CTQ-2017-00001 Court of Appeals STATE OF NEW YORK IN RE: WORLD TRADE CENTER LOWER MANHATTAN DISASTER SITE LITIGATION STANISLAW FALTYNOWICZ, et al., Appellants, STATE OF NEW YORK, Intervenor-Appellant, against BATTERY PARK CITY AUTHORITY, et al., Respondents. (Additional Caption on the Reverse) >> >> BRIEF FOR APPELLANTS GREGORY J. CANNATA & ASSOCIATES, LLP Attorneys for Appellants Stanislaw Faltynowicz, Lucyna Foremska, Ruben Acosta, Vladmir Akoulov, Waldemar Balcer, Joaquin Campuzano, Henryk Ciborowski, Jan Dobrowolski, Marek Glowaty, Eugeniusz Jastrzebowski, Zbigniew Kucharski, Maria Moreno, Irena Perzynaska, Marian Retelski and Dariusz Wszolkowski, Boguslaw Zalewski 60 East 42nd Street, Suite 932 New York, New York 10165 212-553-9205 On Questions Certified by the United States Court of Appeals for the Second Circuit (USCOA Docket No. 15-2181(L)) To Be Argued By: Gregory J. Cannata Time Requested: 30 Minutes SANTIAGO ALVEAR, Appellant, STATE OF NEW YORK, Intervenor-Appellant, against BATTERY PARK CITY AUTHORITY, Respondent. PETER CURLEY, MARY ANN CURLEY, Appellants, STATE OF NEW YORK, Intervenor-Appellant, against BATTERY PARK CITY AUTHORITY, Respondent. i TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................................................... iii INTRODUCTORY STATEMENT ........................................................................... 1 JURISDICTIONAL STATEMENT .......................................................................... 2 QUESTIONS PRESENTED ...................................................................................... 2 STATEMENT OF FACTS ........................................................................................ 3 I. The Plaintiffs ........................................................................................ 3 II. Jimmy Nolan’s Law ............................................................................ 5 III. Procedural History .............................................................................. 7 ARGUMENT ............................................................................................................. 8 The Jimmy Nolan’s Law Does Not Violate Battery Park City Authority’s Due Process Under The New York State Constitution ......... 8 A. The Robinson Standard Is The Appropriate Standard ................ 8 B. The Jimmy Nolan’s Law Is “Reasonable” Under Robinson .................................................................................... 11 C. The Gallewski Decision ............................................................ 13 i. Exceptional Circumstances Were Present To Necessitate The Revival Statute .................................. 13 ii. The Jimmy Nolan’s Law Sought To Remedy A Serious Injustice ........................................................... 16 a. CPLR 214-c Did Not Protect Plaintiffs From A Serious Injustice .............................................. 16 ii b. The Fact That Plaintiffs Were Able To Bring Lawsuits Against Private Defendants Does Not Cure The Serious Injustice ............................ 18 CONCLUSION ........................................................................................................ 20 CERTIFICATE OF COMPLIANCE ....................................................................... 21 iii TABLE OF AUTHORITIES Cases Barrett v. Wojtowicz, 66 A.D.2d 604, 414 N.Y.S.2d 350 (2d Dep’t 1979) ......................................... 16 Gallewski v. H. Hentz & Co., 301 N.Y. 164 (1950) .............................................................................. 1, 8, 9, 10 Hymowitz v. Eli Lilly & Co., 73 N.Y.2d 487 (1989) ............................................................................ 11, 13, 15 In re World Trade Ctr. Lower Manhattan Disaster Site Litig., 44 F. Supp. 3d 409 (S.D.N.Y. 2014) ............................................................... 3, 5 Kwasnik v. 160 Water St., Inc., 2014 U.S. Dist. LEXIS 177431 (S.D.N.Y. Sept. 30, 2014) ................................. 4 McCann v. Walsh Constr. Co., 282 A.D. 444 (3rd Dept. 1953) aff’d 306 N.Y. 904 (1954) ................... 10, 15, 16 McGowan v. N.Y. Tel. Co., 544 N.Y.S.2d 423, 144 Misc. 2d 625 (1989) .................................................... 16 Robinson v. Robins Dry Dock & Repair Co., 238 N.Y. 271, 144 N.E. 579 (N.Y. 1924) .............................................. 1, 8, 9, 11 Federal Statutes 42 U.S.C. § 201 (2012) .......................................................................................... 15 49 U.S.C. § 40101 (2012) ........................................................................................ 4 49 U.S.C. § 1971 ...................................................................................................... 5 State Statutes N.Y. C.P.L.R. 214-c ......................................................................................... 16, 18 N.Y. C.P.L.R. 214-c(3) ............................................................................................ 5 N.Y. Gen. Mun. Law § 50-e .............................................................................. 5, 17 N.Y. Gen. Mun. Law § 50-i ................................................................................. 1, 6 1 INTRODUCTORY STATEMENT The United States Court of Appeals for the Second Circuit has certified two questions to this Court. This brief will address the second certified question only: whether the standard articulated in Robinson v. Robins Dry Dock & Repair Co. (144 N.E. 579 [1924]) versus the standard subsequently adapted from Gallewski v. H. Hentz & Co. (93 N.E.2d 620 [1950]) govern a due process challenge under the New York State Constitution to a claim-revival statute. The plaintiffs-appellants assert that the Robinson decision is the appropriate standard. The District Court utilized the Gallewski decision in analyzing a due process claim against the Jimmy Nolan’s Law, which was a 2009 amendment to New York General Municipal Law §50-i. The Jimmy Nolan’s Law revived time-barred claims against municipalities and public corporations brought by individuals who sustained injury while engaged in the clean-up and recovery efforts in Lower Manhattan following the World Trade Center attacks on September 11, 2001. The Legislature recognized the necessity for this revival statute to ameliorate the injustice caused by the short notice of claim requirements, the plaintiffs-appellants’ latent injuries, the inaccurate assurances of the safety of the plaintiffs-appellants’ working environment by both the government and the owners and general contractors of the buildings in which they worked, and the lengthy period of time that causation between their injuries and their exposure to the World Trade Center dust was under scrutiny. 2 In finding that the Jimmy Nolan’s Law violated the Battery Park City Authority’s due process rights, the District Court improperly relied upon and misapplied the Gallewski decision. Had the District Court properly applied the Robinson decision, it would have found that the Jimmy Nolan’s Law was a “reasonable” remedy for a situation that called for a remedy. However, even under the Gallewski decision, the Jimmy Nolan’s Law still survives legal scrutiny. JURISDICTIONAL STATEMENT This Court has jurisdiction under 22 N.Y.C.R.R. § 500.27. QUESTIONS PRESENTED Whether the standard articulated in Robinson v. Robins Dry Dock & Repair Co. (144 N.E. 579 [1924]) versus the standard subsequently adapted from Gallewski v. H. Hentz & Co. (93 N.E.2d 620 [1950]) govern a due process challenge under the New York State Constitution to a claim-revival statute. Answer: The standard set forth in Robinson is the appropriate standard to apply to a due process challenge to a claim-revival statute. 3 STATEMENT OF FACTS I. THE PLAINTIFFS The collapse of the World Trade Center Towers following the September 11, 2001 terrorist attack engulfed Lower Manhattan in a fine, highly alkaline dust comprised of 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., 44 F. Supp. 3d 409, 417 (S.D.N.Y. 2014). This dust permeated the buildings of Lower Manhattan through damaged facades, open windows, and ventilation systems. In some locations, the dust was several feet thick. Id. In the days, weeks and months following September 11, 2001, the plaintiffs- appellants, primarily members of Local 78, were employed to remediate the buildings surrounding Ground Zero of this toxic dust so that the buildings could become operational again and business could swiftly return to Lower Manhattan. Id. at 417. In the years following their work in Lower Manhattan, the plaintiffs- appellants developed numerous injuries from their exposure to this toxic dust including permanent respiratory, gastrointenstinal, and psychological injuries, and cancers. These injuries were slow in forming, often beginning with a benign cough or runny nose, and subsequently developed into serious Asthma, RADS (Reactive 4 Airways Disease), COPD (Chronic Obstructive Pulmonary Disease), Chronic Rhinosinusitis, GERD (Gastric-Esophageal Reflux Disease), and Cancer. Kwasnik v. 160 Water St., Inc., 2014 U.S. Dist. LEXIS 177431*92, 96, 99-102 (S.D.N.Y. Sept. 30, 2014). Due to the latent nature of their injuries, the plaintiffs were often not correctly diagnosed with their serious and permanent injuries until years later. The plaintiffs-appellants commenced lawsuits for their injuries in the United States District Court of the Southern District of New York pursuant to the Air Transportation Safety and System Stabilization Act, which vested the Southern District of New York with the exclusive jurisdiction over all actions which resulted from the September 11, 2001 terrorist attacks. Pub L. 107-41, § 408(b)(3), 115 Stat. 230 (2011), codified at 49 U.S.C. § 40101. Grounded in the New York State Labor Law sections 200 and 241(6), and common law negligence, these lawsuits were brought against the owners of the buildings in which the plaintiffs worked, as well as the environmental consultants and general contractors that directed and controlled their work (see by way of example Vol. I: A42-A100). These lawsuits were consolidated into the 21 MC 102 docket before the Honorable Alvin K. Hellerstein. The plaintiffs-appellants alleged and presented evidence that the defendants failed to provide them with a safe work environment, and the proper and sufficient personal protective equipment, including respirators and replacement filters to protect them from the toxic World Trade Center dust within which they were forced 5 to work (see by way of example Vol. I: A42-A100). For example, at various times during their work in Lower Manhattan, workers were wrongly told that respirators were not required, or that the dust was safe to breathe and handle without the proper personal protective equipment. In the instances where workers did use respirators, they were not provided with the proper type of respirator and filters for the fine dust they were working with, and were given an insufficient number of replacement filters each day, so that the respirators were completely ineffective against the dangerous dust. 44 F. Supp. 3d at 418-26. II. JIMMY NOLAN’S LAW As the landowner of approximately 92-acres of land in the western portion of Lower Manhattan known as Battery Park City, the Battery Park City Authority (hereinafter “BPCA”) was a named defendant for several buildings on that site. BPCA was created by the New York State Legislature in 1968 as a public benefit corporation. Public Corporations Law §1971. New York General Municipal Law §50-e governs lawsuits against municipalities and public corporations, such as BPCA. This statute places a burden on a plaintiff, requiring him or her to serve a Notice of Claim upon a public defendant within 90 days of the accrual of his or her action as a condition precedent to bringing 6 a lawsuit.1 If a plaintiff fails to timely serve a Notice of Claim, he or she may petition a court for leave to file a late Notice of Claim. It is within the court’s discretion to grant such leave. N.Y. Gen. Mun. Law §50-e(5)(McKinney’s 2008). The failure to timely serve a Notice of Claim or obtain a court order granting leave to file a late Notice of Claim will forever bar a plaintiff from commencing a lawsuit against the public defendant. The latent nature of the World Trade Center related injuries, the fact that causation between those injuries and the workers’ exposure to the World Trade Center dust was initially disputed, and the extraordinarily short period of time to file a notice of claim time resulted in the time-barring of thousands of workers’ claims against municipalities and public corporations. Recognizing the inherent unfairness in these workers’ claims being time- barred, the sacrifice that these workers made in their effort to return Lower Manhattan to a safe habitable space, and the latent nature of the workers’ serious injuries, in 2009 the New York State Legislature unanimously voted to amend New York General Municipal Law §50-i. Commonly referred to as Jimmy Nolan’s Law, the amendment to §50-i revived the period of time for individuals to commence World Trade Center-related lawsuits against municipalities and public corporations 1 According to CPLR 214-c(3), the date of accrual for the plaintiffs-appellants’ latent injuries was “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”. 7 for one year. See “Justification” of the New York Assembly Memorandum In Support of Legislation, Bill A7122C, 2009. The Bill was signed into law by Governor David Patterson on September 16, 2009 and time-barred lawsuits could be commenced against municipalities and public corporations until September 16, 2010 (Vol. II: 801). III. PROCEDURAL HISTORY The plaintiffs-appellants served Notice of Claims on BPCA between August 5, 2010 and September 9, 2010, and timely commenced their lawsuits against BPCA between September 9, 2010 and September 14, 2010. In June 2014, BPCA moved for summary judgment against eight plaintiffs that had been designated by the District Court as trial plaintiffs. BPCA argued that the Jimmy Nolan’s Law violated its due process, and accordingly, the Notices of Claim and Complaints filed against it were improper (Vol. I: A239). The Court granted BPCA’s motion for summary judgment, holding that the Jimmy Nolan’s Law failed to meet the standard for a constitutional revival statute in that the Legislature’s rationales for enacting the law were not “exceptional circumstances” and that there was no “lingering injustice” to be corrected, which justified the revival statute (Vol. II: A776). In March 2015 BPCA moved for summary judgment against the remaining 171 plaintiffs with claims against it on the same constitutional grounds (Vol. I: A656). The District Court granted this motion as well (Vol II: A793). 8 In the Spring of 2015, following over a decade of protracted litigation, the plaintiffs-appellants finally reached settlement agreements with the defendants, with the exception of BPCA2. Judge Hellerstein approved the settlements in a June 9, 2015 Order and dismissed the plaintiffs-appellants’ complaints (Vol. I: A665). Accordingly, the plaintiffs-appellants appealed the District Court’s December 8, 2014 and April 13, 2015 Orders as to their claims against BPCA for their work at several buildings including 345 Chambers Street, 334 Greenwich Street, 333 Rector Place, and 395 South End Avenue (Vol. I: A676). ARGUMENT THE JIMMY NOLAN’S LAW DOES NOT VIOLATE BATTERY PARK CITY AUTHORITY’S DUE PROCESS UNDER THE NEW YORK STATE CONSTITUTION A. The Robinson Standard Is The Appropriate Standard This Court has long held statutes which resurrect previously time-barred claims to be constitutional. Almost one century ago this Court evaluated the constitutionality of a revival statute by assessing whether the statute was a “reasonable” response to a situation that called for a remedy. Robinson v. Robins Dry Dock & Repair Co., 238 N.Y. 271 (1924). Despite the fact that this 2 Notably, the plaintiffs-appellants’ claims against BPCA for their work at the World Financial Centers and 250 South End Avenue were settled in conjunction with their settlements with the other defendants in those buildings. The plaintiffs-appellants’ claims for work conducted in those buildings are not the subject of this appeal. 9 “reasonableness” standard has never been overruled by this Court, the district court in the instant matter applied the “exceptional circumstances” standard, attributed to Gallewski v. Hentz & Co, 301 N.Y. 164, 175 (1950), to hold that the Jimmy Nolan’s Law violated BPCA’s right to due process under the New York State Constitution. The district court improperly relied upon Gallewski. In Robinson v. Robins Dry Dock & Repair Co., 238 N.Y. 271 (1924), this Court upheld a one-year statute reviving workers’ time-barred claims. There, the plaintiff’s deceased spouse was killed in the course of his employment on May 20, 1918. The plaintiff applied for and received Workers’ Compensation benefits until October 15, 1920, when the benefits were stopped following a United States Supreme Court decision that rendered such benefits unconstitutional. Because the Workers’ Compensation benefits were no longer available to her, the plaintiff commenced a lawsuit for her husband’s death in December 1920, after the expiration of the two year wrongful death statute of limitations. While the litigation was pending on appeal, the New York Legislature enacted a law reviving the previously time-barred claims for one year. The Court reasoned that the revival statute was Constitutional in that it was a “reasonable” response to an apparent injustice which “call[ed] for [a] remedy” Id. at 279-280. In 1950, this Court revisited the constitutionality of revival statutes in Gallewski v. Hentz & Co, 301 N.Y. 164, 175 (1950). There, the plaintiff decedent 10 was a resident of the Netherlands and was deported to a concentration camp in May 1940. Two weeks after his deportation, his securities portfolio was liquidated by his brokerage firm without his consent. The administrator of the decedent’s estate brought an action against the brokerage firm after the statute of limitations expired. While the lawsuit was pending, the Legislature amended the CPLR to revive for one year the time-barred lawsuits of residents of Axis-occupied countries. Given the “upheaval of unparalleled magnitude” that was Europe during the War, the Court held that the revival statute was constitutional: To permit the Statute of Limitations to run against their claims during the continuance of such inability would not accord with elementary notions of justice and fairness. Like Robinson v. Robins Dry Dock & Repair Co. (supra), this is a case ‘where both instinct and reason revolt at the proposition that redress for a wrong must be denied because the Legislature may not remove a statutory bar which has conferred an immunity which is contrary to all prevailing ideas of justice.’ (P. 279.) Here, as in the Robinson case, the ‘extension of the time to bring * * * action was reasonable and this exercise of the legislative power should not be declared invalid because of a constitutional limitation of doubtful application.’’ 301 N.Y. at 175 (emphasis added). The Court relied upon and analyzed the revival statute under Robinson, determining that it was “reasonable” and accordingly constitutional. Although the Court’s decision clearly found that the statute was “reasonable” under Robinson, in dicta, it interpreted Robinson “as holding that the Legislature may constitutionally revive a personal cause of action where the circumstances are exceptional and are such as to satisfy the court that serious injustice would result to 11 plaintiffs not guilty of any fault if the intention of the Legislature were not effectuated” (emphasis added). Despite the fact that the Court’s interpretation of Robinson was dicta, subsequent courts, including the District Court here, have seemingly adopted this higher standard. See McCann v. Walsh Constr. Co., 282 A.D. 444 (3rd Dept. 1953). However the Court never overruled Robinson and implicitly relied upon its holding. Robinson is still good law. Almost forty years later, in Hymowitz v. Eli Lilly & Co., 73 N.Y.2d 487 (1989), the Court of Appeals questioned whether its interpretation of Robinson set forth in Gallewski was the appropriate standard to use in deciding the constitutionality of an one-year statute reviving the time-barred DES actions. The Court of Appeals ultimately chose not to determine this issue, however, because it held that the revival statute at issue met the more stringent Gallewski decision. Id. Here, the District Court analyzed the Jimmy Nolan’s Law under the Gallewski decision. It is the plaintiffs-appellants’ position that the Court abused its discretion in failing to apply the Robinson decision. Nevertheless, the Jimmy Nolan’s Law meets either standard and survives constitutional scrutiny. B. The Jimmy Nolan’s Law Is “Reasonable” Under Robinson Under Robinson, the Jimmy Nolan’s Law is constitutional if it is a “reasonable” response to a situation calling for a remedy. Robinson v. Robins Dry Dock & Repair Co., 238 N.Y. 271 (1924). The statute clearly means this decision. 12 The New York State Legislature’s recognition of the need to remedy the unjust barring of the plaintiffs-appellants’ claims caused by the exceptional circumstances that surrounded the aftermath of the World Trade Center attacks, the latent nature of the plaintiffs-appellants’ injuries, the false reassurances of the safety of the World Trade Center dust, and the difficulties in making a causal connection between the plaintiffs-appellants’ injuries and their exposure to the World Trade Center dust within 90 days is significant. The Justification for the New York State Assembly Bill was, in part, as follows: We all know that thousands of men and women lost their lives on September 11, 2001 in the World Trade Center tragedy. In the aftermath, tens of thousands of individuals worked at the World Trade Center Site, as well as locations related to the debris removal and recovery of remains, for extensive periods of time. These men and women were advised and reassured that they were working in safe environments. Among other hazards, we know now that they suffered exposure to many types of contaminants, including caustic dust, toxic products of combustion and carcinogens. More than seven years later, thousands of World Trade Center workers have developed disabling respiratory illnesses and other injuries at rates that greatly exceed those of the general population. A number of theses affected workers are currently barred from filing a claim against the state or commencing an action against a public corporation for these injuries because the applicable period of limitation has expired. Those individuals should not be denied their rights to seek just compensation for these injuries because they were provided with incorrect information about their work conditions, did not immediately recognize the casual connection between their injuries and their exposure, or were unaware of the applicable time limitations. See the “Justification” of the New York Assembly Memorandum In Support of Legislation, Bill A7122C, 2009. 13 Of significance, the Legislature recognized that the World Trade Center injuries were unique latent injuries. Many potential plaintiffs were unaware that their symptoms would ultimately develop into chronic, severe, and life-altering conditions. These early symptoms were often dismissed or misdiagnosed by medical professionals, and the causal connection between the injuries and the plaintiffs- appellants’ exposure to the toxic dust was not widely known or accepted by the medical community. Often, the early transient symptoms experienced by some were not even the symptoms of the diseases ultimately sustained. The Legislature recognized that the plaintiffs-appellants’ failure to properly commence lawsuits within the requisite time periods was through no fault of their own. The bill passed both the Assembly and Senate unanimously. The Legislature’s response to this injustice was reasonable. The one year period of time to revive these claims was limited in both scope and duration, and was reasonable and in line with the revival statutes upheld in Robinson, Gallewski, and Hymowitz. C. The Gallewski Decision i. Exceptional Circumstances Were Present to Necessitate the Revival Statute In Hymowitz, the Court of Appeals held that the one year revival statute met the Gallewski “exceptional circumstances” standard because, among other reasons, the latent nature of the DES injuries was well known at the time the statute was 14 enacted and the exposure rule prevented individuals from timely commencing claims. As in Hymowitz, the plaintiffs-appellants here suffer from latent injuries caused by the exposure to toxic substances which resulted, in part, in the failure of the plaintiffs-appellants from timely serving their notices of claim. The Jimmy Nolan’s Law is one only example of a statute enacted to remedy the “exceptional circumstances” which resulted in the time-barred claims of individuals suffering from the latent World Trade Center injuries. In 2013, the New York State Legislature revived the time limitations for workers injured following their exposure to the World Trade Center dust to file for Workers’ Compensation benefits.3 Similarly, in January 2011, President Barack Obama signed into law the “Zadroga Act”, which created the World Trade Center Health Program and reopened the September 11th Victim Compensation Fund. (See Public Law 111-347, 124 STAT.3623, 42 USC 201). This reopening of the Victim Compensation Fund, a so- called “revival” of the original Victim Compensation Fund which was in existence from 2001 to 2003, recognized the need to reopen the Victim Compensation Fund to those individuals who were unable to participate in the original Fund due to the latent nature of their World Trade Center-related illnesses. 3 http://www.wcb.ny.gov/content/main/SubjectNos/sn046_651.jsp (accessed May 2, 2017). 15 Here, the District Court ignored the determination of the New York State Legislature and United States Congress that there were exceptional circumstances warranting revival statutes, and found none existed, albeit without any legitimate justification. As previously stated, the exceptional circumstances present here are akin to the exceptional circumstances and the one-year revival for DES claims found to be constitutional by the New York State Court of Appeals in Hymowitz. That Court held that: The latent nature of DES injuries is well known, and it is clear that in the past the exposure rule prevented the bringing of timely actions for recovery. Thus we believe that exceptional circumstances are presented, that an injustice has been rectified, and that the requirements of Gallewski v. Hentz & Co. (supra) have been met. Hymowitz, 73 N.Y.2d at 514 (emphasis added). The exceptional circumstances caused by the latent nature of the injuries present here are also similar to the exceptional circumstances present in Matter of McCann v. Walsh Construction Co., 306 N.Y. 904 (1954). There, the New York State Court of Appeals affirmed a Third Department decision upholding the removal of the time bar to certain worker’s compensation claims for caisson disease, an illness caused by exposure to compressed air and other latent diseases. Due to the nature of the disease, injured workers were unable to discern the nature of their illness or its causation within the statutory one-year period of time. 16 The Court of Appeals found that the latent nature of the injury constituted an exceptional circumstance to reviving the time. Id. at 449. The Court deemed the legislation a “classic instance of the granting of legislative relief in a situation where the arbitrary application of the [s]tatute of [l]imitations would work injustice” as, “in the case of a disease of an insidious character, the effects of which might be latent or long delayed, the right to compensation might be barred by the operation of the Statute of Limitations even before the claimant was aware of the fact that he had the disease.” Id. at 450 (emphasis added). See also Barrett v. Wojtowicz, 66 A.D.2d 604, 614, 414 N.Y.S.2d 350 (2d. Dept. 1979); McGowan v. New York Tel. Co., 544 N.Y.S.2d 423, 144 Misc. 2d 625 (Supt Ct., NY County, June 21, 1989). Finally, the questionable causation and reassurances of the safety of the dust all constitute exceptional circumstances under Gallewski. ii. The Jimmy Nolan’s Law Sought To Remedy A Serious Injustice a. CPLR 214-c Did Not Protect Plaintiffs From A Serious Injustice The District Court also improperly determined that the plaintiffs-appellants did not require protection from a “serious injustice” (Vol. II: A790). The basis for this finding was the court’s determination that §214-c of the New York Civil Practice Law and Rules (“CPLR”), which provides that statutes of limitations and the period of time to file notices of claim run from the date of discovery of a latent injury, fully protected the plaintiffs-appellants from any “serious injustice”. However, the Court 17 failed to recognize that despite the protections afforded to plaintiffs under CPLR §214-c, those protections were eviscerated by the short 90 day notice of claim requirements of GML §50-e. The very nature of this serious injustice is demonstrated by the District Court’s own actions. In 2009, the District Court dismissed over 600 complaints in the 21 MC 102 Docket for their failure to file timely notices of claim as against BPCA (Vol. I: A407). Had CPLR §214-c afforded these plaintiffs the widespread protections that the District Court believed that it did, those plaintiffs’ claims would have been timely. The Jimmy Nolan’s Law was required to protect those plaintiffs from the “serious injustice” that ensued. In fact, after the Jimmy Nolan’s Law was enacted into law, more than 170 new lawsuits were brought against BPCA (this does not include the scores of lawsuits commenced against other municipal defendants not the subject of the instant appeal). The Jimmy Nolan’s Law alone provided those plaintiffs with the legal avenue to bring their lawsuits for otherwise untimely claims; CPLR §214-c did not “protect” their claims. CPLR §214-c was a recognition by the Legislature that statute of limitations cannot begin to run until an injury is discovered, which may be years after exposure. It solved only one element of the serious injustice caused by latent injuries. The Jimmy Nolan’s Law solved the second: a too short notice of claim requirement. The 18 one-year revival was independent of CPLR §214-c and was a necessary protection from the “serious injustice” that remained under CPLR §214-c. b. The Fact That Plaintiffs Were Able To Bring Lawsuits Against Private Defendants Does Not Cure The Serious Injustice In further support of its determination that there was no “serious injustice” to be cured, the District Court distinguished the instant set of facts from the other New York State cases where revival statutes were found to be constitutional and determined that unlike here, there was a “practical and total inability to commence [an] action” (Vol. II: A790)(quoting Gallewski v. Hentz & Co., 301 N.Y. at 175). Although the plaintiffs-appellants may have had the opportunity to commence a lawsuit against private defendants, the short 90 day notice of claim requirement meant that the plaintiffs-appellants did not have the opportunity to commence a lawsuit against the BPCA, the landowner of the property on which they were injured with a non-delegable duty under the New York State Labor Law to ensure their safety, and a party legally responsible for their injuries. Here, the Legislature properly exercised its authority in enacting the revival statute. The intended beneficiaries of the Jimmy Nolan’s Law were those who worked in Lower Manhattan following the September 11, 2001 terrorist attacks and “were advised and reassured that they were working in safe environments”, New York Assembly, Bill A7122C, 2009, when in fact they were exposed to multiple contaminants in the caustic dust. The Jimmy Nolan’s Law remedied the wrong 19 resulting from the latent injuries, the uncertain causation, and the short time limitations, in order to ensure that those workers would not be denied compensation “simply because they were provided with incorrect information about their work conditions, did not immediately recognize the causal connection between their injuries and their exposure, or were unaware of the applicable time limitations.” Id. Plaintiffs-appellants’ failure to timely file notices of claim against the BPCA was through no fault of their own. The District Court did not have a basis to subvert the determination and rationale of the New York State Legislature in enacting the Jimmy Nolan’s Law wherein the Legislature found exceptional circumstances to be present. 20 CONCLUSION The District Court should have applied the “reasonable” standard under Robinson to the Jimmy Nolan’s Law. The Jimmy Nolan’s Law does not violate Battery Park City Authority’s due process under the New York State Constitution, and plaintiffs-appellants’ Complaints should be reinstated as against BPCA. Dated: New York, New York June 15, 2017 Respectfully Submitted, GREGORY J. CANNATA & ASSOCIATES, LLP - ROBERT A. GROCHOW, P. C. Attorneys for Plaintiffs-Appellants By: /s/ Gregory J. Cannata Gregory J. Cannata 60 East 42nd Street, Suite 932 New York, New York 10165 (212) 553-9205 21 CERTIFICATE OF COMPLIANCE I hereby certify pursuant to 22 NYCRR § 500.13(c) that the foregoing brief was prepared on a computer. A proportionally spaced typeface was used, as follows: Name of typeface: Times New Roman Point size: 14 Line spacing: Double The total number of words in the brief, inclusive of point headings and footnotes and exclusive of the statement of the status of related litigation; the corporate disclosure statement; the table of contents, the table of cases and authorities and the statement of questions presented required by subsection (a) of this section; and any addendum containing material required by § 500.1(h) is 4,408. Dated: New York, New York June 15, 2017 Respectfully Submitted, GREGORY J. CANNATA & ASSOCIATES, LLP - ROBERT A. GROCHOW, P. C. Attorneys for Plaintiffs-Appellants By: /s/ Gregory J. Cannata Gregory J. Cannata 60 East 42nd Street, Suite 932 New York, New York 10165 (212) 553-9205
