N.Y. Law Opens One-Year Window for Time-Barred 9/11 Claims

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N.Y. Law Opens One-Year Window for Time-Barred 9/11 Claims

Stashenko

09-25-2009

Despite strenuous objections from New York City Mayor R.

Bloomberg's administration, New York Gov. A. Paterson has signed a bill

into

law that opens a one-year window in state court for the filing of otherwise

time-barred legal claims against municipalities by people allegedly sickened

while working in and around Ground Zero following the 2001 terror attacks.

Bloomberg's chief lobbyist in Albany estimated that the new law could

revive more than 3,000 suits and cost New York City " hundreds of millions " of

dollars in damages.

" The implications of this legislation to the City budget are dire and hard

to overstate, " the city's chief Albany lobbyist, Goldstein, said

in _an Aug. 14 memo_

(http://www.nylj.com/nylawyer/adgifs/decisions/092509memo.pdf) to Paterson

urging him to veto _A7122_

(http://assembly.state.ny.us/leg/?bn=A07122 & sh=t) /S3325.

Legislative sponsors said the new law, which took effect Sept. 16, is

necessary to redress an injustice to those who may have been aware that their

ailments were acquired while they were engaged in rescue, recovery and

cleanup operations at the World Trade Center site but who failed to file claims

within the time frame required by law.

Senator -Cousins, D-Yonkers, said she contacted Paterson and

told him he could not in good conscience veto the measure after she heard

the governor was thinking of rejecting the legislation.

" I called his office the week of Sept. 11 and said I can't imagine anyone

vetoing this kind of bill that week, " -Cousins said in an interview

yesterday. " This is the right thing to do and, frankly, it's long overdue.

People are suffering. "

The Assembly's chief sponsor of the bill, Spano, D-Yonkers, argued

that the municipal employees and workers for contractors to the city were

mislead by health and environmental officials who almost immediately after

the terror attacks declared that toxins and contaminants released by the

collapse of the Twin Towers were not serious health concerns.

" People who have gotten sick will have their day in court, " Spano said

yesterday. " This is all about giving them that opportunity. "

Under General Municipal Law §50-1, litigants have 90 days to file a notice

of claim against a municipal defendant. That time period is measured from

the occurrence of their injuries or, more typically in cases such as the

9/11 aftermath involving their exposure to toxic substances under CPLR §214-c,

from when they became aware or reasonably should have been aware of the

onset of their injuries.

Plaintiffs also can seek permission to file notices of claim for up to a

year after the 90-day period has lapsed. And judges asked to grant one-year

extensions frequently granted the requests.

" Rather than benefitting persons who only now realize they may have

suffered injuries from exposure, the only class that this bill benefits are

those

who have known for many years that they have or had symptoms that may or

may not have a relation to the 9/11 attacks on the World Trade Center, but

who failed without justification to follow the law and file timely notice of

claim, " Goldstein said in her letter to the governor.

Goldstein warned that the bill could plunge the city into " prolonged,

extensive " litigation and that it runs counter to how the city wants to settle

exposure claims stemming from the 9/11 aftermath.

Goldstein said the city is currently lobbying for Congress to reopen the

federal September 11th Victim Compensation Fund to provide " fast, fair and

certain relief to the workers and area residents who demonstrate that they

were injured as a result of the terrorist attack. "

The fund, which was essentially closed in 2004, resulted in the payment of

$7 billion to the families of the victims of 9/11. It was administered by

attorney Feinberg.

Meanwhile Southern District Judge Alvin K. Hellerstein has before him

litigation brought by some 11,000 workers who claim injuries from exposure to

hazardous substances during the rescue, recovery and cleanup of the site.

Hellerstein and two special masters are in the early stages of identifying the

most severe cases _in hopes of finding a template_

(http://www.law.com/jsp/nylj/PubArticleNY.jsp?id=1202428561922) that can lead

to settlements.

Congress mandated that all 9/11 exposure claims be heard in federal court.

However, claims still had to be filed in a timely manner and meet other

state court rules in order to be included in the Southern District litigation.

Recently, Hellerstein dismissed more than 700 claims by recovery workers

against New York City and the Battery Park City Authority because they were

not filed in a timely matter. The city had planned to seek dismissal of

another 3,000 claims on similar grounds but had not acted before Paterson

signed the measure reviving those lawsuits.

'A MATTER OF FAIRNESS'

Goldstein argued that the claims revived by the state legislation " would be

harder than the average claim to defend, because the facts relevant to the

claims occurred long ago, and evidence of the claims will be extremely

difficult, if not impossible to obtain. Indeed the very purpose of a time

limitation on these claims is to require putative plaintiffs to come forward

within a reasonable time, so that the City has an opportunity to evaluate the

claim on the basis of a factual record. "

She placed the city's potential liability at hundreds of millions of

dollars from the bill signed by Paterson " at a time when the City budget is

under

great strain. "

Spano said he was aware of the mayor's opposition to his bill and of the

possible fiscal implications. His memo to the Legislature on the measure

characterized its fiscal implications as " unknown. "

But Spano said the new law is a " matter of fairness " toward people who

responded selflessly and in good faith to the emergency. He said the burden

would still be on people filing suit in the newly created window to show a

link between their injuries and their exposure to the site.

Neither Bloomberg nor Paterson's offices responded to requests for comment

on the governor's recommendation.

Paterson issued a one-sentence announcement of his action, included among

his approvals of about 60 bills. He did not issue a more detailed memorandum

indicating that there was any opposition to the bill.

In addition to the World Trade Center site itself, the new law also covers

those who worked at the Fresh Kills landfill on Staten Island following

9/11 as well as the city morgue, the temporary morgue established on the West

Side of Manhattan and on the barges that ran between the West Side and

Fresh Kills.

The debris from the trade center was sorted through by authorities at Fresh

Kills.

Spano and -Cousins dubbed their bill " Jimmy Nolan's Law. "

Nolan, a Yonkers carpenter, was working at New York University when he

rushed to the World Trade Center site on 9/11. He slept at the site for three

weeks, volunteering his services for rescue and recovery work.

Nolan is seeking to file a claim for the skin allergies and lung problems

he claims to have developed from his exposure to dangerous substances at the

site.

According to Nolan, he spends $200 a month out of pocket on medications to

treat his conditions.

-Cousins said yesterday her sponsorship of the bill in the Senate

was largely based on her concern for Nolan, a constituent, and the

" heart-wrenching " struggles he has faced because of his efforts to help out

after the

Trade Center towers were destroyed.

HEALTH IMPACTS REPORT

The Bloomberg administration yesterday released _the second annual results

of the World Trade Center Medical Working Group_

(http://www.ci.nyc.ny.us/html/om/pdf/2009/pr418-09_report.pdf) , which is

tracking the longer-term

medical effects of the attacks.

The working group concluded that it remains unclear whether there is

relationship between exposure to dust and other substances from the towers and

chronic health conditions such as cancer. It said it would continue to

research possible links.