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The pulverized World Trade Center blankets Lower Manhattan
on September 11, 2001.
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United States District Court judge Alvin Hellerstein has dismissed more than 100 suits against the Battery Park City Authority (BPCA), brought by rescue, recovery and cleanup workers who were made sick by exposure to toxins while laboring in the community during the weeks and months that followed the terrorist attacks of September 11, 2001.
These actions were among the last of approximately 12,000 similar lawsuits, which alleged that the Authority failed to provide safe working conditions, necessary safety equipment, or adequate warnings of potential danger for personnel who helped to decontaminate Stuyvesant High School, or else used the building as a staging facility for cleanup work within the World Trade Center complex. (The suits hinged on the fact that the City leases from the BPCA the land on which Stuyvesant is located.)
Almost all of these workers had already been compensated for whatever injuries they have suffered, by a 2010 settlement, awarding them $712 million. On this basis, the BPCA argued that the suits against it should be dismissed, pointing toward a clause in that settlement that specifically banned any recipient from recovering damages more than once. The Authority also argued that the City had direct control over the Stuyvesant high School building, and all cleanup work within the World Trade Center complex. The BPCA additionally pointed to agreements it has with the City, requiring the latter to assume all liability in such cases.
Judge Hellerstein found these arguments persuasive, writing that “plaintiffs have already received compensation in full satisfaction of their claims against the City, the WTC, and its indemnitees. Plaintiffs stand to gain nothing further from further proceedings, even if successful, against BPCA,” and noting that the cleanup workers, “by their own earlier settlement agreement have no potential for additional recovery in the present action.”
This ruling amounts to a reversal of another opinion by the same Federal Court, issued in June, 2018, which allowed the same group of lawsuits to move forward. That ruling argued that, “the BCPA’s logic… would permit a public entity to challenge the constitutionality of any law that could potentially expose it to greater liability.” This was a reference to the BPCA’s argument that a State law, which originally allowed the suits to move forward (in spite of having passed the statute of limitations that would ordinarily apply), violated the State’s Constitution.
That statute is known as Jimmy Nolan’s Law, named for a carpenter employed by New York University who rushed to the World Trade Center site in the aftermath of the attacks to offer assistance. Mr. Nolan remained at Ground Zero for three weeks. Several years later, he developed serious respiratory problems, and the need for costly medications that imposed a crippling financial burden on Mr. Nolan and his family. The delay between his exposure and the onset of these symptoms put Mr. Nolan into the so-called “second wave” of victims, for whom health impacts did not begin to appear until months or years after exposure. But under the law that normally applies in such cases, people seeking compensation have only 90 days to file suit, a cut-off that is sometimes extended to 15 months. Under either of these deadlines, Mr. Nolan (and workers like him) were legally barred from seeking compensation.
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For this reason, the State legislature in 2009 passed (and then-Governor David Paterson signed) a new measure, which carved out an exception to that statute of limitations. Once the law had gone into effect, more than 12,000 former Ground Zero workers filed suit against multiple defendants, including the BPCA. The vast majority of these suits were resolved by the 2010 settlement.
The Authority responded by asking a succession of State courts to quash the suits, arguing that Jimmy Nolan’s Law was illegal under the State Constitution, regardless of what the legislature said. The BPCA’s position appears to have been motivated not by any desire to deprive September 11 survivors of benefits to which they may be entitled, but by a fiduciary obligation to conserve assets until and unless legally required to pay a claim. This is underscored by the fact that, even if the plaintiffs had prevailed, the BPCA had no financial exposure, since the terms of all of its ground leases transfer liability to the lessees (in this case, the City).
A series of rulings in both State and federal courts mostly upheld in the BPCA’s position, in spite of the fact that, in 2014, then-State Attorney General Eric Schneiderman took the step of filing a court brief siding with the supporters of Jimmy Nolan’s Law and against the BPCA.
In 2017, however, the State’s Court of Appeals sided against the BPCA and with the plaintiffs under Jimmy Nolan’s Law, finding that the measure was “a reasonable response in order to remedy an injustice.” But the Authority continued to press its case in federal court. This led to the June, 2018 federal ruling that allowed the suits to proceed. But those actions came to an end with Judge Hellerstein’s dismissal, which was issued on August 30.