), http://www.ibo.nyc.ny.us/iboreports/BPCAfunds.pd ................. 10
N.Y. Const. Convention Comm., Reports, v. 11, Problems Relating to Home Rule and Local Government (1938) ................ 6
PRELIMINARY STATEMENT
This case presents two questions of state law certified to this
Court by the United States Court of Appeals for the Second Circuit.
The case arises from claims for damages brought in federal court by
asbestos handlers who assisted in the cleanup of lower Manhattan
after the terrorist attacks of September 11, 2001, destroyed the
World Trade Center’s Twin Towers and covered the area with an
avalanche of toxic dust and debris. Plaintiffs claim they developed
respiratory and other illnesses because the warnings, equipment,
and other safety measures at their worksites—including property
owned by defendant Battery Park City Authority (BPCA), a public
benefit corporation—were inadequate to protect against the unique
harms posed by the collapsed towers’ detritus.
The United States District Court for the Southern District of
New York (Hellerstein, J.) dismissed plaintiffs’ claims against
BPCA for failure to serve a timely notice of claim, as required by
General Municipal Law § 50-e, which governs claims against
municipalities and other state-created public corporations. The
State Legislature promptly enacted Jimmy Nolan’s Law, General
2
Municipal Law § 50-i(4), to revive claims by post-9/11 cleanup
workers against the State’s public corporations, including New
York City and BPCA, for one year. The district court struck down
Jimmy Nolan’s Law, holding that it violated BPCA’s purported due
process rights under the New York Constitution.
On the workers’ appeal from that ruling, the United States
Court of Appeals for the Second Circuit solicited guidance from this
Court on two questions of New York law. The first certified question
asks whether a court must conduct a “particularized inquiry” into
BPCA’s structure and operations to determine whether it is subject
to the long-standing rule that a public corporation may not raise a
state constitutional challenge to a state law. This Court’s decisions
establish that no particularized inquiry is required before
concluding that a public benefit corporation may not raise such a
challenge. Public benefit corporations, including BPCA, are public
entities created by the State to carry out governmental purposes,
and therefore they have no right to invoke due process against the
Legislature that created them—any more than a municipality or
other political subdivision of the State can. Rather, the State enjoys
3
plenary control over BPCA because of its status as a public benefit
corporation, including authority to set the terms on which BPCA is
amenable to suit and the defenses it may raise. Indeed, as the
Second Circuit noted, “one of the ironies of this case” is that BPCA
“insists that it should not be treated like the State” for purposes of
challenging Jimmy Nolan’s Law, but that it should be treated like
the State for purposes of relying on a notice-of-claim requirement
that applies to BPCA only “by virtue of its status as a public
corporation.” In re World Trade Ctr. Lower Manhattan Disaster Site
Litig., 846 F.3d 58, 64 n.4 (2d Cir. 2017).
The second certified question concerns the standard for
determining whether Jimmy Nolan’s Law satisfies New York’s Due
Process Clause. This Court’s decisions establish that in the case of
a statute that revives claims only against public corporations—and
not private defendants—the applicable standard is a deferential
one that requires the statute to be upheld if it constitutes a
reasonable response to a situation calling for a remedy. Jimmy
Nolan’s Law readily satisfies that test because it was a reasonable
legislative response to the injustice caused by application of New
4
York’s ninety-day notice-of-claim requirement to post-9/11 cleanup
workers who suffered from slow-developing diseases caused by
their work. The statute also furthered important policy goals by
meeting a moral obligation to post-9/11 “second wave” responders
and by demonstrating the State’s commitment to protect those who
in the future may be injured in responding to disasters. Such
legislative objectives are more than sufficient to sustain Jimmy
Nolan’s Law.
ISSUES PRESENTED
The Second Circuit certified the following questions to this
Court (see In re World Trade Ctr. Lower Manhattan Disaster Site
Litig., 846 F.3d at 60–61):
1. Before New York State’s capacity-to-sue doctrine may be
applied to determine whether a state-created public benefit
corporation has the capacity to challenge a state statute, must it
first be determined whether the public benefit corporation “should
be treated like the State,” see Clark-Fitzpatrick, Inc. v. Long
Island R.R. Co., 70 N.Y.2d 382 (1987), based on a “particularized
5
inquiry into the nature of the instrumentality and the statute
claimed to be applicable to it,” see John Grace & Co. v. State Univ.
Constr. Fund, 44 N.Y.2d 84 (1978), and if so, what considerations
are relevant to that inquiry?
2. Does the “serious injustice” standard articulated in
Gallewski v. H. Hentz & Co., 301 N.Y. 164 (1950), or the less
stringent “reasonableness” standard articulated in Robinson v.
Robins Dry Dock & Repair Co., 238 N.Y. 271 (1924), govern the
merits of a due process challenge under the New York State
Constitution to a claim-revival statute?
STATEMENT OF THE CASE
A. Public Benefit Corporations
This case concerns the powers and duties of BPCA, a
state-created public benefit corporation. New York law defines a
“public benefit corporation” as “a corporation organized to construct
or operate a public improvement wholly or partly within the state,
the profits from which inure to the benefit of this or other states, or
to the people.” General Construction Law § 66(4). Public benefit
6
corporations are one of three types of “public corporation” that
exercise governmental functions in New York. Id. § 66(1). The other
two are municipal corporations (like cities and towns) and district
corporations (like fire departments and social services districts).
See id. § 66(2)–(3).
Public benefit corporations, also commonly referred to as
public authorities, are “created by the State for the general purpose
of performing functions essentially governmental in nature.” John
Grace & Co., 44 N.Y.2d at 88. Public authorities thus have a
“governmental origin,” and “their ultimate purpose is the
attainment of some object of public concern.” N.Y. Const.
Convention Comm., Reports, v. 11, Problems Relating to Home Rule
and Local Government 238 (1938).
New York’s Constitution authorizes the Legislature to
establish public authorities, and it “explicitly empower[s] public
authorities to issue bonds and incur debt.” Schulz v. State of New
York, 84 N.Y.2d 231, 245 (1994). The State may not be held “liable
for the payment of any obligations issued by such a public
corporation,” N.Y. Const. art. X, § 5, just as the State may not
7
“give[ ] or loan[ ]” its “credit” to a municipality, see id. art. VII § 8(1).
This limitation helps to “insulate the State from the burden of long-
term debt.” Schulz, 84 N.Y.2d at 244; see also Wein v. State, 39
N.Y.2d 136, 144 (1976). But the fiscal separation between the State
and its public authorities does not make such authorities
independent from the Legislature’s control. To the contrary, the
New York courts “consistently” have reaffirmed that the
Legislature retains “plenary power to alter or revoke” features of
public corporations, even though the State does not guarantee these
entities’ debt. Black Riv. Regulating Dist. v. Adirondack League
Club, 307 N.Y. 475, 488–89 (1954); see also, e.g., City of New York
v. State of New York, 86 N.Y.2d 286, 289–90 (1995).
B. Battery Park City Authority (BPCA)
1. BPCA’s organization and purposes
The New York State Legislature established BPCA in 1968 to
address the urban decay afflicting Manhattan’s lower west side.
See, e.g., Public Authorities Law § 1971. At the time, conditions in
this “blighted” zone were “substandard, insanitary, [and]
deteriorated.” Id. The area contained “obsolete and dilapidated
8
buildings and structures,” including abandoned shipping facilities,
with “defective construction and outmoded design.” Id.
The Legislature created BPCA to accomplish two public
purposes. First, BPCA was to facilitate the development of “a mixed
commercial and residential community, with adequate utilities
systems and civic and public facilities,” in place of the blighted
structures. Id. Second, BPCA was charged with contributing
“capital resources necessary to provide” the public with low-income
housing, an adequate supply of which “[t]he ordinary operations of
private enterprise cannot provide.” Id.
As a “public benefit corporation,” id. § 1973(1), BPCA has no
shareholders or private owners of any kind, and it exists solely to
perform its “governmental function in the exercise of the powers
conferred upon it” by the Legislature, id. § 1981(1). BPCA has seven
members who are appointed by the governor with legislative
consent. Id. § 1973(1). It exercises only those powers enumerated in
its enabling statutes, which permit BPCA “[t]o sue and be sued,” id.
§ 1974(1); to acquire property, id. § 1974(3); to lease that property
9
to others, id. § 1974(8); to set and collect rental fees, id. § 1974(11);
and to borrow money by issuing bonds, id. § 1974(24).
BPCA maintains its own general fund, separate from that of
the State. Id. § 1975(1). The State is not liable on BPCA’s bonds, id.
§ 1979, which are tax-exempt because “the creation of the authority
and the carrying out of its corporate purposes [are] in all respects
for the benefit of the people of the state of New York,” id. § 1981(1).
2. BPCA’s operations and finances
By the early 1980s, BPCA had finalized a development plan
and obtained legal title to the entire ninety-two-acre site now
known as Battery Park City. Over the past three decades, the
project has proved a success: the property owned by BPCA and
leased to private entities contains more than nine million square
feet of commercial space and seven million square feet of housing,
and a third of the area is dedicated to parkland. See Battery Park
City Auth., Who We Are.
BPCA takes in substantial rental revenues, of which it has
remitted a sizable amount to the City and State. In 2016, BPCA
reimbursed the City more than $123.4 million in payments in lieu
10
of taxes;1 in 2010, BPCA agreed to pay $200 million each to the City
and State, in addition to providing hundreds of millions of dollars
to support affordable housing, BPCA, Financial Statements: Years
Ended October 31, 2016 and 2015, at 48 (Jan. 31, 2017). As of
January 2011, BPCA had transferred more than $2.2 billion in total
revenue to the City alone. BPCA, Annual Report 51 (Jan. 31, 2011).
C. Plaintiffs’ Claims Against BPCA
1. Plaintiffs’ injuries from their participation in post-9/11 cleanup
These consolidated appeals involve claims for personal
injuries asserted by eighteen workers who helped to remove dust
and debris from sites in lower Manhattan following the terrorist
attacks of September 11, 2001. The Twin Towers’ destruction
1 Property owned or controlled by BPCA is exempt from local
property taxes. See Public Authorities Law § 1981(1). However, as a condition of their leases, BPCA’s tenants generally make payments in lieu of taxes to BPCA in amounts approximating what local property taxes would be; BPCA, in turn, remits a portion of those payments to New York City pursuant to an agreement between the two entities. See City of New York, Independent Budget Office, The City’s Use of Battery Park City Authority Funds 1–2 (May 2004).
11
created a massive dust plume, comprising a “complex mixture of
pulverized cement, glass fibers, asbestos, crystalline silica, metals,
volatile organic compounds, and other chemicals, some of which
were known human carcinogens.” In re World Trade Ctr. Lower
Manhattan Disaster Site Litig. (“In re World Trade Ctr.”), 44 F.
Supp. 3d 409, 417 (S.D.N.Y. 2014). The dust mass penetrated
buildings extending over a several-block radius of the Twin Towers,
leaving deposits ranging from less than an inch to ten feet deep. See
id. Restoring these buildings to a safe condition required months of
difficult and dangerous rehabilitative work that plaintiffs (among
many others) personally performed.
Plaintiffs later developed injuries, including respiratory
maladies, allegedly suffered as a result of their work in
decontaminating BPCA-owned property. Plaintiffs filed these
lawsuits seeking compensation from BPCA and others under New
York’s worksite safety statutes and common law of negligence. They
filed suit in the United States District Court for the Southern
District of New York, rather than state court, pursuant to the Air
Transportation Safety and System Stabilization Act (ATSSSA),
12
which vested the district court with “exclusive jurisdiction over all
actions brought for any claim (including any claim for loss of
property, personal injury, or death) resulting from or relating to the
terrorist-related aircraft crashes of September 11, 2001.” Pub. L.
107-42, § 408(b)(3), 115 Stat. 230, 241 (2011) (codified at 49 U.S.C.
§ 40101 note). New York law furnishes “[t]he substantive law for
decision in any such suit.” Id. § 408(b)(2).
All of plaintiffs’ suits were assigned to Judge Alvin K.
Hellerstein, who consolidated them with others for pretrial
purposes. (See Case Mgmt. Order, No. 21-MC-102 (S.D.N.Y. Aug. 9,
2005), ECF No. 1.) The thrust of the claims is that workers did not
receive sufficient equipment or information to protect against the
health hazards posed by post-9/11 cleanup operations. Although the
plaintiffs’ individual circumstances vary, most or all claim harm
from the “high mass concentration, large particulate matter, and
high alkalinity” of the substances they touched or inhaled on the
job. And they allege that the safety measures in place did not
adequately address these perils. In re World Trade Ctr., 44 F. Supp.
3d at 417–18.
13
For example, some plaintiffs have introduced evidence that
supervisors told workers at BPCA-owned property that respirators
were unnecessary. See id. at 422. Others describe having been given
unsuitable “‘asbestos-specific’ respirators” that led “to constrained
air flow and leakage of contaminated air into the lungs.” Id. at 418.
And evidence shows that warnings and safety-equipment
instructions at several worksites were not provided in workers’
native languages. (WGENB Plaintiffs’ Master Mem. in Opp. at 5–
6, No. 21-MC-102 (S.D.N.Y. July 30, 2014), ECF No. 5343.)
For these harms, plaintiffs seek redress from various
defendants—such as employers, building managers, and property
owners. (E.g., Appendix (A.) 42, 101, 160.) As relevant here,
plaintiffs also sue BPCA as owner of some of the contaminated work
sites. (A. 69, 138, 187.) The district court has held that BPCA may
face liability under various theories for failing to provide
“reasonable and adequate protection” to plaintiffs under sections
200 and 241(6) of New York’s Labor Law. See In re World Trade
Ctr., 44 F. Supp. 3d at 433–43.
14
2. Initial timeliness rules for plaintiffs’ claims
In general, New York statutes limit the time in which
plaintiffs may pursue tort claims against public defendants,
including public authorities, often requiring that initial steps be
taken on far tighter timeframes than apply to similar suits against
private parties. As a condition precedent to suing those defendants
in tort, a prospective plaintiff must serve a notice of claim within
ninety days after the claim arises, stating the claimant’s injuries
and the circumstances under which they arose. See General
Municipal Law § 50-e(1)–(2); Public Authorities Law § 1984.
In addition to serving a timely notice of claim, a plaintiff must
file suit within the generally applicable limitations period. In New
York, a personal injury claim must be brought within three years
of accrual. C.P.L.R. 214(5). A claim for latent injury from exposure
to a harmful substance accrues “on the date of discovery of the
injury by the plaintiff or on the date when through the exercise of
reasonable diligence the injury should have been discovered,
whichever is earlier.” Id. 214-c(3). Accrual triggers both the
three-year limitations period and the ninety-day window for
15
serving a notice of claim. Id. 214-c(2)–(3). Although a court may “in
its discretion” extend the time to serve a notice of claim on a public
corporation, the plaintiff must move within the outer limitations
period and show that circumstances justify deviation from the
ninety-day deadline. General Municipal Law § 50-e(5); see, e.g.,
Perez v. Battery Park City Auth., 100 A.D.3d 460 (1st Dep’t 2012)
(affirming denial of leave to serve late notice of claim).
In this litigation, the district court enforced the
notice-of-claim requirement as a part of New York’s “substantive
law” under the ATSSSA. Pub. L. 107-42, § 408(b)(3). See supra at
12. Thus, in July 2009, the court dismissed the claims of more than
600 plaintiffs “for failure to serve a Notice of Claim on BPCA”
within the ninety-day window. (July 29, 2009 Summ. Order, Ex. C,
A. 412–427.) On the same ground, the court likewise dismissed the
claims of 124 plaintiffs against the City of New York and other
municipal entities, including the Department of Education, the
School Construction Authority, and the City University of New
York. (July 29, 2009 Summ. Order, Exs. A–B, A. 408–411.)
16
D. The State Legislature Enacts Jimmy Nolan’s Law to Allow Claims Against Public Corporations to Proceed
After the district court’s July 2009 dismissal order, the
Legislature swiftly and unanimously enacted Jimmy Nolan’s Law.
See Ch. 440, 2009 N.Y. Laws 7122 (codified at General Municipal
Law § 50-i(4)). The statute’s namesake is a Yonkers carpenter who
worked at the World Trade Center site, sleeping there for weeks,
before developing respiratory complications that cost him hundreds
of dollars per month. Ltr. from Assemblyman Mike Spano (July 28,
2009), in Bill Jacket for ch. 440 (2009), at 5. The new law revived
for one year any claim against any “public corporation” for
“personal injuries suffered by a participant in World Trade Center
rescue, recovery or cleanup operations.” General Municipal Law
§ 50-i(4)(a).
A dominant purpose of Jimmy Nolan’s Law was to forgive
noncompliance with notice-of-claim requirements. The law singles
out provisions “requiring as a condition precedent to
commencement of an action . . . that a notice of claim be filed or
presented,” and states that qualifying claims may proceed
17
notwithstanding such provisions or any other “applicable period of
limitation.” Id. The statute’s Assembly sponsor urged the Governor
to sign the bill to override the prevailing provisions giving workers
“only 90 days to file a claim.” Ltr. from Spano, in Bill Jacket for ch.
440, supra, at 5. The Legislature thus acted out of concern that
many injured workers had been unfairly disadvantaged in seeking
redress from public defendants.
As the sponsor’s memorandum explained, “thousands of
World Trade Center workers have developed disabling respiratory
illnesses and other injuries at rates that greatly exceed those of the
general population.” Sponsor’s Mem., in Bill Jacket for ch. 440,
supra, at 6. The memorandum concluded that these workers should
not be denied the right to seek full compensation “because they
were provided incorrect information about their work conditions,
did not immediately recognize the causal connection between their
injuries and the exposure, or were unaware of the applicable time
limitations.” Id.
The State Office of Homeland Security explained further that
Jimmy Nolan’s Law sends a “message to future responders that
18
their needs will not be forgotten.” Ltr. from Thomas G. Donlon (Aug.
10, 2009), in Bill Jacket for ch. 440, supra, at 15. “This, in turn, will
help to encourage individuals to respond to any future catastrophic
events as heroically as our 9/11 responders.” Id. at 16.
E. Procedural History
1. The district court holds that Jimmy Nolan’s Law violates the New York Constitution
In August 2014, BPCA moved for summary judgment against
eight workers who had filed suit before the effective date of Jimmy
Nolan’s Law. (A. 222–224.) None had served a notice of claim
against BPCA before the law’s passage (A. 227–230), but each did
so afterward within the one-year revival period (e.g., A. 317, 320,
323, 327). BPCA argued that Jimmy Nolan’s Law violated its due
process rights under New York’s Constitution.2 The Attorney
2 The revival of time-barred claims does not implicate federal
due process protections. See Chase Sec. Corp. v. Donaldson, 325 U.S. 304, 311–12 (1945). Thus, BPCA has limited its challenge to state law. (See, e.g., Dec. 3, 2014 Hr’g Tr. at 22, A. 647 (district court’s recognition that “this is purely a motion based on the New York State constitution”).)
19
General of the State of New York intervened to defend the law. (See
A. 220, 610.)
By opinion and order dated December 8, 2014, the district
court awarded summary judgment to BPCA. (A. 776–792.) The
court first held that a “particularized inquiry” was required to
determine whether BPCA, as a public benefit corporation, should
be considered independent of the State and thus endowed with the
“capacity to challenge the constitutionality of” Jimmy Nolan’s Law.
(A. 786.) Conducting this inquiry, the court viewed BPCA as having
been “created to . . . perform[ ] primarily private functions, funded
primarily by private means,” including via bond issuances for which
BPCA is “solely responsible” and the State is not liable. (A. 785.)
The court based a finding of capacity on the notion that revival of
time-barred claims “burdens BPCA’s general fund and its ability to
repay bond obligations.” (A. 785.)
On the merits, the court held that Jimmy Nolan’s Law
violated BPCA’s state due process rights. According to the district
court, this Court has upheld revival statutes “only in limited” and
“narrow” circumstances. (A. 786, 791.) The district court held that
20
the “three rationales for Jimmy Nolan’s law”—(a) incorrect
information about working conditions, (b) failure to appreciate a
causal connection between the injuries and work, and
(c) unawareness of the limitations period—did “not amount to the
‘exceptional circumstances’” that New York law requires to revive
time-barred claims. (A. 789 (citing Gallewski, 301 N.Y. at 174).) The
district court concluded, contrary to New York’s Legislature, that
“[t]here was no lingering injustice that Jimmy Nolan’s law had to
correct.” (A. 790.)
In March 2015, BPCA moved for summary judgment against
another 171 plaintiffs who had not served timely notices of claim.
(A. 649–664.) The district court granted that motion and ordered
the claims dismissed. (A. 793–800.) A number of plaintiffs whose
revived claims against BPCA were dismissed then settled with
other defendants, leading to entry of final judgment in the actions.
(A. 665, 683, 770.) Eighteen of these plaintiffs are now appealing
the earlier award of summary judgment to BPCA. (A. 676, 769,
774.)
21
2. The Second Circuit certifies two questions to this court
On direct appeal, the Second Circuit declined to decide
(a) whether BPCA lacks power to mount a state constitutional
challenge to a state statute, or (b) whether Jimmy Nolan’s Law
comports with the State Constitution’s Due Process Clause.
Instead, the Second Circuit requested this Court’s guidance on both
issues. In re World Trade Ctr. Lower Manhattan Disaster Site
Litig., 846 F.3d at 70.
The Second Circuit considered state law to be unsettled on the
question of BPCA’s authority to challenge a state statute on state
due process grounds. Id. at 64. The court acknowledged that “New
York follows the traditional capacity-to-sue rule, which states that
municipalities and other local governmental corporate entities and
their officers lack capacity to mount constitutional challenges to
acts of the State and State legislation.”3 Id. at 63 (quotation marks
3 The Second Circuit rejected BPCA’s argument that this bar
on constitutional challenges extends only to laws that “restrict [a] public entity’s governmental powers.” In re World Trade Ctr. Lower Manhattan Disaster Site Litig., 846 F.3d at 67 (citing City of New York, 86 N.Y.2d at 293).
22
omitted). But the court identified “an absence of definitive guidance
on” whether “a particularized inquiry” was required to determine
whether a public benefit corporation like BPCA was subject to the
traditional capacity-to-sue rule. Id. at 67; see id. at 64.
The Second Circuit likewise declined to decide whether
Jimmy Nolan’s Law violated BPCA’s state due process rights. See
id. at 67–69. The Second Circuit observed that this Court’s
decisions have appeared to evaluate claim-revival statutes under
“two differing legal standards”: a “less strict” reasonableness
standard, and a comparatively “stringent” serious-injustice
standard. Id. at 68–69 (quotation marks omitted). See infra at 49–
51 (surveying decisional law). Because no available New York State
decision has ever “struck down any statute reviving expired
claims,” the Second Circuit found it “difficult to perceive” the extent
to which “the various tests differ.” Id. at 69.
The Second Circuit thus certified two questions to this Court:
(a) whether a particularized inquiry into BPCA’s functions and
purposes is necessary to determine its ability to challenge Jimmy
Nolan’s Law on state due process grounds; and (b) assuming BPCA
23
may challenge Jimmy Nolan’s Law on state due process grounds,
what substantive standard applies. In certifying these questions,
the court expressly noted that its questions “do not bind” this Court,
which “may expand these certified inquiries to address any further
question of New York law as might be relevant to the particular
circumstances presented in this appeal.” Id. at 70.
STATEMENT OF JURISDICTION
The United States District Court for the Southern District of
New York had jurisdiction over the twenty-one actions giving rise
to these consolidated appeals under the ATSSSA, 49 U.S.C. § 40101
note. The United States Court of Appeals for the Second Circuit has
appellate jurisdiction over plaintiffs’ consolidated appeals under 28
U.S.C. § 1291. This Court has jurisdiction to address the questions
of New York law certified by the Second Circuit pursuant to article
VI, § 3(9) of the New York Constitution and Rule 500.27
(22 N.Y.C.R.R.) of this Court.
24
ARGUMENT
POINT I
A NEW YORK PUBLIC BENEFIT CORPORATION CANNOT ASSERT A STATE DUE PROCESS CHALLENGE TO A LAW THAT DEFINES ITS POWERS AND RESPONSIBILITIES
The answer to the first certified question is that no
“particularized inquiry” is required to determine whether a New
York State public benefit corporation may challenge the constitu-
tionality of a state law that defines its powers and responsibilities.
Rather, the mere fact that BPCA is a public benefit corporation is
enough to bar its constitutional claim here.
The State created BPCA solely to fulfill the public purposes
set forth by the Legislature, using powers conferred by the
Legislature. As a public entity exercising statutorily conferred
powers for the public’s benefit, BPCA “cannot claim rights under
the Constitution against State action.” Matter of Ruffino v. Rosen &
Sons, 142 A.D.2d 177, 181 (3d Dep’t 1988), aff’d on lower court
opinion, 74 N.Y.2d 861 (1989). And no “particularized inquiry” is
required to reach this conclusion. Rather, the only feature of BPCA
that matters here is the undisputed fact that, as a public benefit
corporation, it remains subject to the Legislature’s plenary control.
25
Because “[t]he number and nature of [BPCA’s] powers are within
the State’s absolute discretion,” the “alteration, impairment or
destruction of those powers by the Legislature presents no question
of constitutionality.” Black Riv. Regulating Dist., 307 N.Y. at 487.
A. The Legislature’s Plenary Authority over Public Corporations Precludes Them from Challenging the Constitutionality of Legislation Defining Their Duties and Powers.
This Court has “consistently” enforced the rule that “political
power conferred by the Legislature confers no vested right as
against the government itself.” Black Riv. Regulating Dist., 307
N.Y. at 488. This rule recognizes that the Legislature ultimately
retains “supreme” authority “over its creatures,” and that any
“power conferred by the Legislature” is subject to alteration
“exclusively” at legislative election. Id.; see also Ruotolo v. State of
New York, 83 N.Y.2d 248, 261 (1994) (noting “ironical and
anomalous ring to” argument “that the retroactive application of
laws would be violative of due process somehow owed to the State”).
Accordingly, in New York, “municipalities and other local
governmental corporate entities and their officers lack capacity to
26
mount constitutional challenges to acts of the State and State
legislation.” City of New York, 86 N.Y.2d at 289. This rule makes
sense because “[n]one of the civil divisions of the State . . . has any
independent sovereignty.” Bernardine v. City of New York, 294 N.Y.
361, 365 (1945). Rather, a municipal or other public corporation is
“created as a convenient agency for the exercise of such of the
governmental powers of the State as may be intrusted to it.” City of
Trenton v. New Jersey, 262 U.S. 182, 185–86 (1923); see also, e.g.,
City of New York, 86 N.Y.2d at 290 (citing City of Trenton).
This Court has used various formulations to describe the
inability of public entities to challenge state laws as
unconstitutional. It has sometimes said such entities lack the
capacity or authority to bring such claims against the State. See,
e.g., City of New York, 86 N.Y.2d at 289–90. In other decisions, it
has rejected public corporations’ constitutional challenges to state
laws on the merits, based on their inherently subordinate status in
relation to the Legislature. See, e.g., Matter of County of Cayuga v.
McHugh, 4 N.Y.2d 609, 614–15 (1958). And in another recent case,
it noted the possibility that state due process claims by public
27
entities might fail because such entities are not “persons” protected
by the State Due Process Clause. See Matter of County of Chemung
v. Shah, 28 N.Y.3d 244, 262 (2016) (declining to reach issue on
grounds it had not been preserved).
These various formulations reflect a common core principle:
because public corporations are purely creatures of state law, the
Legislature has plenary authority over their powers and
responsibilities. And that authority precludes any attempt by such
entities to thwart the Legislature’s decision to “withhold, grant or
withdraw [their] powers and privileges, as it sees fit.” City of
Trenton, 262 U.S. at 187.
This bar on constitutional challenges to state legislation has
been extended to a broad range of public entities, including cities,
City of New York, 86 N.Y.2d at 295; counties, Matter of County of
Cayuga, 4 N.Y.2d at 614–15; municipal hospitals, Village of
Herkimer v. Axelrod, 58 N.Y.2d 1069, 1071 (1983); school districts,
Matter of Jeter v. Ellenville Cent. School Dist., 41 N.Y.2d 283, 287
(1977); and legislatively created special funds, Matter of Ruffino,
74 N.Y.2d 861. In a seminal decision, this Court confirmed that the
28
same rule extends to public authorities like BPCA, expressly
holding that such authorities have no “status to challenge [the]
validity” of state legislation on constitutional grounds. Black Riv.
Regulating Dist., 307 N.Y. at 490; see also Capital Dist. Regional
Off-Track Betting Corp. v. Levitt, 65 A.D.2d 842, 843-44 (3d Dep’t
1978) (applying Black River Regulating District in holding that
public benefit corporation lacked “standing to challenge the
constitutionality” of state statute), lv. denied, 46 N.Y.2d 710 (1979).
The authority in Black River Regulating District had raised a
state due process challenge to a statute prohibiting the authority
from building a reservoir to control a river’s flow. 307 N.Y. at 483,
489. This Court rejected that claim, holding that the authority was
“without power to challenge” a state law on due process grounds.
Id. at 489. The authority performed “governmental functions” to
achieve “a State purpose” for the “public health, safety and
welfare,” and its “directors [we]re only trustees for the common
good.” Id. at 489. As such, “[t]he number and nature of its powers
[we]re within the State’s absolute discretion.” Id. at 487.
29
The same is true of BPCA. BPCA “perform[s] a governmental
function” to promote “the health, safety, [and] welfare” of New
Yorkers. Public Authorities Law §§ 1971, 1981(1); see also N.Y.
Const. art. XVIII, § 1. BPCA has no shareholders; its board is
selected entirely by the governor and the Legislature; and its
internal governance is prescribed exclusively by statute, not by a
charter or similar document that BPCA could itself amend. Public
Authorities Law §§ 1973–1974-d. Further, BPCA’s members are
bound by duties of loyalty and trust to the public. See id. § 1973(3)
(incorporating government ethics standards in Public Officers Law
§§ 73–74)). Consistent with its public-entity status, BPCA is
therefore “without power” to mount a due process challenge to
Jimmy Nolan’s Law. Black Riv. Regulating Dist., 307 N.Y. at 489.
A contrary rule giving government-created entities the right
to halt the implementation of duly enacted laws would severely
undermine the State’s ability to control the operations of its own
creations in a manner that best serves the public interest. As this
Court has repeatedly recognized, public benefit corporations such
as BPCA “perform[ ] functions essentially governmental in nature”
30
to serve the public interest. John Grace & Co., 44 N.Y.2d at 88
(emphasis added). The State frequently grants public corporations
certain benefits to allow them to function more nimbly than other
government entities—for example, exemptions from public bidding
requirements and civil service laws, see Matter of Levy v. City
Commn. on Human Rights, 85 N.Y.2d 750, 744–45 (1985), and the
ability to grant or loan money to private parties, see Bordeleau v.
State of New York, 18 N.Y.3d 305, 315–16 (2011). Allowing
governmental entities to assert due process rights when the State
wishes to alter such benefits would impermissibly “tie the hands”
of the Legislature. City of Covington v. Kentucky, 173 U.S. 231, 238
(1899).4
The present matter is a case in point. The Legislature initially
chose to use the provisions of General Municipal Law § 50-e to
specify how BPCA may be sued for tort claims. See Public
Authorities Law § 1984. But the Legislature was not required to do
so. The Legislature may subject public entities to suit “upon such
4 BPCA, like the municipal corporation in Covington, is
exempt from state taxation. See Public Authorities Law § 1981.
31
conditions as the Legislature, in its wisdom, sees fit to impose,”
Brown v. Board of Trustees of Town of Hamptonburg School Dist.
No. 4, 303 N.Y. 484, 489 (1952), and it could have chosen to use
other previously established procedures or set up a specialized
scheme applicable to BPCA alone, see, e.g., Public Authorities Law
§ 2622(3)–(4) (providing that certain tort claims against Olympic
Regional Development Authority must be brought in Court of
Claims, while others must be brought in Supreme Court). Just as
there was no constraint on the Legislature’s initial choice of BPCA’s
amenability to suit, so there is no bar on the Legislature’s later
enactment of Jimmy Nolan’s Law to amend the terms on which
BPCA may be sued by post-9/11 cleanup workers.
Both at its conception and in its continuing operation, the sole
purpose and function of BPCA is to serve the Legislature’s ends, not
to thwart the Legislature’s ability to accomplish those ends.
Dictating the terms on which such public entities may be sued—
and the immunities they may raise in defense—is an important
means by which the Legislature ensures that the entities it creates
will serve the public interest. The ability to modify those terms over
32
time is no less important a tool of government to ensure that the
public interest continues to be served.
B. No Particularized Inquiry Is Needed to Determine Whether a Specific Public Corporation Is a Creature of the Legislature Subject to Its Plenary Authority.
1. The “particularized inquiry” test does not apply where, as here, a public corporation seeks to assert a due process right against the Legislature itself.
The district court misapplied the foregoing principles based
on its mistaken view that a “particularized inquiry” was required
to determine whether BPCA could challenge Jimmy Nolan’s Law
on state due process grounds (A. 783 (quotation marks omitted)).
The court’s reliance on the “particularized inquiry” test was a
category error. That test determines only the relationship between
third parties and public benefit corporations—specifically, whether
such corporations should be treated as the State in matters
affecting third parties. The “particularized inquiry” test has no
application whatsoever to the relationship between the State and
its own public authorities.
33
When a third party sues a public benefit corporation, a
threshold question in every such case is whether the Legislature
intended “the public benefit corporation [to] be treated like the
State” for a particular purpose. Clark-Fitzpatrick, Inc., 70 N.Y.2d
at 387. Courts engage in a “particularized inquiry” to determine
this legislative intent—looking to the “statutes creating” the
corporation in question and “empowering it” to act as evidence of
legislative design. John Grace & Co., 44 N.Y.2d at 88. For instance,
in Clark-Fitzpatrick, Inc., this Court held that the Long Island Rail
Road, like the State itself, should be immune from punitive
damages claims by third parties, given the significant public
funding received by the Rail Road and the fact that it would “not be
desirable” to burden “so important a public function” as the
provision of commuter transportation “by the imposition of punitive
damages.” Id.
But such a “particularized inquiry” into whether the
Legislature intended a public benefit corporation to be treated like
the State as against third parties has nothing to do with whether
that corporation may itself challenge legislative action. Instead,
34
that distinct issue is resolved by this Court’s repeated recognition
that legislatively created entities “cannot have the right to contest
the actions of their principal or creator”—i.e., the Legislature—
because they are “purely creatures or agents of the State”
subordinate to the Legislature’s comprehensive authority. City of
New York, 86 N.Y.2d at 290; see also City of Rye v. Metropolitan
Transp. Auth., 24 N.Y.2d 627, 635 (1969) (“[P]ublic authorities are
created by the New York Legislature as specific entities under
specific names with specific powers.”). Allowing such entities to
disable the Legislature from acting would be inconsistent with the
Legislature’s “absolute discretion” over their powers and responsi-
bilities. Black Riv. Regulating Dist., 307 N.Y. at 487. Thus, no
further inquiry into the particular features of a public benefit
corporation is required to recognize that it generally lacks the
ability to raise constitutional objections to the actions of its creator.5
5 There are only a few narrow exceptions to the bar against
public benefit corporations raising constitutional objections to state laws—such as when complying with a state statute would itself be a violation of a separate constitutional duty. But no such exception is presented here, as explained infra at 43–49.
35
2. In any event, BPCA shares the essential features of other public entities that are indisputably precluded from challenging state laws on state constitutional grounds.
Even if a “particularized inquiry” were conducted here, it
would lead to the conclusion that BPCA’s essential features are no
different from those of other public entities that lack the ability to
challenge state laws modifying their powers and responsibilities.
There is no serious dispute here that BPCA, like other public
corporations, remains subject to the Legislature’s plenary control.
BPCA is run by appointees of the governor and the Legislature and
has no private owners, managers, or directors; it performs only
public functions, which are prescribed and may freely be amended
by the Legislature; and it derives all of its powers from laws that
the Legislature may alter or abolish as it sees fit. The Legislature
thus has free rein to dictate BPCA’s priorities, direct its
expenditures, and even dissolve it entirely, at its discretion.6
6 BPCA has mistakenly attempted to rely in this litigation on
a statute providing that no law dissolving BPCA “shall take effect so long as the authority shall have bonds, notes and other obligations outstanding, unless adequate provision has been made
36
The details of BPCA’s operations reinforce this conclusion. Its
statutorily defined objectives—improving a “blighted area” and
supporting low-income housing, Public Authorities Law § 1971—
are “constitutionally recognized public purpose[s]” in this State.
Matter of Goldstein v. New York State Urban Dev. Corp., 13 N.Y.3d
511, 524 (2009); see N.Y. Const. art. XVIII, §§ 1, 10 (empowering
Legislature to pursue these objectives on “such terms and
conditions as it may prescribe”). And while BPCA works with the
private sector to accomplish these objectives, a legislative charge to
work “with the private sector,” Public Authorities Law § 1971
(emphasis added), does not make BPCA part of the private sector
or convert its public purposes into private ones. BPCA does not
exist, as a private corporation does, to make money for itself or its
shareholders—it has none. Rather, the Legislature created BPCA
to promote economic redevelopment and affordable housing in the
for the payment thereof in the documents securing the same.” Public Authorities Law § 1973(6). But that statute does not confer constitutional rights on BPCA as against the Legislature, which remains free to amend its statutes without violating any entitlement of BPCA.
37
“public interest.” Id. And it expressly provided that BPCA’s
“carrying out of its corporate purposes is in all respects for the
benefit of the people of the state of New York,” and that BPCA “shall
be regarded as performing a governmental function in the exercise
of the powers conferred upon it.” Id. § 1981(1); see also Clark-
Fitzpatrick, Inc., 70 N.Y.2d at 387 (similar language in enabling
legislation “inexorably” led to conclusion that authority performed
“essential public function”).
Thus, even if a particularized inquiry into BPCA’s status or
activities were appropriate here—and it is not—such an inquiry
would reinforce rather than rebut the premise that BPCA is a
public entity created by the Legislature to serve public ends. It is
thus appropriately subject to ongoing legislative control. Indeed,
whatever “characteristics of a private corporation” BPCA may have,
Collins v. Manhattan & Bronx Surface Tr. Operating Auth., 62
N.Y.2d 361, 367 (1984) (quotation marks omitted), all of these
features are granted by the Legislature. BPCA’s position in this
litigation thus hinges on a fundamental inconsistency: it essentially
relies upon powers granted by the Legislature to assert the right to
38
challenge further legislative action. This Court has squarely
rejected this argument, holding that any “political power conferred
by the Legislature confers no vested right as against the
government itself.” Black Riv. Regulating Dist., 307 N.Y. at 488.
Finally, contrary to the district court’s flawed reasoning,
BPCA is not exempt from the rule prohibiting it from challenging
legislative action simply because it is different in several respects
from a municipality or other local government agency. In fact, to
the extent there are any such differences, they weigh against
BPCA’s position in this litigation, since municipalities and other
local governments enjoy far greater independence from the State
(and the Legislature) than public benefit corporations like BPCA.
For instance, the New York Constitution specifically provides an
exception to the State’s plenary authority over municipalities in the
“home rule” article, see N.Y. Const. art. IX, §§ 1–3, and local
governments are operated by elected officials who must answer to
their own constituents, see N.Y. Const. art. IX, § 1(a)–(b). But
notwithstanding these indicia of independence—none of which
apply to public benefit corporations like BPCA—municipalities and
39
local governments are indisputably barred from challenging state
laws on constitutional grounds. See City of New York, 86 N.Y.2d at
293. It would be deeply anomalous to allow a public benefit
corporation subject to plenary legislative control to challenge
legislative action, when municipalities and local governments with
greater independence from the State cannot.
3. The district court misread the governing case law in concluding otherwise.
The district court held that a particularized inquiry was
required, and should be resolved in BPCA’s favor, based on this
Court’s decision in Patterson v. Carey, 41 N.Y.2d 714 (1977).
(A. 784–785.) The court’s reliance on Patterson was misplaced.
Patterson involved a dispute over whether state legislation
violated the constitutional rights of bondholders of the Jones Beach
State Parkway Authority, who were represented in the litigation by
their institutional trustee. After the authority had increased a
highway toll, the Legislature rescinded the increase and subjected
future toll increases to the Comptroller’s approval. Patterson, 41
N.Y.2d at 718–19. The authority and the bondholders’ institutional
40
trustee together sued to block the legislation. Id. at 719. This Court
held the law to infringe the constitutional rights of bondholders,
who depended on toll revenue for bond payments, but made no
mention of any constitutional rights of the authority. Id. at 721. In
a single sentence in a footnote, however, the court stated “that the
governmental plaintiffs, as well as the institutional representative
of the bondholders, ha[d] sufficient standing to maintain th[e]
action.” Id. at 719 n.*.
Patterson’s one-sentence treatment of the authority’s
standing does not undermine the more fully reasoned New York
decisions holding that public entities lack power to raise
constitutional challenges to state legislation, regardless of the
legislation’s effects on their finances. See People v. Hobson, 39
N.Y.2d 479, 490 (1976) (“ipse dixit” ruling or “conclusory assertion
of result” is considered “less binding” than “line of reasoned and
consciously developed cases”). Indeed, the text of Patterson makes
no mention of any rights held by the authority at all, focusing
instead solely on “the rights of the bondholders” that were parties
to the proceeding (through their trustee). 41 N.Y.2d at 720
41
(emphasis added). And no party contested the authority’s standing
or capacity to sue. See Br. for Individual Pls.-Resps.-Appellants A.
Holly Patterson et al., at 2 n.**, Patterson, 41 N.Y.2d 714
(No. 3948/75) (“The Attorney General must be deemed to have
abandoned the question of plaintiffs’ standing, since he has not
briefed it either in this Court or in the Appellate Division.”).
In these proceedings, by contrast, no party representing
bondholders is a party, and BPCA has not purported to assert the
rights of bondholders.7 BPCA has also identified no concrete injury
to its bondholders caused by Jimmy Nolan’s Law. BPCA has not
asserted (and could not assert) that Jimmy Nolan’s Law actually
will impair the authority’s “ability to repay bond obligations” in
light of BPCA’s substantial revenues. (A. 785.) See supra at 9–10.
Current bondholders were not unfairly surprised by Jimmy Nolan’s
Law, but rather received notice that the statute (and the tort claims
7 It is unclear whether BPCA, as opposed to the trustee for
BPCA’s bondholders, could even raise any such grievances. See Black Riv. Regulating Dist., 307 N.Y. at 489 (public corporation lacked “independent status” to challenge state law “to protect the interests of creditors”).
42
it authorized) might affect BPCA’s finances.8 And even if plaintiffs
suing under Jimmy Nolan’s Law obtained money judgments
against BPCA, bondholders’ “debt service obligations” would
receive “priority” of payment from BPCA. (Aff. of Robert M. Serpico
¶ 7, A. 624.)
By contrast, the harm to bondholders in Patterson was direct
and essentially uncontested: the tolls limited by the Legislature in
that case were “the sole source of funds for bond repayment,” 41
N.Y.2d at 721; see also Public Authorities Law § 153-b(5) (1961)
(empowering Authority specifically to increase tolls if necessary to
meet bond obligations). Moreover, the State had specifically
pledged to vest the public authority there “with the power to raise
tolls, in its sole discretion,” as it deemed necessary to meet bond
8 To the contrary, a December 2009 prospectus notified
potential investors of Jimmy Nolan’s Law, along with BPCA’s unqualified prediction “that the cases that were previously dismissed” for the “failure to timely file a notice of claim” would “be restored.” Official Statement, $87,235,000 BPCA Senior Revenue Bonds 41 (Dec. 15, 2009). A subsequent October 2013 prospectus relayed that tort cases arising from post-9/11 cleanup work in Battery Park City had been “permitted to proceed.” Official Statement, $362,785,000 BPCA Senior Revenue Bonds 44 (Oct. 17, 2013). Financial statements show no other outstanding bond issuances. See BPCA, Financial Statements, supra, at 11.
43
obligations. Patterson, 41 N.Y.2d at 717–21 (emphasis added)
(referring to then-effective Public Authorities Law § 153-b(5)).
Legislative annulment of an increase in tolls thus deprived
bondholders of an essential feature of their bargain. Id. at 720. No
similar circumstances are presented here.
C. No Exception Applies That Would Permit BPCA to Assert Due Process Rights Against the State.
1. Jimmy Nolan’s Law does not deprive BPCA of a “specific fund of money” in which it has a proprietary interest.
This Court has identified only a few narrow circumstances in
which public corporations may sue the State for alleged
constitutional violations. One of these exceptions is when the public
corporation seeks to enforce a “proprietary interest in a specific
fund of moneys.” City of New York, 86 N.Y.2d at 291–92. Any
attempt by BPCA to invoke this exception here should be rejected.
As a threshold matter, this Court has questioned the
exception’s legal basis. See County of Rensselaer v. Regan, 80
N.Y.2d 988, 991 (1992) (assuming without deciding that exception
exists). And there are compelling reasons to reject any such
44
exception as applied to public benefit corporations. Legislative
supremacy over public funds is so entrenched that elaboration
“would serve no useful purpose.” People v. Tremaine, 252 N.Y. 27,
38 (1929); see also N.Y. Const. art VII, § 7. And there is no question
that funds held by public benefit corporations qualify as public
funds: by statute, “the profits from” such corporations inure to the
State’s benefit. General Construction Law § 66(4); see also Public
Authorities Law § 1973(6) (confirming State’s residual claim on all
of BPCA’s “rights and properties”). It would thus make little sense
to recognize a public benefit corporation’s right to sue the State to
retain “a specific fund of moneys” that belongs to the State in the
first instance.
In any event, the “specific fund” exception is limited to a
dispute over a specific sum of money to which a public entity had
“legal or equitable title.” County of Albany v. Hooker, 204 N.Y. 1, 16
(1912). The exception thus requires the identification of particular
revenues to which a public corporation is otherwise entitled and
that contested legislation specifically withholds. For example,
County of Rensselaer involved a challenge to a state law rerouting
45
a fixed percentage of local court fines in DWI cases from a specially
created county fund to general budgetary use. See 80 N.Y.2d at
990–91 (assuming without deciding that “specific fund” exception
exists); see also Purcell v. Regan, 126 A.D.2d 849, 850 (3d Dep’t
1987) (regarding Comptroller’s withholding of sums expressly
appropriated to county for public assistance).
No such identifiable fund is at issue here. Rather, BPCA’s
concern is that tort claims filed pursuant to Jimmy Nolan’s Law
will affect the general fund out of which it pays operating expenses
and bond obligations. See Public Authorities Law § 1975. But
BPCA’s general fund has always been subject to tort claims. And
Jimmy Nolan’s Law does not even guarantee any tort recoveries;
rather, it merely removed one bar to tort liability imposed by
preexisting provisions of New York’s Labor Law, in light of BPCA’s
ownership of real property. BPCA thus can identify neither a
specific fund, nor an appropriation of such a fund effected by Jimmy
Nolan’s Law.
Jimmy Nolan’s Law at most has the potential to affect BPCA’s
finances indirectly through diminution of current and future
46
general assets. But this Court has never held that the “specific
fund” exception allows a public entity to challenge a state law
simply because the law may “adversely affect[ ]” the entity’s
finances. City of New York, 86 N.Y.2d at 294–95. To the contrary,
this Court has held that a county could not challenge a state
agency’s decision to close a county jail, even though the closing
placed on county taxpayers an “undue tax burden” to build a new
facility. Matter of County of Cayuga, 4 N.Y.2d at 611. Likewise,
when various school districts objected to the State’s requirement
that they pay tuition for certain students who no longer resided in
the jurisdictions, this Court held that the districts had no
substantive rights they could assert against the State under the
Due Process Clause. Matter of Jeter, 41 N.Y.2d at 286–87. This
Court also held that a statutorily created compensation fund could
not raise a due process challenge to a state procedure that caused
the fund to incur liabilities. Matter of Ruffino, 74 N.Y.2d 861, aff’g
142 A.D.2d at 181; see also Capital Dist. Regional Off-Track Betting
Corp., 65 A.D.2d at 843-44 (public benefit corporation’s assertion
that its “profits will be diminished” by state statute held
47
insufficient to confer standing to challenge statute on state
constitutional grounds). The same logic applies to BPCA in this
case.
2. No other exception allows BPCA to bring the present constitutional challenge.
In the federal courts, BPCA has raised two other exceptions
to the general prohibition on its ability to challenge state laws, but
neither exception applies here.
First, BPCA contends that Jimmy Nolan’s Law impairs its
ability to repay bondholders. As previously explained (see supra at
41), there is no basis for this assertion.9 More fundamentally, a
9 While BPCA has averred that it is “not covered” by insurance
for the revived claims (CA2 Opp. Br. 29, 34), its officer’s November 2014 affidavit states only that “insurers disclaimed coverage” (A. 625)—not that any final determination was made.
BPCA has also invoked doomsday predictions that it would be forced to pay $20 million on each of 170 revived claims at issue in these cases (CA2 Opp. Br. at 33-34), but that figure is a significant exaggeration. For example, in a July 2009 settlement, eighty-two plaintiffs resolved their claims against nearly all defendants for $53,801,796.96, or a per-plaintiff average of $656,119. (A. 670.) The prediction also ignores that BPCA remains free to raise any non-limitations defenses it may have to plaintiffs’ claims and to reduce its liability via contribution or on account of settlement payments already made. See General Obligations Law § 15-108(a).
48
public entity has “no standing to complain” of injury to bondholders
from state action. Matter of Board of Educ. of Union Free School
Dist. No. 1 of Towns of Bethlehem, Coeymans & New Scotland v.
Wilson, 303 N.Y. 107, 115 (1951). Indeed, in Black River Regulating
District, this Court rejected the lower court’s holding that the
authority could contest legislative action that “rendered [it]
helpless to meet [its] contractual obligations” to creditors. 282 A.D.
161, 169–70 (4th Dep’t 1953), rev’d, 307 N.Y. 475. As this Court
held, “issuance of certificates of indebtedness does not confer upon”
public entities “independent status . . . to protect the interests of
creditors.” 307 N.Y. at 489.
Second, this case does not fall under the exception recognized
by this Court in Board of Education of Central School District No.
1 v. Allen, 20 N.Y.2d 109 (1967). Allen is easily distinguished: it
involved a challenge by local school officials to a state law the
administration of which allegedly would cause officials to violate
the First Amendment to the United States Constitution. See 20
N.Y.2d at 114–15 & n.1. BPCA makes no comparable allegation
that compliance with Jimmy Nolan’s Law will force it to violate the
49
rights of others under the Federal or State Constitution—or any
other law.
POINT II
A CLAIM-REVIVAL STATUTE SATISFIES NEW YORK’S DUE PROCESS CLAUSE IF IT HAS A REASONABLE JUSTIFICATION, AS JIMMY NOLAN’S LAW DOES
The answer to the second certified question is that a statute
reviving claims against a public entity satisfies New York’s Due
Process Clause if it is a “reasonable” response to a situation that
“reasonably calls for remedy,” Robinson, 238 N.Y. at 279–80. No
finding of “serious injustice” is required; but if it were, that
requirement would also be amply satisfied here.
In general in this State, “[a] potential litigant has no vested
interest in, or right to, a specific limitations period.” Brothers v.
Florence, 95 N.Y.2d 290, 300 (2000). And the ability to assert a
limitations defense is not entitled to any protection at all under the
federal Due Process Clause. See Chase Sec. Corp., 325 U.S. at 314.
Nonetheless, this Court has recognized that a statute reviving
time-barred claims might infringe a defendant’s due process rights
50
under the State Constitution. See, e.g., Gallewski, 301 N.Y. at 173
(finding it unnecessary “to adopt the broad and unqualified view
that a State may constitutionally revive any personal cause of
action,” while upholding statute under review). Notwithstanding
this ‘“constitutional limitation of doubtful application,’” id. at 175
(quoting Robinson, 238 N.Y. at 280), this Court has never struck
down a statute resurrecting previously time-barred claims. It has
instead repeatedly upheld such statutes where permitting such
claims to go forward would do justice to deserving parties—
including workers who would otherwise be unfairly deprived of
compensation for their injuries.
As the Second Circuit observed, this Court’s precedents have
articulated what appear to be two different standards for upholding
claim-revival statutes. Some decisions have upheld such statutes
when they are a “reasonable” response to a situation that
“reasonably calls for remedy,” Robinson, 238 N.Y. at 279–80. Other
cases have upheld such statutes on the seemingly narrower ground
that they remedy a “serious injustice” or address “exceptional”
circumstances, Gallewski, 301 N.Y. at 174; see also Hymowitz v. Eli
51
Lilly & Co., 73 N.Y.2d 487, 514 (1989) (discussing the two
standards).
This Court has consistently spoken in terms of
“reasonableness” when evaluating statutes reviving claims against
public entities—limiting its invocation of the “serious injustice”
standard to cases involving private defendants. See infra at 52–55.
There is good reason for the distinction: the Legislature’s plenary
control over public entities and the public interests they serve
warrant an especially deferential standard for reviewing legislative
action in this area.
In any event, even if a “serious injustice” and exceptional
circumstances were required, Jimmy Nolan’s Law still would be
constitutional because it provided a much-needed remedy for
workers injured as a result of their heroic efforts in rebuilding New
York City after an unprecedented terrorist attack. This Court thus
“need not light upon a precise test here . . . because the
Legislature’s revival of [post-9/11 cleanup workers’] claims meets
the highest standard.” Hymowitz, 73 N.Y.2d at 514.
52
A. A “Reasonableness” Standard Applies to the Revival of Claims Against Public Corporations.
Jimmy Nolan’s Law is specifically targeted at reviving claims
against state-created “public corporation[s]” alone. General
Municipal Law § 50-i(4)(a) (emphasis added). This Court has never
applied a standard stricter than reasonableness in evaluating the
constitutionality of claim-revival statutes involving public entities.
To the contrary, this Court has recognized that revival statutes
involving claims against public entities require, at most, “an
adequate moral obligation as the basis for retroactively remedying
the particular restrictions.” Ruotolo, 83 N.Y.2d at 253; see also
Jackson v. State of New York, 261 N.Y. 134, 138 (1933) (statutes
creating rights and remedies “based upon moral obligations of the
State or its subdivisions” have never been “successfully assailed” on
the basis that they were “enacted after the event”).10 Where this
deferential standard is met, the Legislature may “legalize and
10 To be sure, many of these cases recognize that a public
entity may not challenge state laws on constitutional grounds. See Ruotolo, 83 N.Y.2d at 260-61; Jackson, 261 N.Y. at 139. However, insofar as they suggest that any due process standard applies at all, they indicate that reasonableness is the most that is required.
53
validate” a claim against the State or one of its public corporations
even when that claim was previously “declared invalid by the
judicial tribunals.” Wrought Iron Bridge Co. of Canton, Stark
County, Ohio v. Town of Attica, 119 N.Y. 204, 211 (1890).
Thus, this Court in Ruotolo upheld the legislative revival of
claims of injured workers (specifically, police officers) that were
time-barred or had been litigated to adverse judgment. See 83
N.Y.2d at 254–55, 257–58. The statute in question expressly
“revived” such actions notwithstanding any law “that a notice of
claim be filed or presented.” General Municipal Law § 205-e(2).11
And the Appellate Division has upheld legislation allowing service
of a notice of claim on a public corporation seventeen years after
accrual, requiring only a “clear expression” by the Legislature of
11 While the defendant in Ruotolo was the State itself, the
statute at issue there covered public corporations and was subsequently applied to a suit against New York City. See Schiavone v. City of New York, 92 N.Y.2d 308, 311 (1998) (construing statute “to provide a broad revival remedy” in accord with its “legislative purpose” and “plain language”); see also Turner v. New York City Transit Auth., 257 A.D.2d 421, 421 (1st Dep’t 1999) (holding notice-of-claim requirement excused as against public benefit corporation).
54
intent “to revive plaintiff’s time-barred claim.” Negron v. City of
New York, 163 A.D.2d 198, 198 (1st Dep’t 1990).
Such judicial deference to legislation reviving claims against
the State and its public corporations makes sense. It properly
reflects the State’s own authority to “pass retrospective laws
waiving or impairing its own rights, or those of its instrumental
subdivisions.”12 Santangelo v. State of New York, 193 A.D.2d 25, 32
(2d Dep’t 1993) (quotation marks omitted) (canvassing authority).
Thus, just as the State may freely alter or waive its own defenses
to tort liability, so it may do the same with respect to public entities
over which it exercises plenary control—including public benefit
corporations that are, as BPCA describes itself, “an instrumentality
of New York State.” (Decl. of Jeffrey P. Laner ¶ 3 (declaration by
BPCA’s Associate General Counsel), No. 21-MC-102 (S.D.N.Y. May
26, 2009), ECF No. 3267-2.)
12 The relevant decisions also uniformly recognize “that as to
such a retroactive statute the state cannot be heard to complain on constitutional grounds.” Jackson, 261 N.Y. at 139; see Ruotolo, 83 N.Y.2d at 259–61; Santangelo, 193 A.D.2d at 30.
55
Judicial deference here is further justified by the public
interests served by public benefit corporations and the absence of
countervailing private interests. As previously explained, public
benefit corporations serve essentially governmental purposes solely
for the benefit of the public. Such entities may exercise only those
powers that the State gives them, and only for those purposes that
the State directs. They have no private interests of their own, nor
do they have private shareholders or members whose interests
must be weighed against the public interest in any due process
balancing. There is thus no reason to apply any stricter standard
than reasonableness to the Legislature’s treatment of public
entities.
The district court applied a more stringent standard to
evaluate Jimmy Nolan’s Law based on language in Gallewski that
the claim-revival statute there was justified because it remedied a
“serious injustice” and dealt with “exceptional” circumstances, 301
N.Y. at 174. (See A. 786.) But Gallewski involved only private
defendants, not public entities. And in any event, Gallewski
expressly declined to hold that this standard was the due process
56
test applicable to all revival statutes, as opposed to a description of
the case-specific circumstances that justified upholding the statute
at issue there. See id. at 173. Indeed, certain passages in Gallewski
suggest that this Court viewed reasonableness as all that was
actually required; for instance, it referred to the Legislature’s
remedy as “‘reasonable’” and in “accord with elementary notions of
justice and fairness,” language that both echoes Robinson and
mirrors the reasonableness test that applies in other retroactivity
contexts. Id. at 175 (quoting Robinson, 238 N.Y. at 380); cf. Matter
of Chrysler Props., Inc. v. Morris, 23 N.Y.2d 515, 519, 522 (1969)
(due process required “discernible reason” and “showing of the
public interest” to reopen administrative determinations for
review); see also Brothers, 95 N.Y.2d at 300 (for statutes that
shorten limitations periods, due process requires reasonable
opportunity to assert already-accrued claims).
Reasonableness review ensures that removal of a limitations
bar promotes a cognizable public purpose in favor of worthy
potential claimants and accounts for “the various policy
considerations upon which the constitutionality of retroactive
57
legislation depends.” Matter of Hodes v. Axelrod, 70 N.Y.2d 364, 371
(1987). No more is required here.
B. Jimmy Nolan’s Law Was a Reasonable Response to a Situation Calling for a Remedy.
Jimmy Nolan’s Law easily qualifies as a reasonable response
to a situation calling for a remedy. This Court has repeatedly
upheld statutes reviving the legal claims of injured workers and
individuals harmed by the latent effects of toxic substances. For
instance, in Matter of McCann v. Walsh Construction Co., this Court
confirmed the Legislature’s ability to aid injured workers by
removing a timeliness bar to legal claims arising from illnesses of
“a slow-starting or insidious nature.” 282 A.D. 444, 446 (3d Dep’t
1953), aff’d, 306 N.Y. 904 (1954). The plaintiff in Matter of McCann
suffered from caisson disease, caused by exposure to compressed
air. See id. at 445–47. Because the existing limitations period could
lapse while such a worker remained “ignoran[t] of the nature of the
disease,” the Legislature extended the period to allow for filing
upon knowledge of the disease’s origin. Id. at 446–47. The New York
courts upheld this “classic” revival statute on the ground that its
58
validity was supported by “a strong moral obligation” to provide
relief to injured workers. Id. at 450 (quotation marks omitted); see
also Hymowitz, 73 N.Y.2d at 515 (upholding statute reviving tort
claims arising from latent injuries caused by toxic pharmaceutical).
Jimmy Nolan’s Law likewise satisfies a moral obligation to
injured workers and constitutes a reasonable response to a
situation calling for a remedy. The statute temporarily removed a
procedural obstacle to a subset of tort claims by post-9/11 cleanup
workers. The Legislature’s finding that denying a remedy to such
workers would promote injustice is entitled to deference. See, e.g.,
Hotel Dorset Co. v. Trust for Cultural Resources of City of N.Y., 46
N.Y.2d 358, 370 (1978) (courts presume that the Legislature “found
facts necessary to support the legislation” and “a situation showing
or indicating its need or desirability”).
As the Legislature found, many workers (including Jimmy
Nolan himself) toiled selflessly at the World Trade Center disaster
site “for extensive periods of time” following September 11, 2001.
Sponsor’s Mem., in Bill Jacket for ch. 440, supra, at 6. There,
workers faced contaminants—including “caustic dust,” harmful
59
“products of combustion,” and other “carcinogens”—that inflicted
“disabling respiratory illnesses and other injuries at rates that
greatly exceed those of the general population.” Id. Through no
fault of their own, such workers could easily fail to appreciate the
nature of their injuries—much less “the causal connection between
their injuries and their exposure”—within the fleeting ninety-day
period to file a notice of claim against public corporations. Id.
In fact, as the legislative history explains, false assurances of
workplace safety contributed to workers’ failure to file timely
notices of claim. See id. The Sponsor’s Memorandum cites as a
justification for the law that the “brave men and women” benefited
by the statute “were advised and reassured that they were working
in safe environments.” Id. In addition, it was widely known by 2009
that injured post-9/11 cleanup workers had received dubious
information about the safety of Ground Zero and nearby sites. See,
e.g., Lombardi v. Whitman, 485 F.3d 73, 76–77 (2d Cir. 2007) (post-
9/11 press releases “reiterated the message that testing and
sampling done near the site indicated no significant health risk”).
Indeed, some of this very litigation has included claims based on
60
worksite safety misrepresentations. See, e.g., In re World Trade
Ctr., 44 F. Supp. 3d at 431. It would be understandable for a worker
who had received false assurances of safety to conclude that
symptoms of a slow developing respiratory condition were not
serious or were the result of some cause other than a hazardous
workplace.
The Legislature thus acted well within its constitutional
authority in taking corrective action to respond to this troubling
situation. And it did so in a reasonable manner by simply restoring
parity between public and private defendants. Jimmy Nolan’s Law
effectively forgave plaintiffs’ failure to serve notices of claim within
the ninety-day period after onset of respiratory symptoms—thus
exempting them from the harsh consequences of a procedural rule
applicable only to public entities. (See A. 412–427.) That forgiveness
was warranted because, as the Legislature observed, many injured
workers “were unaware of the applicable time limitations,” and
would be unfairly deprived of a remedy based on this technicality.
Sponsor’s Mem., in Bill Jacket for ch. 440, supra, at 6; see Teresta
v. City of New York, 304 N.Y. 440, 443 (1952) (recognizing that
61
notice-of-claim requirements are not intended to be “a trap to catch
the unwary” (quotation marks omitted)).
Easing this procedural restriction for injured post-9/11
cleanup workers thus fulfills “a strong moral obligation” to those
individuals, who engaged in heroic efforts under extraordinarily
difficult circumstances to restore New York City after a devastating
terrorist attack. Matter of McCann, 282 A.D. at 450; cf. Ruotolo, 83
N.Y.2d at 253. Allowing such workers to obtain recovery for their
serious injuries also signals to future workers “that their needs will
not be forgotten,” thus “encourag[ing] individuals to respond to any
future catastrophic events as heroically as our 9/11 responders.”
Ltr. from Donlon, in Bill Jacket for ch. 440, supra, at 15–16.
Public entities, including BPCA, were not unfairly prejudiced
by Jimmy Nolan’s Law. A notice-of-claim requirement “is designed
to afford the [public entity] opportunity to make an early
investigation of the claim.” Adkins v. City of New York, 43 N.Y.2d
346, 350 (1977). Here, the earliest suits by post-9/11 responders—
including several that complied with the ninety-day notice-of-claim
requirement—had already placed BPCA on notice of its potential
62
liability and of the need to preserve evidence relevant to such
claims. Jimmy Nolan’s Law consequently did not impede BPCA’s
ability to make a timely investigation into matters giving rise to
plaintiffs’ claims. See In re Agent Orange Prod. Liab. Litig., 597 F.
Supp. 740, 813 (E.D.N.Y. 1984) (permitting revival where “equities”
to defendants were “not endangered”).
C. Jimmy Nolan’s Law Also Remedied a Serious Injustice to Injured Workers in Exceptional Circumstances.
Jimmy Nolan’s Law passes muster even under the “serious
injustice” or “exceptional circumstances” standard the district court
mistakenly thought was required. The circumstances prompting
Jimmy Nolan’s Law included: (i) the unprecedented terrorist
attacks of September 11, 2001, which blanketed Lower Manhattan
in toxic soot; (ii) the array of slow-developing illnesses experienced
by cleanup workers in their efforts to get the State’s (and the
Nation’s) leading financial center up and running again; (iii) the
false safety assurances and inadequate safety instructions and
equipment that many workers received; (iv) an existing
requirement, of which many individuals were unaware, allowing
63
public (but not private) defendants to avoid liability recovery unless
workers served a notice of claim within ninety days of first
developing symptoms; and (v) the resulting injustice to innocent
injured workers whose claims against public corporations could
easily be barred because they did not immediately appreciate the
extent of their illnesses or connect those symptoms to their post-
9/11 work.
The Legislature reasonably found that this combination of
exceptional circumstances posed a serious injustice. It reasonably
offered the modest relief of reviving for one year injured workers’
time-barred claims against its public corporations, which are
subject to ongoing legislative control. And the Legislature
reasonably concluded that this measure would both protect
individuals who performed crucial recovery work after “an
upheaval of unparalleled magnitude,” Gallewski, 301 N.Y. at 174,
and send a “strong message” to potential “future responders that
their needs will not be forgotten,” Ltr. from Donlon, in Bill Jacket
for ch. 440, supra, at 15.
64
D. There Are No Legitimate Grounds for Invalidating Jimmy Nolan’s Law on State Due Process Grounds.
The reasons given by the district court for invalidating Jimmy
Nolan’s Law under New York’s Due Process Clause are all
unavailing.
First, the district court observed that plaintiffs could not
complain about any injustice from the late discovery of their
injuries because New York has now adopted the “discovery rule” of
C.P.L.R. 214-c, under which the applicable limitations period does
not begin to run until the plaintiff discovers, or reasonably should
be able to discover, an injury. (A. 789–790.) But the Legislature was
well aware of C.P.L.R. 214-c when it enacted Jimmy Nolan’s Law,
see Sponsor’s Mem., in Bill Jacket for ch. 440, supra, at 6–7
(referencing provision), and it justifiably concluded that the
existing discovery-accrual rule was not sufficient to eliminate
injustice in these circumstances.
The illnesses for which plaintiffs seek relief here include a
variety of conditions—for example, lung disease, asthma, rhinitis,
laryngitis, obstructive sleep apnea, sinusitis, gastric reflux, and
65
bronchitis. (See A. 95–96, 153–154, 213–215.) For different workers,
the alleged diseases emerged at different times, developed at
different rates, and manifested different symptoms. Yet existing
law required workers to serve a separate notice of claim within
ninety days of the onset of symptoms for each distinct illness—even
if the worker was not aware, and had no reason to be aware, of the
source of his or her injury. See Matter of New York County DES
Litig., 89 N.Y.2d 506, 514–15 (1997). Thus, more than ninety days
easily could pass before a post-9/11 responder appreciated that
respiratory symptoms were, in fact, a work-related illness arising
from cleanup work.
These circumstances are at least as compelling as those
presented in Matter of McCann. That case, like this one, involved a
claim-revival statute that benefited plaintiffs who were already
protected by a discovery rule. At issue in Matter of McCann were
two revival statutes, both for the benefit of workers suffering from
the “slow-starting or insidious” diseases caused by compressed air.
282 A.D.2d at 446. Initially, the Legislature eliminated a
requirement that the worker have contracted the disease within
66
twelve months prior to becoming ill—essentially a one-year
limitations period, running from exposure. See id. But removal of
the exposure rule did not bar the Legislature from further relaxing
timeliness requirements in favor of workers who, while
experiencing symptoms, remained “ignoran[t]” of the symptoms’
source. Id. at 447. The Legislature thus permitted workers to file
claims once they became aware of the link between “the disease
from which [they] suffered” to “the nature of [their] employment.”
Id. (quotation marks omitted). The court held this situation to be “a
classic instance of the granting of legislative relief in a situation
where the arbitrary application of the Statute of Limitations would
work injustice.” Id. at 450. The same is true of Jimmy Nolan’s
Law.13
13 There is also no merit to the district court’s further
suggestion (see A. 789–790) that C.P.L.R. 214-c(4) provided relief for injured workers who had difficulty promptly identifying a “causal connection” between a toxin and a latent illness. That provision affords extra time to bring a claim only if “technical, scientific or medical knowledge and information sufficient to ascertain the cause” of the injury did not previously exist. The problem here, however, was not a lack of knowledge in the medical community of the effects of exposure to toxic dust, but rather the
67
Second, the district court reasoned that “those who wished to
sue were not barred from doing so,” since approximately 850
lawsuits involving post-9/11 cleanup work were timely filed and
there was “substantial publicity about the cases.” (A. 790.) But
other plaintiffs’ ability to sue private defendants is no answer to
these plaintiffs’ attempt to sue public corporations such as BPCA,
which are subject to distinct notice-of-claim requirements and other
procedural rules. (See A. 408–427.) And while some plaintiffs were
able to comply with the notice-of-claim requirement in suits against
BPCA, all that fact shows is that some workers were able to
apprehend the nature and source of their injuries more promptly
than others. That fact alone does not disable the Legislature from
providing much-needed relief to other workers subject to different
circumstances—such as misrepresentations about the safety of
post-9/11 cleanup work.
fact that many workers “did not immediately recognize the causal connection between” their own illnesses and working conditions. Sponsor’s Mem., in Bill Jacket for ch. 440, supra, at 6. C.P.L.R. 214-c(4) simply does not address that distinct problem.
68
Indeed, if anything, the fact that BPCA was already facing
timely claims from injured workers even before the existence of
Jimmy Nolan’s Law undercuts its assertion of unfair prejudice.
Because these other plaintiffs’ claims presented similar theories of
liability, BPCA was not prejudiced in its ability to defend against
plaintiffs’ claims on the merits. Rather, BPCA already knew that it
“would be litigating these issues at some point against some
plaintiffs,” meaning “[t]he equities protected by the enforcement of
statutory limitations are not endangered.” In re Agent Orange Prod.
Liab. Litig., 597 F. Supp. at 813 (upholding statute reviving toxic
tort claims under analogous circumstances).
Third, the district court noted that plaintiffs “have not
shown . . . that they failed ‘to recognize a causal connection’ or were
‘unaware of the applicable time limitations.’” (A. 791.) But plaintiffs
need not make these additional showings on an individualized basis
to support the constitutionality of Jimmy Nolan’s Law. This Court
presumes “that the Legislature has investigated and found facts
necessary to support” a legislative measure, “as well as the
existence of a situation showing or indicating its need.” Hotel Dorset
69
Co., 46 N.Y.2d at 370. And the present record provides no basis to
depart from that presumption; to the contrary, the legislative
history of Jimmy Nolan’s Law reinforces the reasonableness of the
Legislature’s conclusions. As explained above (see supra 58–60, 62–
63), numerous circumstances supported reviving the claims of
injured post-9/11 cleanup workers against public defendants,
including the requirement to file a notice of claim within just ninety
days; the slow-developing nature of the workers’ illnesses; and the
difficulty of recognizing the nature of those illnesses and their
causal connection to 9/11 cleanup work—problems exacerbated by
the false assurances of workplace safety that were widely
disseminated in the wake of 9/11.
Furthermore, even if some plaintiffs were aware of the short
limitations period or timely connected their injuries to work, “the
Legislature properly determined that it would be more fair for all
plaintiffs to uniformly now have one year to bring their actions.”
Hymowitz, 73 N.Y.2d at 515. And the Legislature could (and did)
reasonably conclude that injured workers did not already have an
adequate remedy because they could have sought permission to
70
serve late notices of claim within the outer limitations period for
bringing suit against BPCA. An application for discretionary leave
to file a late notice of claim was at best an imperfect remedy. See,
e.g., Matter of Felder v. City of New York, 53 A.D.3d 401, 402–03
(1st Dep’t 2008) (denying workers’ requests to serve late notices of
claim on City for alleged post-9/11 respiratory injuries); Goffredo v.
City of New York, 33 A.D.3d 346, 347 (1st Dep’t 2006) (same).
Indeed, BPCA successfully opposed such applications on the basis
that BPCA lacked prompt “knowledge of the essential facts
constituting the claim,” General Municipal Law § 50-e(5), because
it did not control cleanup operations, hire workers, or know their
identities (A. 331). Those bases would apply no matter how
diligently an injured worker pursued his or her claims, making the
prospect of a successful late-claim application more illusory than
real.
* * *
In sum, the circumstances prompting Jimmy Nolan’s Law
were extraordinary: the Legislature acted to ensure full
compensation for individuals who responded to an unprecedented
71
catastrophe and who were consequently exposed to toxic substances
despite assurances that their worksites were safe. Furnishing a
remedy to such workers is a matter both of meeting a moral
obligation and of assuring future emergency responders that they
will be able to seek reimbursement for any injuries. The Legislature
thus not only provided a reasonable response to a situation in need
of a remedy, it cured a serious injustice brought on by the
exceptional circumstances of the terrorist attacks of September 11,
2001, and their aftermath. The Legislature did not violate New
York’s Due Process Clause, under any standard, when it vindicated
these important interests.
72
CONCLUSION
For all of these reasons, this Court should answer the certified
questions as set forth above.
Dated: New York, NY June 16, 2017
BARBARA D. UNDERWOOD Solicitor General STEVEN C. WU Deputy Solicitor General ANDREW W. AMEND Senior Assistant Solicitor General
Respectfully submitted, ERIC T. SCHNEIDERMAN Attorney General State of New York Attorney for State Appellant
By:__________________________ .
ANDREW W. AMEND Senior Assistant Solicitor General
120 Broadway, 25th Floor New York, NY 10271 (212) 416-8022
Reproduced on Recycled Paper
AFFIRMATION OF COMPLIANCE Pursuant to the Rules of Practice of the New York Court of Appeals (22 N.Y.C.R.R.) § 500.13(c)(1), Andrew W. Amend, an attorney in the Office of the Attorney General of the State of New York, hereby affirms that according to the word count feature of the word processing program used to prepare this brief, the brief contains 13,181 words, which complies with the limitations stated in § 500.13(c)(1).
______________________________ Andrew W. Amend
ADDENDUM
CHAPTER_Lf40...L-.f.-..,.:;..__
LAWS OF 20 a!l-
SENATE BILL_---- ASSEMBLY BILL 7/ Z Z C
STATE OF NEW YORK
7122--CR. R. 319
2009-2010 Regular Sessions
IN ASSEMBLYMarch 20, 2009
Introduced by M. of A. SPANO, BING, KAVANAGH, BENEDETTO, PHEFFER,DenDEKKER, GABRYSZAK, MILLMAN, JAFFEE, DINOWITZ, ROSENTHAL, O'DONNELL
Multi-Sponsored by M.. of A. COLTON, CONTE, EDDINGTON, GALEF,GORDON, HYER-SPENCER, McKEVITT, MENG, MOLINARO, RAIA, SWEENEY, THIELE,TOBACCO, WALKER, WEISENBERG -- re~d once and referred to the Committeeon Judiciary -- committee discharged, bill amended, ordered reprintedas amended and recommitted to said committee -- reported and referredto the Committee on Rules -- Rules Committee discharged, bill amended,ordered reprinted as amended and recommitted to the Committee on Rules-- amended on the special order of third reading, ordered reprinted asamended, retaining its place on the special order of third reading
AN ACT to amend the general municipal law, in relation to extending thetime to file a claim against a pUblic corporation for injuries
partic;ipCited in the Trade Center
S 3 3Z s - is ~iUJ.;;;;j- (J~~ins
DATERECEIVED BY GOVERNOR:.SEP 0It 2009
ACTION MUST BE TAKEN BY:SEP 16 2009
DATE GOVERNOR'S A!..CTIONOTAKE.. N:SEP 16 2 O~,··
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SENATE VOTE S!l Y '-CL N
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Page 1 of2
A7122-C Spano (MS) Same as S 3325-B STEWART-COUSINSQ7/1(jiQ9 A7122-C Senate Vote061?2/09 A7122-C Assembly Vote
Aye: 57 Nay: 0Yes: 121 No: 0
GoJo'I'opofPage07116/09 A7122-CAye AdamsAye BonacicAye DilanAye Flanagan
Aye Griffo
Aye Johnson CExc KrugerAye LeibellAye MaziarzAye MorahanAyePadavanAye RobachAye SchneidermanAye SmithAye Stewart-CousinsAye Winner
Senate Vote Aye: 57Aye AddabboAye BreslinAye DuaneExc Foley
Aye Hannon
Exc Johnson 0Aye LanzaAye LibousAye McDonaldAye NozzolioAye ParkerAye SalandAye SerranoExc SquadronAye ThompsonAye Young
Nay: 0Ay«;~ AlesiAy«;~ DeFranciscoAy«;:EspadaAy«;: Fuschillo
AHassell
y«;''Thompson
Ay«;:KleinAye LarkinAy«;: LittleAy«;: MonserrateAye OnoratoAy«;: PerkinsAy«;: SampsonAy«;: SewardAye StachowskiAye Valesky
Aye AubertineExc DiazAye FarleyAye Golden
Aye Huntley
Aye KruegerAye LaValleAye MarcellinoAye MontgomeryAye OppenheimerAye RanzenhoferAye SavinoAye SkelosAye StaviskyAye Volker
Yes AmedoreYes BallYes BenedettoYes BoyleYes Brook-KrasnyYes CalhounYes CastroYes ConteYes CrouchYes DenDekkerER EddingtonYes FarrellYes GabryszakYes GibsonYes GottfriedYes HeastieYes HoytYes JeffriesYes KellnerYes LatimerYes LopezPYes MagnarelliYes McDonoughYes Miller
Yes: 121 No: 0Yes AlfanoYes BacallesER BarronER BoylandYes BrodskyYes CahillER CarrozzaYes ColtonYes CrespoYes DelMonteYes DupreyYes EspaillatYes FitzpatrickYes GianarisYes GordonYes HayesYes HooperYes JaffeeYes KavanaghYes LancmanYes LiftonYes MageeER MayersohnER Meng
Assembly VoteER AlessiYes AubryYes BarraYes BingYes BrennanYes ButlerYes CanestrariER ClarkYes CorwinYes CymbrowitzER DinowitzYes ErrigoYes FinchER GanttYes GlickYes HawleyYes HikindYes JacobsYes JordanYes KoonYes LentolYes LupardoER MarkeyYes McKevitt
GoJoToPQfP~tg~
06122/09 A7122-CER AbbateYes ArroyoYes BarclayYes BenjaminYes BradleyER BurlingER CamaraYes ChristensenYes CookYes CusickYes DestitoYes EnglebrightYes FieldsYes GalefYes GiglioYes Gunther AER HevesiYes Hyer-SpencerYes JohnYes KolbER LavineER Lopez VYes MaiselYes McEneny
http://nyslrs.state.ny.usINYSLBDCllbstfrme.cgi 7/27/2009---- .. ----_._-~--~-----
Yes MillmanYes OaksYes ParmentER PerryYes QuinnYes ReilichYes Rivera PER SaladinoYes SchimmingerYes SkartadosYes TediscoYes TobaccoYes WeinsteinYes Zebrowski K
Yes MolinaroER O'DonnellYes PaulinYes PhefferYes RabbittYes ReillyYes RobinsonYes SaywardYes SchroederYes SpanoYes ThieleER TownsYes WeisenbergYes Mr. Speaker
ER MorelleYes O'MaraER PeoplesER PowellYes RaiaYes RiveraJYes RosenthalYes ScarboroughYes ScozzafavaYes StirpeYes TitoneYes TownsendER Weprin
ER NolanYes OrtizYes PeraltaYes PretlowER RamosER RiveraNYes RussellYes SchimelER SeminerioYes SweeneyYes TitusYes WalkerYes Wright
Page 2 of2
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0000 7/27/2009
CHAIr.!Leglslallve Commission on
r!hie Subl;!ances and Ha~ardollSWaslea
COMMITTEESlnsufanc",
R"cinll and WagellllQRules
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TASK FOflCESPuerto I"llcanlHlSp;lnie T..~k Fo~e
OF,II'ICISOF
NEW yORK STATEASSEMBLYMAN
MIKE SPANO93>l~ ,DISTRICi
July 28, 2009
DIS'I"AleT OFFICE35 east Gras&y Sprain Road. Wi'll! 4068
Yonkers, NflwYork 10710914-719-8805 ;
FAX 914-TID-a8SIl
ALBANY OFFICEAoom 454', Legi8Ia~~ Olilee Building
AIOOI'lY, NawYorlr 12Z41l51 tl-4iS!:l-Jti62 '
FAX 51'8-455-5499
E-MAILspanOm@BBllElmbly,stals,nv·us
Governor David PatersonExecutive ChambersState CapitolAlbany, NY 12224
De"GOV~'\>'19 , , , '
, I am writing On behalf of A 7122·C/S3 325-B which recently unanimously passed in eachhouse of the Legislature. This legislation would extend the time that workers can file acompensation claim due to injuries suffered as a result of participating in the World Trade Centerrescue, r~covel'Y or cte~upoperations '
Countless heroes risked their lives to help their fellow citizens dllring the attacks on theWorld Trade, Center, and many continued to provide assistance at the sitt: for several years afterthe tragedy occurred. These brave individuals did not qUr;lstion the safety ofthe site and manyhave fallen ill as a result oftheir efforts.
The bill allows all additional one-year period for t=Jigible workers to file a claim toreceive workers; compensation, Under current law, a worker has only ,90 days to tile a claim, butnumerous "second wave" 9/tl victims-those who wenil affected by the hazardous dust anddebris in the aftermath of the, anacks- showed symptoms long after the 90-day time restriction,
A7122·C/S332S-B is named after second wave 9J] 1 victim Jimmy Nolan, a carpenterfrom Yonkers and father of three, who worked at Ground Zero and slept at the site for threeweeks. He nOw suffers from respiratory problems and allergies that require him to spendhundreds of dollars in additional costs per month on medication which his insurance dot:s notpick up.
The least New York State can do is provide these heroes with adequate financial supportto help them manage their health issues. Therefore, I am respectfully requesting that you lookfavorably' at A7122-C/S332S-B when it comes before you for consideration.
Thank you in advance for your time and courtesy.
~trtou~,
MIKE SPANOState Assemblyman
Z13/G0 39'V'd ON'V'dS i-l N'V'WAI8W3SS~1 59886LL t> IE. 9t>:E;1 -60G2:/82:/L,13
RETRIEVE
NEW YORK STATE ASSEMBLYMEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
BILL_NUMBER: A7l22C
SPONSOR: Spano (MS)
TITLE OF BILL: An act to amend the general municipal law, in relationto extending the time to file a claim against a public corporation forinjuries sustained by persons who participated in the World Trade Centerrescue, recovery or cleanup operations
PURPOSE OF BILL: To revive those causes of action for damages againstpublic corporations for injuries suffered as a result of public corporations for injuries suffered as a result of participation in the WorldTrade Center rescue, recovery, or clean-up operations that are currentlytime-barred because the applicable period of limitation has expired.
SUMMARY OF PROVISIONS: Section one is the short title, "Jimmy Nol.an' sLaw". Sectibn two, Subdivision 1 of section 50-i of the general municipal law is amended by adding a new subdivision 4 Section three is animmediate effective date.
JUSTIFICATION: We all know that thousands of men and women lost theirlives on September 11, 2001 in the World Trade Center tragedy. In theaftermath, tens 6f thousands of individuals worked at the World TradeCenter Site, as well as locations related to debris removal and recoveryof remains, for extensive periods of time. These brave men and womenwere advised and reassured that they were working in safe environments.Among other hazards, we know now that they suffered exposure to manytypes of contaminants, including caustic dust, toxic products ofcombustion and carcinogens. More than seven years later, thousands ofWorld Trade Center workers have developed disabling respiratoryillnesses and other injuries at rates that greatly exceed those of thegeneral population.A number of these affected workers are currently barred from filing aclaim against the state or commencing an action against a public corporation for these injuries because the applicable period of limitationhas expired. These individuals should not be denied their rights to seekjust compensation simply because they were provided incorrect information about their work conditions, did not immediately recognize thecausal connection between their injuries and their exposure, or wereunaware of the applicable time limitations. This legislation wouldrevive the otherwise time-barred causes of action of these heroes, bypermitting them to file a claim against the state within one year of theeffective date of this bill, and to commence an action against a publiccorporation within the same one-year period without the necessity offirst filing a notice of claim. With respect to those workers who havenot yet been diagnosed with an injury due to the latent effects of theirexposure, their rights to file a claim or action in the future, in theevent they do develop an exposure-related illness, remain preservedunder CPLR § 2l4-c{1}.
LEGISLATIVE HISTORY:
..",-...
http://nyslrs.state.ny.usINYSLBDCllbstfrme.cgi
Page 3 of4
7117/2009
-------- ------
RETRlEVE
2008: S.2l76 - 3rd Reading Calendar/A.3947 - Passed Assembly2007: S.2l76 - 3rd Reading Calendar/A.3947 - 3rd Reading Calendar2006: S.8508 - Referred to Rules.
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: Unknown.
EFFECTIVE DATE: Immediately.{l) Under CPLR 2I4-c, "... a claim or action for personal injury ... causedby the late~t effects of exposure to any substance ... shall be deemed tohave accrued on the date of discovery of the injury by the plaintiff oron the date when through the exercise of reasonable diligence the injuryshould have been discovered, whichever is earlier."
Page 4 of4
http://nyslrs.state.ny.uslNYSLBDC l/bstfrme.cgi 000001 7/17/2009
DIVISION OF THE BUDGET BILL MEMORANDUM
Session Year 2009
SENATE:No.
Primary Sponsor:
Law: General Municipal Law Sections: Art. 4, §50 (i)
ASSEMBLY:No. A7122-C
Division of the Budget recommendation on the above bill
APPROVE:
1. Subject and Purpose:
VETO: X NO OBJECTION:
Effective immediately, this bill amends the General Municipal Law, Art. 4, section 50 (i)to revive the causes of action for damages, that are currently barred by the statute oflimitations, against a public corporation for injuries sustained by persons whoparticipated in the World Trade Center rescue, recovery or cleanup operations, andprovides for the filing of such claims within one year of the effective date of this bill.
2. Summary of Provisions:
Section one of the bill establishes its short title as "Jimmy Nolan's Law".
Section two of the bill amends the General Municipal Law, Art. 4, section 50 (i), byadding a new subdivision 4, which revives the causes of claims associated with theWorld Trade Center search and rescue opE3rations and extends the filing of such claimsagainst a public corporation for a period of one year after the effective date of this bill.This amendment also defines the terms "participant in World Trade Center rescue,recovery or clean-up operations", and the "World Trade Center Site."
Section three of this bill provides for its immediate effective date.
3. Legislative History:
In 2006, Senate bill S8508, "Jimmy Nolan's Law," was referred to the Rules Committee.
In 2007, Senate bill S2176 was advanced to third reading calendar and passed the Assemblyin 2008.
4. Arguments in Support:
Validation: Document 10: 50581561-12Robert L. Megna, Director of the BudgetBy Robert E. BrondiDate: 9/1412009 6:23:00 PM
A number of workers affected by exposure to hazardous substances at the World TradeCenter site are currently barred from filing a claim or commencing an action against apublic corporation for these injuries because the applicable period to commence suchaction or a special proceeding has expired under the General Municipal Law. Arguably,these individuals should not be denied their rights to seek compensation simplybecause they did not immediately recognize the causal connection between theirinjuries and their exposure, or were unawalre of the applicable time limitations.
This legislation would revive the otherwise time-barred causes of action for theseworkers, by permitting them to file a claim against a municipality within one year of theeffective date of this bill, and to commence an action against a public corporation withinthe same one-year period without the necessity of first filing a notice of claim.
The rights to file a claim or action in the future for workers who have not yet beendiagnosed with an injury due to the latent effects of their exposure, in the event they dodevelop an exposure-related illness, remain preserved under New York State CivilPractices Laws and Rules (CPLR) § 214-c{1}.
5. Arguments in Opposition:
New York State Civil Practice Laws and Rules, Art. 2, section 214 (3) and General MunicipalLaw Sections 50-i and 50-e provide that a person or persons believe they have been harmedare allowed ninety days, and with the court's permission, a year and 'ninety days, from the date~
on which their injury is discovered to file a notice of claim against a public corporation. Thisstatute of limitation encourages due diligence from a person or persons who believe they havebeen harmed by a municipal corporation. This bill may dilute the concept of due diligenceprovided for in the CPLR, and promote delay in the filing of lawsuits.
It can be argued that this bill vastly expands New York City's liability above and beyondreserve funds set aside by the city and the federal government to compensate victims of theWorld Trade Center clean-up operations.
It can also be argued that this bill would facilitate fraudulent claims and there is currentlycomprehensive legislation in place to properly address legitimate claims related to the WorldTrade Center clean-up operations.
6. Other State Agencies Interested:
None.
7. Other Interested Groups:
The City of New York strongly opposes this bill.
The 911 Worker Protection Task Force has taken no position on this bill.
Other municipalities that dispatched volunteers to the World Trade Center clean-up effort.
Validation: Document 10: 50581561-12Rpbert LMegna, Director of the BudgetBy Robert E, BrondiDate: 8/1412008 6:23:00 PM
000J09,.j,' •
Contractors or sub-contractors hired by the City of New York to work at the site.
8. Budget Implications:
None to the State Financial Plan.
A significant fund was established and exists to compensate victims of the World Trade Centerclean-up operations. The City and its contractors would like to manage the liability fromclaimants within existing fund resources. However, lawyers for the plaintiffs in these casesargue that the fund is woefully insufficient to cover the potential liability. This legislation wouldgreatly increase - if not guarantee - the likelihood that the fund is insufficient. Thus, the Citycould face hundreds of millions of dollars in liability which could be seen as an unfundedmandate.
9. Recommendation:
Effective immediately, this bill would extend by one year the period during which thepresentation of tort claims against a public corporation for injuries sustained by persons whoparticipated in the World Trade Center rescue, recovery or cleanup operations can be made.
The CPLR provides some relief to claimants against a public benefit corporation. Individualswho have participated in the World Trade Center rescue and clean-up operations would not beprecluded from seeking just compensation for injuries sustained in such operations for whichan immediate connection could not be established. Rather, this bill would extend the time tofile a notice of claim for persons who have known for years that they may have symptomsrelated to the attacks on the World Trade Center, but failed to file a timely notice of claim.
Although this bill does not have direct fiscal implications for the State, the potential impact onNew York City is significant and could be argued to be an unfunded mandate; therefore, theDivision of Budget recommends that this bill be vetoed.
Validation: Document 10: 50581561-12Robert l. Megna, Director of the BudgetBy Robert E. BrondiDate: 9/1412009 6:23:00 PM
DAVID A. PATERSONGOVERNOR
STATE OF NEW YORK
DEPARTMENT OF STATEONE COMMERCE PLAZA
99 WASHINGTON AVENUEALBANY, NY 12231-0001
MEMORANDUM
LORRAINE A. CORTES-VAZQUEZSECRETARY OF STATE
To:
From:
Date:
Subject:
Honorable Peter J. Kiernan, Esq.Counsel to the Governor
Matthew W. Tebo, Esq.Legislative Counsel
July 28, 2009
A.7122-C (M. of A. Spano)Recommendation: No comment
The Department of State has no comment on the above referenced bill.
If you have any questions or comments regarding our position on the bill, or if we canotherwise assist you, please feel free to contact me at (518) 474-6740.
MWT/mel
\fVWIN. DOS. STATE.NY.US E-MAIL: [email protected].
oooOlf
Richard F. Daines, M.D.Commissioner
STATE OF NEW YORKDEPARTMENT OF HEALTHCorning Tower The Governor Nelson A. Rockefeller Empire State Plaza Albany. New York 12237
Wendy E. SaundersExecutive Deputy Commissioner
Memorandum
TO:
FROM:
SUBJECT:
DATE:
Peter Kiernan, Counsel to the Governor
Wendy E. Saunders, Executive Deputy ConunissioneriJ$
Assembly Bill 7122-C
July 31, 2009
Your office has requested the Department's comments on Assembly Bill 7I22-C, which is beforethe Governor for executive action. This bill would amend the General Municipal Law in relationto extending the time to file a claim against a public corporation for injuries sustained by personswho participated in the World Trade'Center rescue, recovery or cleanup operations.
This bill would amend section 50-i ofthe General Municipal Law to revive time barred claimsand extend for one year the time for filing notices ofclaim for causes ofaction against a publiccorporation for personal injury suffered by a participant in the World Trade Center rescue,recovery or clean up operations. This would permit those who did not recognize the harm they'suffered as a result of participation in the Wodd Trade Center clean-up during the usual statuteof limitations period to seek recompense from a public corporation for one more year.
The Department of Health recommends the approval ofAssembly Bill 7I22-C.
STATE OF NEW YORKDIVISION OF MILITARY AND NAVAL AFFAIRS
330 OLD NISKAYUNA ROAD
LATHAM, NEW YORK 12110-3514
DAVID A. PATERSONGOVERNOR
COMMANDER IN CHIEF
Directtelephone: (518) 786-4540
MEMORANDUM
July 28, 2009
Legal Affairs
TO: Hon. Peter J. KiernanCounsel to the Governor
FROM: Robert G. Conway, Jr.Counsel
SUBJECT: A. 7122-C
JOSEPH J. TALUTOMAJOR GENERAL
THE ADJUTANT GENERAL
An act to amend the general municipal law, in relation to extending the time to filea claim against a public corporation for injuries sustained by persons who participatedin the World Trade Center rescue, recovery or cleanup operations
This agency has no objection to this proposal.
ooqQ"~\. ':;
_~______' . ,_,."•.__• ~_"'0...__
DAVID A. PATERSONGOVERNOR
Honorable Peter J. KiernanCounsel to the GovernorExecutive ChamberState CapitolAlbany, New York 12224
Via E-mail
Dear Mr. Kiernan:
STATE OF NEW YORKDIVISION OF CRIMINAL JUSTICE SERVICES
Four Tower PlaceAlbany, New York 12203-3764
http://criminaljustice.state.ny.us
July 28, 2009
RE: Assembly Bill Number 7122-CNo Position
DENISE E. O'DONNELLCOMMISSIONER
This is in response to your request for comment on the above-referenced legislationthat adds a new subdivision 4 to General Municipal Law §50-i to extend for one year the timeperiod that individuals may file a claim against a public corporation for injuries sustained as aresult of participation in the World Trade Center rescue, recovery or cleanup operations.
This bill will have no impact on the operations of this agency. Accordingly, theDivision of Criminal Justice Services takes no position on A. 7122-C.
Thank you for the opportunity to comment on this legislation.
Very truly yours,
(0)
//'/_·.~v,.~. {..-r,
Denise E. O'Donnell
An Equal OpporlunitylA{firmative Action EmiJ!oyer
000014.~-- .._...~._--_._-_._.. _--------------_._------ ---
New York StateOffice of Home.land Security
Thomas G. Donlon
Director
August 10, 2009
Peter Kiernan, Esq.Counsel to the GovernorOffice of the Counsel to the GovernorState CapitolAlbany, New York 12224
RE: A07122C-Extends the time for filing a claim against a public corporation for injuriessustained as a result of participation in the World Trade Center rescue, recovery orcleanup operations
Dear Mr. Kiernan:
As requested, the Office of Homeland Security (OHS) has reviewed A.07122C whichwould revive otherwise time barred causes of action of individuals that worked at the WorldTrade Center Site, as well as other locations related to debris removal and recovery of remains,and permit them to file a claim against the State, or other public corporation, within one year ofthe effective date of this bill without the necessity of filing anotice of claim. The need for thislegislation, as referenced in the sponsor's memo, is because a number of workers thatparticipated in the World Trade Center-and other related locations- rescue, recovery or cleanupoperations, are currently barred from filing an action against the State or commencing an actionagainst a public corporation for their injuries because the applicable statute of limitations hasexpired.
OHS recommends that the Governor sign this bill into law.
From a State homeland security perspective this bill would recognize and allowconsideration for those individuals who heroically and selflessly assisted in the rescue, recoveryand cleanup efforts and may have been exposed to unknown hazardous materials and sustainedinjuries or illnesses that were not readily apparent or causally connected to these efforts.Permitting·a one year extension to file and serve a claim against the State or other publiccorporation that are otherwise time barred is, in OHS' view, just and appropriate under thesecircumstances.
Moreover, by extending the statute of limitations for one year and allowing claims to beadjudicated on their merits, as contemplated by this piece of legislation, will send a strong,message to future responders that their needs will not be forgotten and that the State will makeevery efTort to permit these individuals to seek redress for injuries sustained in rescue and
1220 Washington Avenue, State Office Building CampusBuilding 7A
Albany, NY 12226
(.. t\J.~~"" 1S, l "'~.~.l) V : .\~~" '
~.
------~------,~-~_.'""'-------_._-
recovery. effOlts. This, in turn, will help to encourage individuals to respond to any futurecatastrophic events as heroically as our 9/11 responders.
If you have any further questions or require any further information on this maUer, pleasedo not hesitate to contact me or OHS's Acting General Counsel Thomas McCarren at (212) 8494467.
Respectfully submitted,
-~p~./;?/~.
Thomas G. DonlonDirector
1220 Washington Avenue, State Office Building CampusBuilding 7A
Albany, NY 12226
OOOD.I6.',.. "".
Memorandum
NEW YORK STATE POLICE
July 29,2009
To:
From:
SUbject:
Honorable Peter J. KiernanCounsel to the Governor
Darren S. O'Connor ~Counsel to the Division of State Police
A7122-;.C
AN ACT to amend the general municipal law, in relation to extending the timeto file a claim against a public corporation for injuries sustained by persons whoparticipated in the World Trade Center rescue, recovery or cleanup operations
Position:
The Division of State Police takes no position on this legislation.
OOO·Ol7'. Ii'
September 11, 2009
Via email to:[email protected]"ny.us;
Governor David A. PatersonState CapitolAlbany, NY 12224
RE: A.7122-C: AN ACT to amend to amend the general municipal law, inrelation to extending the time to file a claim against a public corporation forinjuries sustained by persons who participated in the World Trade Center rescue,recovery or cleanup operations
Dear Governor Paterson:
The New York State Trial Lawyers Association (NYSTLA) welcomes theopportunity to offer our support for "Jimmy Nolan's Law," which would enable injuredparticipants in the 9/11 rescue, recovery and/or cleanup operations at the World TradeCenter disaster site ("Ground Zero") or related areas whose claims are currently timebarred to commence an action against a public corporation for said injuries provided theydo so within one year ofthe bill's enactment.
Thousands of heroic firefighters and other participants at Ground Zero and relatedareas suffered debilitating respiratory injuries as a result of the failure ofthe City ofNewYork and others responsible for their safety to provide them with proper protectiveequipment. These injuries have had severe health and economic consequences for these9/11 workers - and their families. They deserve full compensation for the life-long"disabilities they have suffered, as will others whose post-9/11 illnesses will emerge in thefuture. The injuries suffered from their exposure to various toxins are typically -latentlymanifested, and are often not diagnosed until years later. Under current law, a claim forthis type of injury does not accrue until the claimant knows or reasonably should haveknown of their injury. While many 9/11 rescue and recovery workers who have becomeill have been able to file timely claims pursuant to existing law, some have not becausethey were not immediately aware of the causal connection between their injury andexposure, did not know of the applicable time limitations, or were simply given thewrong information. Given the heroic sacrifice ofall 9/11 rescue and recovery workers, itwould be a tremendously unjust result for those who were seriously injured but arecurrently time-barred from filing suit if they were not given the opportunity to presenttheir claims.
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Reviving those 9/11 claims that are currently time-barred would ensure that all9/11 rescue and recovery participants who are already sick have legal recourse for thelife-altering injuries they suffered while protecting New York's citizens. At the sametime, the bill would in no way adversely affect the rights of those 9/11 rescue andrecovery participants who have yet to be diagnosed with an injury due to the latent effectsof their exposure and thus whose claims have yet to accrue under CPLR Section 214-c.
Further, this bill would not in any way increase the City ofNew York's alreadylimited liability. In November 2001, the federal government enacted legislation providingthat the liability ofthe City ofNew York for 9/11 claims "shall not exceed the greater ofthe city's insurance coverage or $350,000,000." 49 U.S.CA. § 40101 at Sec. 408(a)(3).In February 2003, Congress directed FEMA to provide up to $1 billion to establish acaptive insurance fund to cover the City ofNew York against injury claims arising fromWTC rescue, recovery and debris removal operations. Public Law 108-7. According tothe City's own attorneys, these two pieces of legislation acted to both cap and fully fundthe City's liability at $1 billion. Thus, by the City's own account, allowing victims of the9/11 rescue and recovery operations, who are currently time-barred from bringing suit,the opportunity to now file an action against the City will not increase its already limitedand fully funded liability. Parenthetically, in announcing the passage of the legislation,Mayor Bloomberg explained, "This legislation is necessary for the City to expedite thepayment ofclaims relating to this effort.", however, to date, not one ofthe approximately10,000 World Trade Center respiratory claims that have been filed has settled.
Because the enactment of this legislation would provide greatly deservedcompensation to the courageous individuals who sacrificed during the 9/11 rescue,recovery and/or cleanup operations at Ground Zero, NYSTLA supports this legislationand urges the Governor to sign it.
Respectfully submitted,
/s/ Richard Binko
Richard BinkoPresidentNew York State Trial Lawyers Association
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OFFICERS
MICHAEL J. PALLADINO
VICTOR R. CIPULLO
KEN SPARKS
PAUL DI GIACOMOTretwrrtr
KEN CARDONABornugh.Dirt!ct/Jr
MankJrlmVBroru/H{'(tdqrwrtr:r.~
GEORGEFAHRBACHBartl-U8h Dir~('lor
BrookiynIQwenslS'olcn bland
BRIAN HUNTChairman, Boord ()f Tru.rtr:t:.f
CECIL MARTINEZSeTRt':"nf at Amu
TRUSTEES
JOSEPH T. CUSANELLI
SAMUEL T. MILLERManhattan South
BRIAN HUNTManJrnllarJ North
PAUL E. MORRISONBrotU
SALBRAJUHA8motlyn North
JOE CALABRESE
JOHN LA PIERREQuun.f
JEFFREY WARDSltlt.fnbland
DETECTIVES' ENDOWMENT ASSOCIATION INC, . . .POLICE DEPARTMENT • CITY OF NEW YORK26 THOMAS STREET. NEW YORK, NEW YORK 10007· (212)587-1000
FAX (212) 732-4863· E-MAIL info@nycd~tcctiYes.oTg
MEMORANDUM OF SUPPORTS.3325-B / A. 7122-B
. The Detectives' Endowment Association, Inc. (DEA) - the Wlion and active and retired New York Police Department detectives -supports the above-mentioned legislation.
Many who participated in the rescue, recovery and clean up from the September 11,2001 attacks are now suffering debilitating illnesses and even death as a result of theirexposure to toxic chemicals and other substances in the rubble of)he WTC dlsaster._These contaminated substances, toxic fumes, and decomposing bodies were prevalentat such locations as Ground Zero, the Fresh Kills Landfill, the Morgue and its satelliteand makeshift offices and other locations.
These people deserve to have their day in court, if they so desire. The abovementioned bill will extend the time period"whereby they may file a notice of claimagainst the parties whom they believe were complicit in their exposure to toxins.This may include, but is not limited to, the City of New York, the Port Authority ofNYINJ, or any other publicly held corporation related to the World Trade Centersites~
It is incumbent upon the State ofNew York not to turn its back on all those who selflessly and heroically toiled in the grueling days and months that followed the teITor~
ist attacks of September n, 2001. By being responsible to the needs of these braveindividuals, we will ensure the health and safety of those who not only worked in thepast, but who may be called upon once more in the future to come to the aid of theirfellow New Yorkers.
On behalfof the more than 16,000 members of the DEA, we urge you to support billsS.3325-B I A. 7122-B and sign them into law. - ,~- - _.. . - -
WELFARE OFFICERS
KEVIN B. DINEEN
WILLIAM F. McNEELYManhattan South
ERVIN URBINAMunh(llum Non"
DANIEL RIVERABrrm..r
ANTHONY CARDINALEBrooklyn North
FRANK CICCONEBrooklyn SQuth
JOHN J. COMER
GREGORY W. SILVERMANS,orm bland
LOU MATARAZZOLegislmi\'e Dirl."cror
C:~~.~Michael J. panaPresident
MJP/sfk
~t~c>Lou MatarazzoLegislative Director
THE POLIO: UNION REPRESENTING THE GREATEST DETECTIVES IN THE WORlLDAFFILIATIONS _: NATIONAL AssociAnON OF POLICE ORGANIZATIONS (NAPO) ---
NEW YORK STATE ASSOCIATION OF PI:lAs ,
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September 15,2009
To:
From:
Subject:
Peter KeirnanCounsel to the Governor
Alexandra Altman
A.7122-C (AN ACT to amend the general municipal law, in relation toextending the time to file a claim against a public corporation for injuriessustained by persons who participated in the World Trade Center rescue,recovery or clean-up operations)
The above-referenced bill, which is now before the Governor for signature, would amendGeneral Municipal Law § 50-i to revive for one year certain claims related to the World TradeCenter rescue, recovery, and clean-up effort that may now be barred for failure to file a notice ofclaim in a timely manner. Because this bill frustrates the purposes of the notice of claimprovisions and unfairly punishes all municipal entities and public authorities established by theState ofNew York, we urge that this bill be disapproved.
BPCA is a public authority created by the New York State legislature in 1968 and isorganized and existing under the laws of the State ofNew York. BPCA' s mission is to plan,create, coordinate and maintain a balanced community of commercial, residential, rental and parkspace within its designated 92 acre site on Manhattan's lower west side. As a public authority,BPCA is entitled to all of the protections afforded under the New York General Municipal Law.At present, there have been over 600 tort cases filed against BPCA solely as the owner of theground under the buildings where plaintiffs alleged to have worked, since there is no claim thatBPCA hired or supervised these plaintiffs in performing their alleged rescue, recovery and cleanup work. Nearly all of these cases were recently dismissed by the United States District Court forthe Southern District ofNew York (Judge Alvin Hellerstein) due to the plaintiffs' failure to fileany notice of claim. Significantly, none of these plaintiffs ever even sought leave to file a latenotice of claim within one year and ninety days after they discovered their illness. The proposalbefore you would serve to revive these previously dismissed claims.
We believe the bill is not necessary to protect the rights of individuals who only recentlydiscovered symptoms of injuries that are potentially related to the cleanup and rescue efforts.Where plaintiffs allege that they did not discover their injuries until after the ninety day statutoryperiod expired, CPLR § 214-c would extend the time period for service of a notice of claim.Under CPLR § 214-c, plaintiffs who only recently discovered their injuries would be permitted
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to serve a notice of claim within ninety days after the date when the injury was discovered orreasonably should have been discovered, whichever is earlier. In light of the foregoing, anyperson who believes they have sustained an injury in the rescue, recovery and clean-up of lowerManhattan following the 9/11 terrorist attacks has the ability, and always has had the ability, toserve a notice of claim within ninety days of discovery of their injury.
Thus, an amendment to the General Municipal Law § 50-i is not only unnecessary, butsuch an amendment, eight years after the 9/11 terrorist attacks, would only serve to swell thecourt system and delay the cases ofthose plaintiff's who did file a notice of claim years ago.
The purpose behind the notice of claim requirements of General Municipal Law §50-e isto give municipal entities and public authorities early notice so that an investigation can bepromptly commenced and evidence relating to the claim can be preserved. This proposed billundermines the very purpose of the ninety-day requirement delineated in General Municipal Law§50(e) and will defeat BPCA's ability to investigate the facts surrounding any and all claimsagainst it leading to further protracted litigation.
In sum, BPCA strongly urges that this bill be disapproved since the bill only serves toextinguish the sound legislative policies behind the General Municipal Law and unfairly subjectBPCA to potentially thousands of lawsuits, which it has had no opportunity to timely investigate.
Thanks for your consideration.
CC:
James Cavanaugh, PresidentJohn Flannery, Esq.
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STEPI~N J. CA&<;IDY~~~t ENG.ZW
WILLIAM ROMAKAHoaffh /I S<ttoly 0ffl<;tKSergeant-AI-Alms ENG. 238
JOSEPH A. MICCIORecording Semltsr)' ENG. 295
ROBERT STRAUBTt8IlS1Jfef ENG. 45 LAD. 48
ENG. 74
LESTER LAYNEFirs Marshal Repres&rlrative
DANIEL MURPHVManhattan 1"ruS:tee
STEPHEN G.. HUMENESKYOtIeens Trust... ENG. 301
EDWARD BROWNBronK 1l1Jstoe
JOHN G. KELLY. JR.Brooldyn Trust... .Chairman of the Board ENG. 201
DONALD RULANDStalen IsJend Trum>e ENG. 157
OF GREATER NEW YORKLocal 94 I.A.F.F. AFL-CIO
204 EAST 23rd STREET. NEW YORK, N.Y. 10010TEL. (212) 683-4832 • FAX (212) 683-0710 • WWW.UFANVC.ORG
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LAD. 7JAMES M. SLEVINVice_
August 21, 2009
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Honorable 'David A.-PatersonGovernor of New York StateState CapitolAlbany, New York 12224
Re: Legislation to Revive Claims of InjuredWorld Trade Center Responders
Honorable Sir:
As President of the Uniformed Firefighters Association ("UFA"),I urge you to sign into law A. 7122C (Spano) and S. 3325B (Cousins).
This legislation will provide firefighters and others whosustained injury as a result of participation in the rescue, recoveryand/or cleanup operations at the World Trade Center disaster site("WTC Site"), but are currently time-barred from filing suit, oneadditional year in which to commence an action against a publiccorporation.
'IThousands of responders ,many disabled from working', now suffer
permanent respiratory injuries because those charged wit)1 theirsafety at the WTC Site, the City of New York ("City") and itscontractors, failed to provide them with appropriate personalprotective equipment.
Injuries related to WTC service take time to show themselves,and are often not diagnosed until years later. Many, but. not all,injured WTC responders filed timely claims. Some, however 1 weregrief stricken and too preoccupied witn the loss of their fellowfirefighters to worry about their own health and legal rights. Giventhe heroic sacrifice of all of these responders, it would be unjustto deprive the seriously injured of their day in court because oftime limitations.
Honorable David A. PatersonAugust 18, 2009?~g~ ?.?.~ ~ _ _ _ _- .
This bill would provide WTC responders with one additional yearto commence an action to recover for injuries suffered as a result of j
their service.
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Mayor Bloomberg explained that the appropriation was II necessary"for the City to expedite the payment of claims relating to thiseffort. n To date, not one of the approximately 10,000 World TradeCenter respiratory claims has settled; however, private attorneys forthe City have received in excess of $125 million in legal fees, takendirectly from the $1 billion grant.
Based upon the City's arguments in pending WTC Site lawsuits ,.there will be no financial impact if this legislation is enacted. In2003, Congress appropriated $1 billion to the City to insure thesevery claims.
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The City argues that its liability for WTC claims is capped atthe limit of the $1 billion grant and that City funds are protected.If the City uses the grant for its stated purpose, the City will beheld harmless, as its own attorneys argue, and first responders willget the benefits they deserve.
Injured WTC responders, who served at Ground Zero without'hesitation eight years ago, should not be denied access to New York'scivil justice system today. Please sign this bill into law.
STEPHEN J. CASSIDYPresident
SJC:law
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Founder John Feal.9/11 ResponderAdvocateKidney donorNYS Recipient ofCivilianCongressionalMedal of Honor
Dear Gov. Patterson,
..FEALGOOD,OUMOAIION
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Home: 631 724 3320Cell: 516901 7427Email: [email protected]
Website:Fealgoodfoundation.comFed tax ID#20-5187809
NYS Reg. No. 40-82-94
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I am writing you in order to offer my support of the "Jimmy Nolan Law." I ask that this importantpiece of legislation be immediately signed into law so that Ground Zero First Responders are ableto enforce their legal rights and be justly compensated for the injuries they incurred due to theirbrave work at ground zero.
Following the September 11th terrorist attacks on the World Trade Center the country wasgripped with grief for those that had lost their lives or had been seriously injured at Ground Zero.During this time tens of thousands of First Responders and emergency personnel weredispatched to Ground Zero; tens of thousands of volunteers responded to the site in order to offertheir assistance in rescue, recovery and clean up operations. Unfortunately, during their work atthe site these workers and volunteers were exposed to harmful airborne toxins which havecaused severe health impairments in thousands. Even more unfortunate is the near certain realitythat thousands more will become critically ill as a result of their laudable actions followingSeptember 11th. The men and women, who lifted this city, in fact this country, up from its knees,have now been knocked down themselves due to life threatening illnesses caused by their workat Ground Zero.
The Jimmy Nolan Law seeks to remedy an injustice which some First Responders have facedin the legal system. Many World Trade Center related diseases have laid dormant andasymptomatic for years inside victim, only to reveal themselves many years past the statute oflimitations to file a claim against a public corporation for the injuries they sustained. The JimmyNolan law extends the statute of limitations for filing an action which would protect those thathave "later developing" injuries resulting from Ground Zero exposure. Although compensationcannot take away the illnesses that First Responders now endure, it can provide financial peaceof mind during their recoveries.
I thank you for your lime andconsideration of this matter and hope that you will immediatelysign the Jimmy Nolan Law.
"Any nation that does not honor its heroes will not long endure"Abraham Lincoln
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SincerelyJohn Feal Founder & President
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SERGEANTS BENEVOLENTASSOQATIONPOLICE DEPARTMENT, Orr OF NEW YORK
35 WorthStreet; NewYo* NY 10013212.226.2180 FAX 212.431.4280www.sbanyc.oIg
-~dLa~dD~ Mullins '. ' rPresident
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The Honorable David A. PatersonGovernorState CapitolAlbany, New York 12224
Robert W. Johnson, Esq.Treasurer
Robert GanleyVice President
Maureen MurphyRecording Secretary
Dear Governor Paterson:
Gary DeRosaFinancial Secretaryi
Jerry LearyHealth & Welfare Secretary
I .Paul A. CapotostoCity-Wide Secretary
As the President of the 11,000 member New York City SergeantsBenevolent Association (SBA), whose 11,000 members make it the fifthlargest police union in the country, I urge you to sign into law S3325-B/A7I22-B. These bills, which are also known as "Jimmy Nolan's Law" inreference to an injured 9/11 worker, have already been unanimously passedby both houses of the New York Legislature and will soon be submitted foryour signature.
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If signed, these bills will extend for one year from the bill '.seffective date, the time in which any person injured while working in theWorld Trade Center rescue, recovery or debris removal operations can filea Notice ofClaim against the City ofNew York, the Port Authority of NewYork and New Jersey, or any other public corporation. This includes, but isnot limited to, persons working at or around Ground Zero, on barges, at 1themorgue or at temporary morgue locations, andlor the Fresh Kills LandfHl.
Under New York's General Municipal Law (GML), the service of a:1; Noticde of Clafiim
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hadGe upon a ~dublichcorporation as a condition
prece ent to 1 mg SUlt. e ML provl es t at a Notice of Claim againstthe City of New York must be presented within 90 days of the accrual ofthe injury. If the Notice is not filed within that 90 day period, the claimantmay move the Supreme Court for leave to file a late notice of claim withinone year of the 90th day. After that time, no claim may be maintained fagainst the City or any other public corporation.
The respiratory illnesses caused by the toxic exposures related to9/11 are largely latent in nature, often taking anywhere from several monthsto many years to manifest. All too often they are initially mistaken, forminor ailments such as colds or sinus infections. For this reason, mailyofthe men and women injured while working in and around the WTC site didnot learn they had a potential claim until well after the requisite timelines.
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Over the past year this ~ortunate situation was exacero.ted when the IAppellate Division, First Department, and later, United States DistrictCourt Judge Alvin K. Hellerstein, who is sitting on the "World TradeCenter Disaster Site Litigation," dismissed more than 400 cases brought byailing 9/11 rescue and recovery workers.
There are no words to describe the profound heartbreak and feelingsofhopelessness that these judicial decisions have created. I have spentcountless time speaking with young people who should be in the prime oftheir lives, but instead can barely cross a room without gasping for air.
r"There,ar(;:'scbres on'elatively. yoUngmen arid wofiien~iio~consi8ned to '~itidly while their families do without material necessities because they canno longer work and often have to drag oxygen tanks behind them to be able .to function at any level at all.
It is for people such as these, the rescue and recovery workers whoselflessly faced grave dangers, that I urge you to sign S3325-B/A-7l22-Bwithout delay. These gallant emergency workers responded to New York'scall without hesitation or consideration of their own safety or ability tosupport themselves and their families in the future. It is imperative thatNew York prove to them that their efforts and sacrifice are valued andappreciated by more than the perfunctory and downright demeaning anddehumanizinglip service that so many public officials have rendered.
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.' .' -I urge you in the strongest possible te!1TIs to sign "Jimmy Nplan'1'Law" when it is presented for your review. Its potential beneficiariesdeserve nothing less. Please feel free to contact me if you have anyquestions or would like to discuss this extremely crucial matter.
Respectfully,
Ed MullinsPresident
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TelephOne: (212) 815-1375Fax: (212) 815-7533
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IILOCAL 375, DC 37, AFSpME, AFL·CIO125 Barclay Street, 6th Fl., New York, NY 10007-2179
Dear Governor Paterson:
I
OFFICERS..PRESIDENTClaude Fort. P.E.
1ST VICE PRESIDENTJon Forster
i2ND VICE PRESIPENTMichelle·Keller
\ ISI;:CRETARYAhmed.Shakir; P.E..
TREASURERThomas M. Constantine
FINANCIAL SECRETARYSteve Cooper
,1RECORDING SECRETARYLeela Maret
SERGEANT-AT-ARMSDavid Grant
COMMITTEE CHAIRSEXECutIVEGeorge Lawrence
LEGISLATIVESusan Silverman
August 6, 2009
T~e Honorable David A. PatersonGovernorSt~te CapitolAlbany, NY 12224
Re: Bill: S3325-B/A-7122-B: "Jimmy Nolan's Law"
IAs President of the Civil Service Technical Guild, Local 375, District Council37; AFSCME, AFL-CIO, I am writing to you, on behalf of the 6,800 memhersin our Union, to urge you to sign the above-mentioned bill IG{own .as ~'JimmyNolan's Law." It is my understanding that both houses 'of'the New Yorklegislature have unanimously passed S3325-B/A-7122-B, and it will bepr~sented to you shortly.
MEMBERSHIPGerald Leieau. P.E.
PENSIONSMike Tromsn,CIVIL SEORVICEFrank T~orl,as
I .~PUBLIC RELATIONSVincent Sawinski
LABOR ! ~OLlTICALACTIVITIESFred Newton
LEASIN~ IKhurshe~d'A. Siddiqi
SAFETY' IBobby Shah
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THE- CITY OF NEW YORK
OFFICE OF THE MAYOR
NEW YORK, N. Y. 10007
August 14, 2009
A.7122-C - by M. ofA. Spano
AN ACT to amend the general municipal law, in relation toextending the time to file a claim against a publiccorporation for injuries sustained by persons whoparticipated in the World Trade Center rescue,recovery or clean-up operations
DISAPPROVAL RECOMMENDED
Hon. David A. PatersonGovernor ofthe State ofNew YorkExecutive ChamberAlbany, New York 12224
Dear Governor Paterson:
The above-referenced bill is now before you for executive action. Thebill would amend GeneralMunicipal Law § 50-i to revive for one-year certain claims related to the World Trade Center rescue andclean-up effort that may now be barred for failure to timely file a notice of claim. The revival of claimswould cover claimants who allege injuries related to participation at the World Trade Center site (definedas nearly all of Manhattan south of Canal Street), the Fresh Kills landfill, any temporary morgueestablished in 2001 and any barges that operated between Manhattan and the landfill. The City believesthat upwards of3,000 claims may be revived were this bill to become law. Because this bill unnecessarilyfrustrates the legitimate purposes of the notice of claim provisions and unfairly punishes the City of NewYork~ the City urges that this bill be disapproved.
The City honors the service of those who worked bravely at or around the site of the terroristattacks of September 11, 2001, and has coinmitted to pursuing federal legislation to provide sustainedfunding to treat those who are sick, or could become sick, and to re-open the Victim Compensation Fund.Moreover, the City has not waited for Federal funding to get treatment to those who need it. The Cityhas funded and expanded the World Trade Center Environmental Health Center at the NYC Health andHospitals Corporation. Of the three WTC Centers of Excellence, -it is the only one open to responders aswell as residents, area workers, and other non-responders affected by the attacks free of charge.
The proposal now before you, however, can only undercut these efforts by driving more people tothe tort system to obtain compensation for their ailments. Moreover, the bill is not necessary for thosepersons who only recently discovered symptoms of injuries that are potentially related to the cleanup andrescue effort to file notices of claim. -
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. Hon. David PatersonAugust 14,2009Page 3
A.7122-C
Finally, as noted, the City is advocating for Federal legislation that will provide long-tenn medicalmonitoring and treatment and re-open the Victim Compensation Fund (VCF). (Such legislation wasrecently voted out of the House Judiciary Committee.) Reopening the VCF will provide fast, fair, andcertain relief to the workers and area residents who demonstrate that they were .injured as a result of theterrorist attack. Compensation from are-opened VCF will be prompt and certain. In addition, there will beno need to marshal the services ofhundreds oflawyers and experts in a pitched battle between responders,and the City and its contractors. This bill would have the opposite effect, driving thousands moreplaintiffs into prolonged, extensive litigation against the City.
In sum, the Citybelieves strongly that persons who may have legitimate claims should have theirday in Court. But this bill eviscerates the applicable notice of claim provisions, rewards delay, andunfairly subjects the City's taxpayers to substantial liability for claims that should have been brought longago. Such a result should not be condoned nor allowed.
Accordingly, it is urged that this bill be disapproved.
Very truly yours,
MICHAEL R. BLOOMBERG, Mayor
By: Michelle GoldsteinDirector
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The Honorable David A.PatersonGovernorState CapitolAlbany, New York 12224
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Affiliated withLaborers' International Union of North America
43-12 DITMARS BLVD. • ASTORIA, NY 11105
Phone: 718-278-5800 • Fax: 718·278-8111
August 3, 2009
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Re: Bill: S3325-B/A-7122-B: "Jimmy Nolan's Law"
Dear Governor Paterson:
. ,. . Out Linion supports Plaintiffs' Li~iso~'Counsel in the In re: World 'Trade Center Disaster SiteLitigations, 21 MC 100 (AKH), They reereserit the majority ofthe plaintiffs in two companion actions,21 MC 102 (AKH) and 21 MC 103 (AKJ;l) all ofwhich~re pending in the United States District Court,SOlithern District of New York pursuant to the Air Transportation Safety and System Stabilization Act("ATSSSA") Pub. L No. 107-71, § 201(b)(2)(A)(3), 1I5 Stat. 597, 646 (2001), codified as 49 U.s.C. §4o{Ol. They represent more than 9,000 plaintiffs in the primary litigation arising from the daims ofpolice officers, firefighters, construction workers, laborers and others who have been injured due to theirexposure to toxic fumes and particulate matter in and around the World Trade Center site following theterrorist attacks of September 11, 2001. They also represent some 1200 individuals injured by. the WTCtoxic matter while engaged in the clean up of office buildings surrounding the WTC site in the 21 MC
- 102; Iitigations'~s well as plaintiffs in the so-called "straddler" cases pending under 21 MC 103.
We write today to urge you to sign a bill that will shortly be presented to you, specifically S3325B/A-7122-B, also known as "Jimmy Nolan's Law" for one ofthe plaintiffs represented by their office. Itis our understaJ:lding that both houses ofthc New York legislature have unanimously passed S3325-B/A7122-B, but that the bill has not yet been submitted for your signature. Simply stated, Jimmy Nolan'sLaW, upon your signature making it law, will extend the time for any person who was injured whileworking in the World Trade Center rescue, recovery or debris-removal operations (including but notlimited to the barges, the morgue and temporary morgue locations, and Fresh Kills Landfill) to file his orher Notice of Claim against the City of New York, the Port Authority of New York and New Jersey andother public corporations until one year from the bill's effective date. A copy of the text of the bill haspreviously been sent to you. Accordingly, the claims of thousands of fire fighters, poliJ;e officers,
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The Han. David A. PatersonRe: Jimmy Nolan's Law8/3/2009, page 2
construction workers and the members of numerous labor unions who would otherwise be foreclosedfrom seeking compensation from the Ci~, the Port Authority and other public corporatiom: for theirsevere and life threatenin~ injuries can now be revived ifJimmy Nolan's Law becomes New York Law.
In addition to creating the ATSSSA, Congress provided a grant in the amount of oJl1e billiondollars to crea~e a Captive Insurance Company to cover the claims of injured Ground Zero workersagainst the City of Ne,w York and its WTC contractors. That billion dollars led to the creation of thewtc Captive Insurance Company, Inc., ilie carrier that provides coverage to the City and its contractors.In addition to the billion-dollar fund (which, notably, has yet to pay a single claim for a respiratory injurysuffered at or near Ground Zero), the ATSSSA provided the City with a liability cap of $350 milliondollars (or its aggregate insurance coverage), whichever was larger. The legislation about the billiondollar allocati0t;t and the liability cap for the City of New York have previously been sent to you. Basedon the foregoing, your signing of Jimmy Nolan's Law will not result in the cost of a single penny to'the City of New York (nor the State, which is not a defendant in these actions).
As you may be aware, under New York's General Municipal Law ("GML") GML §50-e(l)1 the-service ofa notice ofclaim must be made upon a public corporation as a condition precedent to filing suit.The GML provi~es that a Notice of Claim against the City ofNew York must be presented within 90 days
. ,ofthe accrual of:the injury. If the Notice i~ not filed within that 90 day period, the claimant may move theSupreme Court for leave to file a late notice of claim within one year of the 90th day. After that'time, noclaim may be maintained against the City or other public corporation. The respiratory illnesses wused bythe Ground-Zero toxic exposures are largely latent in nature taking anywhere from several months toyears to manifest, the true cause not being immediately apparent. Often they are initially mistaken forminor illnesses such as a cold or sinus infection. For this reason, sadly, many of the men and womeninjured while working in and around the WTC site did not learn they had a claim under ATSSSA untilwell after the year and 90 day limit in which to file a Notice of Claim or move for leave to file a latenotice.
In July 200S, the Appellate Division, First Department dismissed more than 300 claims broughtby injured WTC site workers upon a finding that the applications seeking leave to file late notices ofclaim had been procedurally defective, thQ' court having for the first time found that the claimant's own orhis physician's affidavit was a necessary part of that application. Felder v. City ofNew York, 53 A.D.3d
~ :401 (I Dep't 2MS). Yesterday, Judge Ahlin K. Hellerstein, the United States District Court Judge sittingon the In re: WoNd Trade Center Disaster Site Litigation cases dismissed more than one hundred of theclaims in the 21 MC 102 litigation for the failure to file a notice of claim or, alternatively, for the failureto timely file such a notice. Plaintiffs argued that the ATSSSA, a purely federal cause ofaction, containedno indication that- the United States Congress intended to import the state's procedural Notice of Claimprovisions in that federal cause of action. Unfortunately, Judge Hellerstein was not convinced, holdingthat the Notice of Claim provision was a substantive, rather than procedural aspect ofNew York la~~, andas such, applicaO'le to the ATSSSA cause of action. Based upon Judge Hellerstein's recent "ruling,
I Other statutes apply to different public corporations such as the Port Authority ofNew York and New Jersey; theBattery'Park City Al;Ithority and so on. All are covered in the proposed new law.2 ATSSSA provides, in relevant part, that "[t)he substantive law for decision in any such suit shall be derived ii-omthe law; including choice of law principles, ofthe State in which the crash occurred unless such law is inconsistentwith or preempted by Federal law." ATSSSA, §408(b)(2) (emphasis added).
, '1 ....~
The Hon. David A. PatersonRe: Jimmy Nolan's Law
. 8/3/2009, page 3
thous~nds of other claims by firefighters, police officers, construction workers and other laborers are nowsubject to dismissal.
The Unitrd States Congress has taken extraordinary measures (creating the ATSSSA cause ofaction, allocating the billion~dollarcoverage for claims and providing the $350 liability cap to the City) toassure that the heroic men and women who placed their lives and livelihoods at risk to help New YorkCity at its neediest moment in time will not go without redress for their injuries. In its tum, the New Yorklegislature has provided an avenue to protect and revive the claims of these heroic men and women whowould otherwise be precluded from filing or maintaining their claims due to the General Municipal Law'sprocedural hoops and the latent nature oftq.eir Ground~Zero related illnesses.
i Governor ;Paterson, until you have spent time speaking with young people in the prime of theirlives who are so;lII they can barely cross a room without gasping for air, young men who ar~e nowconsigned to sit idle while their families do without material necessities because they can no longer work,who drag oxygen tanks behind them to be able to function at .any level at all, you can not begin toappreciate how very important it is for you to sign S3325-B/A-7122~Bwithout delay upon its presentmentto you, These people responded to New York's call without hesitation or consideration of their safety orability:to support themselves and their families in the future - it is high time for New York to sh~w thattheir efforts and sacrifice are valued and appreciated in more than just lip service by its public offi~iaJs.
We urge you, in the strongest possible terms, to sign Jimmy Nolan's Law when it is presented foryour review. The brave men and women who are its beneficiaries deserv~ nothing less. If you require anyfurther information that my office can pro~lIide to assist you in your decision on this vital issue, please donot hesitate to call the undersigned.
Respectfully submitted,
LOCAL 29, BLASTERS,DRILLRUNNERS, MINERS,AND LABORERS UNION
Thomas Russo
cc:Mr. Lahy SchwartzFirst Deputy Secretary to the GovernorState CapitolAlbany, New York 12224
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000034'::
LOCAL 78ASBESTOS, LEAD & HAZARDOUS WASTE LABORERS
30 CLIFF STREET, 6th' FLOORNEW YORK, NY 10038-2825
Tel. (212) 227·4803Fax: (212) 406·1800
July 31, 2009'\
The Honorable David A:. PatersonfGovernor
-8tkie Capitol, ~~ rAlbhny, New'York 12224
t· '
Re: Bill: S3325-B/A-7122-B: "Jimmy Nolan's Law," .
Dear Governor Paterson: '. ". ">'§·~·"""·'··~"·_""::': .• v,.•.
f' Our union snpporis"~I5iiiStli~~Jii~ZJ?~?;;;7a n:~:te Center DisasterSite Litigations", ~1' MC IPO{AKH)..,/They· represent" the maJonty of. the <plaintiffs m :twocdmp~iohaeti6tis;21'MC;102;(A.KH)·and:21 MG:IO~'{AKH}:an'ofwhicharepending in the
1 ..:'.. "'?Jr..~";.: ,<.:~~ ,~I "'~i;~:4 ,:';-';:', /':N ~..- ',' .;>. ,- ~_--.{ }f r- -': " .~~:~ .:. ",.,.," ",'~ - ~ -, :>~ , '-; . i." , :'.;.
United·States,-;District Court; S6uthem Distrid of·New'york pursuant to the 'Air.Transportationl ' ,.-:. 'c '. ' ,.it ' .~- 'li"'. ~, ••, '-:,,~ !"';P":" ..:"',., "'":.;,:J;> ::;1 , ..... ,., .~c -:'. ~ ,.' ':'. -;',' - ".- """, '~~•• ,:~, ',::,_. h. ''':-. ~-r - ._ "", -'::'<, "',"', •6. .'! t'~'-'- ' .~ ,-' ...'
S~fety arid Systeni:StalJ.,iI!~a~~n,A<::t~("ATSS?A';YP.tib'J9.-:~0::)?z.~?};:'§ :201~p)(2)(A)(3~, :~ 15Stat. 597, 646 (200D,codified:ast+~.~;S:G~:.§:~q,~g~ .. "They,..reIJ~esent more than 9,000 plamtIffsin.~ the primary litigatioIl:~sing froI:i~tl1ej'\J~im~~f;:po,~cfo~cer~".firefighters,.constructionwmkers, laborers and others:who_have beeiFmJur~ dueJo thewexposure to tOXIC fumes and
ji • '--..-'o,v. "'~ :-l",':l>:R _ ,." -..-, " ?. '-!' ":--"'.. ,_,:<"~,, ...~:~;>-,.....
particulate m~tter in and around the'World:Trade'Center'site following the terrorist attacks ofSJptember 11,2001. They also represent some 1200 individuals injured by the WTC toxic matter
I.. ,
while engaged in the clean up of office buildings surrounding the WTC site in the 21 MC'102litigations as well as plaintiffs in the so-called:'stradd.}er'.:, cases pending under 21 Me 103" t
I. 11;;fP"<;:;\
....11 -'-We wiite' tOdaii~ urg~'you"'to·~~:::~~~ij"th,~fWln ~~OrUYbe piesente~l?-You; specifically' .-. ~S33Q5-B/A-7122-B, also known as "Jzmmy Nolan;s Law" for one of the plamtIffs represented by
j '.. " , '..•., '.'their office. It is our understanding 'that; both~,houses :,of the New York legislature have
j I, . .,.. , .... <'.:' .....unanimously passed S3325-B/A-7122-B,but'that the·bill.:has not yet been submitted for your.signature. Simply stated; Jimmy Nolan 'sLa}1l,uponyo\Ji:signature making it law, will extend the!time for any person whd was injured whil~\vorkirigihthe World Trade Center rescue, recovery jortdebris-re~oval operations (i?cluding but not limi~ed to the bar.ges, the ~orgue.and temp?rarymorgue locatlons, and Fresh Kills Landfill) to file hIS or her NotIce of ClaIm agamst the City ofNbw York, the Port Aut;hority of New York and New Jersey and other public corporations untilorie year from the bi1l's:effective date. A copy of the text of the bill has previously been sent toydlu. Accordiilgly, the claims of thousands of fire fighters, police officers, construction workersand, the members of numerous labor unions who would otherwise be foreclosed :t;rom seeking
I
'i---------'---~--_ ..................'-------~---------_...:-_--------,----
000035 ..
·.-:;r
1
1
The Hon. David A. PatersonRe: Jimmy Nolan's Law
. I7/31/2009, p~ge 2
the creation <;ff the WTC Captive Insurance Company, Inc., the carrier that provides coverage tothe City and *ts contractors. In addition to the billion-dollar fund (which, notably, has yet to pay asingle claim for a respiratory injury suffered at or near Ground Zero), the ATSSSAprovided theCity with a liability cap of$350 million dollars (or its aggregate insurance coverage), whicheverwas larger. The legislation about the billion-dollar allocation and the liability cap for the City ofNew York h~ve previously been sent to you. Based on the foregoing, your signing of JimmyNolan's Law will not result in the cost of a single penny to the City of New Vorl; (nor theState, which is not a defendant in these actions).
1 .As y~u may be aware, under New York's General Municipal Law ("GML") GML §50
e(1)1 the service of a notice of claim must be made upon a public corporation as a conditionpreeedentto filing suit. The GML proviaesthat'a-NotICeofCla1magalnstthe Cltyofr·:iew'Vofkmust be presdnted within 90 days of the accrual of the injury. If the Notice is notfiled within that90 day period, the claimant may move the Supreme Court for leave to file a late notice of claimwithin one ye.ar of the 90th day. After that time, no claim may be maintained against the City orother public 60rporation. The respiratory illnesses caused by the Ground-Zero toxic f:xposuresare largely latent in nature taking anywhere from several months to years to manifest, the truecause not being immediately apparent. Often they are initially mistaken for minor illnesses suchas a cold or sinus infection. For this reason, sadly, many of the men and women injured whileworking in arid around the WTC site did not learn they had a claim under ATSSSA until wellafter the year and 90 day limit in which to file a Notice of Claim or move for leave to file a latenotice.
In July 2008, the Appellate Division, First Department dismissed more than 300 claimsbrought by injured WTC site workers upon a finding that the applications seeking leave to filelate notices of claim had been procedurally defective, the court having for the first time foundthat the claimant's own or his physician's affidavit was a necessary part of that application.Felder v. City of New York, 53 A.D.3d 401 (( Dep't 2008). Yesterday, Judge Alvin k.Hellerstein, the United States District Court Judge sitting on the In re: World Trade CenterDisaster Site titigation ~ases dismissed more than one hundred of the claims in the 21 Me 102
- -litigation for·thefailure·tofile a noticeDf claim or,.alternativ.ely,.for the failure to timely file sucha notice. Plaintiffs argued that the ATSSSA, a purely federal cause of action, con~ined noindication that the United States Congress intended to import the state's procedural Notice ofClaim provisions in that federal cause of action. Unfortunately, Judge Hellerstein was not
Iconvinced, holding that the Notice of Claim provision was a substantive, rather than proceduralaspect of New York law2
, and as such, applicable to the ATSSSA cause of action. Bas:ed uponJudge Helleritein's recent ruling, thousands of other claims by firefighters, police officers,construction ~orkers and other laborers are now subject to dismissal.
I Other statutes apply to different public corporations such as the Port Authority ofNew York and New Jersey; theBattery Park City Authority and so on. All are covered in the proposed new law.2 ATSSSA provides, in relevant part, that "[t]he substantive law for decision in any such suit shall be derived fromthe law, including choice of law principles, of the State in which the crash occurred unless such law is inconsistentwith or preemptetl by Federal law." ATSSSA, §408(b)(2) (emphasis added).
!
----~~-~-~--~--~---------------. J
_._-~ --e- -.-........... ~.,..,.
The Hon. David A. PatersonRe: Jimmy Nol~'s Law7/31/2009, pag~ 3 .. ~ ." ..
-I
-
t._.. ,..'
t..The United States Congress has taken extraordinary measures (creating the ATSSSA
cause of actionJ allocating the billion-dollar coverage for claims and providing the $350 liabilitycap to the City) to assure that the heroic men and women who placed their lives and livelihoodsat risk to helpN"ew York City at its neediest moment in time will not go without redress tor theirinjuries. In its tum, the New York legislature has provided an avenue to protect and revive theclaims of the~p heroic men and women who w.ould otherwise be precluded from _filing ormaintaining their claims due to the General Municipal Law's procedural hoops and the latentnature of their Ground-Zero related illnesses.It - .> G;;;;efri6fI>atl;rSOU, Uiitifyou have,pef,j tim~ speaKingwilli'y01mg people iirlIiej;nine oftheir lives whJ' are so ill they can barely cross a room without gasping for air, young men whoare now consigned to sit idle while their families do without material necessities because theycan no longer work, who drag oxygen tanks behind them to be able to function at any level at all,you can not begin to appreciate how very important it is for you to sign S3325-B/A-7122-Bwithout delay upon its presentment to you, These people responded tq New York's can withouthesitation or consideration of their safety or ability to support themselves and their families inthe future - it ,is high time for New York to show that their efforts and sacrifice are valued andappreciated in more than just lip service by its public officials.
We urge you, in the strongest possible terms, to sign Jimmy Nolan's Law when it ispresented for your review. The brave men and women who are its beneficiaries deserv(l nothingless. If you r~quire any further information that my office can provide to assist you in yourdecision on this vital issue, please do not hesitate to call the undersigned..,
Respectfully submitted,
I'
! '-- -=-
I ~I
I,
Edison SeverinoBusiness Manager
cc: 'IMr. Larry Schwartz
l
First Deputy.Secretary to the GovernorState Capitol"Albany, New York 12224
il
ii/-
000037- --~~--~--------------- -----~~------
f
f
RETRIEVE
STAT~ OF NEW YORK
7122--C
2009-2010 Regular Sessions
IN ASSEMBLY
March 20, 2009
Page 1 of 4
R. R. 319
Introduced by M. of A. SPANO, BING, KAVANAGH, BENEDETTO, PHEFFER,DenDEKKER, GABRYSZAK, MILLMAN, JAFFEE, DINOWITZ, ROSENTHAL, O'DONNELL
Multi-Sponsored by M. of A. COLTON, CONTE, EDDINGTON, GALEF,GORDON, HYER-SPENCER, McKEVITT, MENG, MOLINARO,RAIA, SWEENEY, THIELE,TOBACCO, WALKER, WEISENBERG -- read once and referred to the Committeeon Judiciary -- committee discharged, bill amended, ordered reprintedas amended and recommitted to said committee -- reported and referredto the Committee on Rules -- Rules Committee discharged, bill amended,ordered reprinted as amended and recommitted to the Committee on Rules-- amended on the special order of third reading, ordered reprinted asamended, retaining its place on the special order of third reading
AN ACT to amend the general municipal law, in relation to extending thetime to file a claim against a public corporation for injuriessustained by persons who participated in the World Trade Centerrescue, recovery or cleanup operations
The People of the State of New York, represented in Senate and Assembly, do enact as follows:
1 Section 1. Short title. This act shall be known and may be cited as2 "Jimmy Nolan's law".3 § 2. Section 50-i of the general municipal law is amended by adding a4 new subdivision 4 to read as follows:5 4. (a) Notwithstanding any other provision of law to the contrary,6 including~ny other subdivision of this section, n~ectio_n fifty-e of th~~
7 ~.I::.t:,i,c:J.§, $§c:t:tQP..t:l1,i,I::_t:y--::g,i,gl1t:.l:111rlciI::g<:ii:htJ:"t:§§rlgt" t:h§ §cillc::~t:j,QI1._].~t'1L..<3..rlci8 the provisions of any general, special or local law or charter requiring9 as a condition precedent to commencement of an action or special
10 pI::9c::e§ci,i,pQ. t:l:1~t:<3. rlQt:j,c::§()fc:::L~:iIlll:>§f,i,J.§...d,_()I::p:r:§s§Pt:EaclI _~I1Y C::<3.11_s§ of11 ~ctiC:>rl~inst a publicgQJ:"Poriij:.ion~Qr per$_onalinjuri,es suffere_ci_.l:>Y__<3.1 2 PCiI::i:,i,c:J,PCiI1t:j.Il .VlC:>I::1<:i. 'I'I::a.cl§C::§!I1t:§I:: ... I::§§lC:llEa,I::§!C:O V§!:r:y. QI::C::],§!<3.IlJ:1P QP§!I::.at:J,QI1l::13 as a result of such participation which is barred as of the effective14 date of this subdivision because the applicable period of limitation has
EXPLANATION--Matter in ~talj,_c::~ (underscored) .is new; matter in brackets[-] is old law to be omitted.
1B000990-10-9
http://nyslrs.state.ny.us/NYSLBDC 1/bstfrme.cgi 7/17/2009"!i.__~'~ ~ _
RETRIEVE
A. 7122--C 2
Page 2 of4
1 expired is per~revived, and a claim thereon may be filed and served2C3.:t:lciPf"e>~Ei!9:gtEi!(:tpI:"g"i.ciEi!ci~llql1<::J..C3.:i,I[lis f:i.led and .l:!Ei!l::"veciw::i,tJli.!l_C>.:t:lEi!_YE!C3.I:"3 of the effective date of this subdivision.4 (b) For the purposes of this subdivision:5 (1) "participant in World Trade Center rescue, recovery or cleanup6 operations " .means ~ employee or. volunteer that:7 ti.lpC3.f".1::i,qi.pC3.tEi!cii.:t:lthEi! ..... :r'Ei!~.<::.1.lE! ..I_f".Ei!.<::<),,§:r:-v ().l::_q:tEi!..C3.:t:ll.lP ..9..PEi!l::"C3.ti.9:t:l~LC3.t _thEi!8 World Trade Center site; or9 (ii) worked at the Fresh Kills Land Fill in the city of New York after
10 September eleventh, two thousand one; or11 (iii) worked at· the New.Yorksity.morgue or the temporary morque...Q..rJ,12 Pi.Ei!I:"J..9.qCl..1:i.gl1.§9.p.thEi!W:§~.1:~i.ciEi!.. 9:fMC3.IlhC3..1:1:.C3..rJ,Cl.:ftEi!I:"_~Ei!P.1:Ei!lIll:>§l::" .§].Ei!"§I1:t.l1,13 two thousand one; or14 (iv) worked on the barges between the west side of Manhattan and the15 Fresh Kills Land Fill in the city of New York after September eleventh,16 two thousandgne.17 t?l ... l'J'1e>r1.<:i TI:"a,d§ .<::Ei!I1.1:Ei!I:"~i.tEi!'lrnEi!a,:rl~?.!lyw:l1Ei!l::"Ei!j:>Ei!l.()WC3.l.iIlEi!~t<3,l::"t:i...l1g
18 from the Hudson River and Canal Street; east on Canal Street to Pike19 Street; south on Pike Street to the East River; and extending to the20 lower tip of Manhattan.21 § 3. This act shall take effect immediately.
http://nyslrs.state.ny.uslNYSLBDC 1/bstfrme.cgi
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7/17/2009
