Another 9/11 Notice of Claim Issue

Just last week I posted about a First Department case decided on October 3, 2006, Matter of Goffredo, in which the Court denied the petitioner's application for leave to serve a late notice of claim for injuries that were sustained during 9/11 clean up efforts.

That case has already been cited in another case, Matter of Auditore v. City of New York, 2006 NY Slip Op 26405, a New York County Supreme Court matter. 

In Auditore, the petitioner also sought leave to serve a late notice of claim relating to injuries sustained as a result of exposure to toxic substances during clean up efforts at Ground Zero.  Ultimately, the Court concluded that it was bound by the Goffredo decision and denied the petitioner's application, although the Court noted that but for Goffredo, its inclination would have been to grant the petition:

The investigation of environmental concerns by various levels of government, and the intense media attention and public discussion of the working conditions, air quality and the composition of World Trade Center debris and the smoke and fumes emanating from the debris, bely the City's contention that it was surprised by petitioner's notice of claim and that it did not obtain actual knowledge of the nature of petitioner's claims respecting the City's alleged acts and omissions.General Municipal Law § 50-e (5) should not operate as a device to defeat the rights of persons with legitimate claims... But for the Appellate Division's decision in Matter of Goffredo...this Court would have exercised its discretion to grant petitioner such leave.  (Internal citations and quotations omitted).

Interestingly, the Court noted the following very relevant piece of information that was not mentioned in the Goffredo decision--that a federal statute, the Air Transportation Safety and System Stabilization Act of 2001 (ATSSSA) applied to all claims of this nature: 

By enacting the Air Transportation Safety and System Stabilization Act of 2001 (ATSSSA), Congress created a federal cause of action for 9/11-related claims of toxic exposure as an exclusive remedy, and vested the federal District Court in the Southern District of New York with exclusive jurisdiction over these exposure claims."See 49 USC § 40101 note. In McNally v Port Authority of New York & New Jersey (In re: WTC Disaster Site) (414 F3d 352 [2d Cir 2005]), the United States Court of Appeals for the Second Circuit held that the ATSSSA preempted state law remedies for respiratory injuries resulting from exposure to toxic substances from Ground Zero.

The Court noted that pursuant to the ATSSSA, the applicable federal statute of limitations of 4 years might very well apply in the case at hand and that the Southern District had exclusive subject matter  jurisdiction over this case.   Nevertheless, the Court felt constrained to follow the precedent set in Goffredo and denied the petitioner's application, but noted that:

Should petitioner pursue a plenary action in federal court without a notice of claim, and should the federal District Court determine that no notice of claim is required, there would still remain a question of whether this Court's determination would have any preclusive effect in federal court. If no notice of claim were required, then no application for leave to serve a late notice of claim would be necessary, thus rendering this proceeding, and the City's objections, academic. For the reasons addressed above, that issue would be appropriately raised in the federal court.

Yet another very interesting case involving allegations of injuries sustained at Ground Zero.  Hopefully the petitioner will be able to successfully pursue a claim in federal court.