At issue is 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.
For this reason, the State legislature in 2009 passed (and then-Governor David Paterson signed) Jimmy Nolan’s Law, 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 settled in the years that followed.
But more than a dozen remain pending. The group whose action was green-lighted by the federal court consists of workers who helped to clean Stuyvesant High School in the months before it reopened, during which time they were exposed to asbestos, and other environmental hazards.
These laborers were hired by contractors, who had been retained by the City’s Department of Education to decontaminate the school. Although this group has already received compensation from the City for their injuries (as a result of separate legal actions), a procedural technicality leaves open the possibility that they can still seek redress against defendants who were not party to the original suit.
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This claim is based on the Authority’s role as the landlord of the Stuyvesant High School, because the City leases from the BPCA the ground on which the school sits. The plaintiffs argue that the Authority was negligent by not warning workers of the hazards they faced, and by not providing them with appropriate equipment. In one respect, this allegation is counterintuitive, because the BPCA did not hire or supervise the workers, or have any operational connection to them. But the Authority is legally entwined in the case, because the City rents from it the land on which the school is built.
The Authority responded by asking a succession of State courts to quash the suit, arguing that Jimmy Nolan’s Law was illegal under the State Constitution, regardless of what the legislature said. The BPCA’s position appears 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 prevail, the BPCA has no financial exposure, since the terms of all of its ground leases transfer liability to the lessees (in this case, the City).
The legal standard in cases that seek an exception to the statue of limitations has traditionally hinged upon “exceptional circumstances” and a “lingering injustice.” The BPCA argued that, as a public-benefit corporation, it was immune to such suits. Finally, the BPCA also argued that, as a hybrid entity that possesses aspects of both a State agency and a corporation, it was exempt from a legal principle that bars State agencies from challenging the Constitutionality of laws that affect them.
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.
Last year, 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.
On June 6, the United States Court of Appeals Second Circuit (based in Lower Manhattan) sided with the workers, writing 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 clears the way for a suit by 18 workers to proceed, but appears to be the tail end of a much-larger wave of litigation that has mostly run its course.