NO. CTQ-2017-00001 TO BE ARGUED BY: LUKE NIKAS
STATE OF NEW YORK COURT OF APPEALS
IN RE: WORLD TRADE CENTER LOWER MANHATTAN DISASTER SITE
LITIGATION
STANISLAW FALTYNOWICZ, LUCYNA FOREMSKA, RUBEN ACOSTA, VLADMIR
AKOULOV, WALDEMAR BALCER, JOAQUIN CAMPUZANO, HENRYK CIBOROWSI,
JAN DOBROWOLSKI, MAREK GLOWATY, EUGENIUSZ JASTRZEBOWSKI,
ZBIGNIEW KUCHARSKI, MARIA MORENO, IRENA PERZYNASKA, MARIAN
RETELSKI, DARIUSZ WSZOLKOWSKI, BOGUSLAW ZALEWSKI,
Plaintiffs-Appellants,
(Caption continued on inside cover)
On the Certified Questions from the United States Court of Appeals for the Second
Circuit, No. 15-2181 (L)
REPLY BRIEF FOR PLAINTIFFS-APPELLANTS SANTIAGO ALVEAR, PETER
CURLEY AND MARY ANN CURLEY
Dated: September 27, 2017
BOIES SCHILLER FLEXNER LLP
Luke Nikas
Nathan A. Holcomb
575 Lexington Avenue
New York, New York 10022
Telephone: (212) 446-2300
Facsimile: (212) 446-2350
E-mail: lnikas@bsfllp.com
nholcomb@bsfllp.com
NAPOLI SHKOLNIK PLLC
Paul J. Napoli
Christopher R. LoPalo
360 Lexington Avenue
11th Floor
New York, New York 10017
Telephone: (844) 230-7676
E-mail: PNapoli@NapoliLaw.com
CLopalo@NapoliLaw.com
Attorneys for Plaintiffs-Appellants Santiago Alvear, Peter Curley, and Mary Ann
Curley
STATE OF NEW YORK
Intervenor-Appellant,
-against-
BATTERY PARK CITY AUTHORITY, ET AL.,
Defendants-Appellees.
___________________
SANTIAGO ALVEAR,
Plaintiff-Appellant,
-against-
BATTERY PARK CITY AUTHORITY,
Defendant-Appellee.
___________________
PETER CURLEY, MARY ANN CURLEY,
Plaintiffs-Appellants,
-against-
BATTERY PARK CITY AUTHORITY,
Defendant-Appellee.
i
TABLE OF CONTENTS
PRELIMINARY STATEMENT .............................................................................................. 1
ARGUMENT ...................................................................................................................... 2
I. THE COURT SHOULD HOLD THAT PUBLIC-BENEFIT CORPORATIONS LACK THE
CAPACITY TO CHALLENGE A STATE STATUTE. ..................................................... 2
A. No “Particularized Inquiry” Is Necessary To Determine That a
Public-Benefit Corporation Lacks Capacity To Challenge a State
Statute. ........................................................................................................ 2
B. The BPCA Offers No Response to Appellants’ Argument That if a
Particularized Inquiry Were Required, the Relevant Factors Would
Support the Conclusion That the BPCA Lacks Capacity To Challenge
Jimmy Nolan’s Law.................................................................................. 10
II. THE COURT SHOULD RE-AFFIRM ITS DECISION IN ROBINSON V. ROBINS DRY
DOCK & REPAIR CO., 238 N.Y. 271 (1924), AND HOLD THAT ITS
“REASONABLENESS” STANDARD GOVERNS THE MERITS OF A DUE-PROCESS
CHALLENGE TO A CLAIM-REVIVAL STATUTE UNDER THE NEW YORK STATE
CONSTITUTION. ................................................................................................... 13
A. This Court Has Never Overruled Its “Reasonableness” Standard
Applicable to Due-Process Challenges to Claim-Revival Statutes,
and It Should Not Do So Now. ................................................................. 13
B. Jimmy Nolan’s Law Comports with Due Process Under this Court’s
“Reasonableness” Standard. ................................................................... 14
CONCLUSION ................................................................................................................. 16
ii
TABLE OF AUTHORITIES
Cases Pages
Black River Regulating Dist. v. Adirondack League Club,
307 N.Y. 475 (1954) ........................................................................................... 2, 3, 9
City of New York v. State of New York,
86 N.Y.2d 286 (1995) ......................................................................................... 2, 3, 8
County of Rensselaer v. Regan,
173 A.D.2d 37 (3d Dep’t 1991) .................................................................................. 7
County of Rensselaer v. Regan,
80 N.Y.2d 988 (1992) ................................................................................................. 6
Fleischer v. N.Y. State Liquor Auth.,
103 A.D.3d 581 (1st Dep’t 2013) ............................................................................... 5
Gallewski v. H. Hentz & Co.,
301 N.Y. 164 (1950) ........................................................................................... 13, 14
In re World Trade Center Lower Manhattan Disaster Site Litig.,
44 F. Supp. 3d 409 (S.D.N.Y. 2014) ........................................................................... 1
Matter of Crespo,
123 Misc.2d 862 (Sup. Ct. N.Y. Cnty. 1984) ............................................................. 9
Matter of Goldstein v. N.Y. State Urban Dev. Corp.,
13 N.Y.3d 511 (2009) ............................................................................................... 11
McQuigan v. Delaware, L. & W.R. Co.,
129 N.Y. 50 (1891) ..................................................................................................... 8
Patterson v. Carey,
41 N.Y.2d 714 (1977) ............................................................................................. 4, 5
Rivera v. Laporte,
120 Misc. 2d 733 (Sup. Ct. N.Y. Cnty. 1983) ...................................................... 9, 10
Robinson v. Robins Dry Dock & Repair Co.,
238 N.Y. 271 (1924) ............................................................................................. 2, 13
iii
Smith v. Smith,
2 N.Y.2d 120 (1956) ................................................................................................... 9
Soc’y of Plastics Indus., Inc. v. Cty. of Suffolk,
77 N.Y.2d 761 (1991) ................................................................................................. 5
Williams v. Mayor,
289 U.S. 36 (1933) ...................................................................................................... 8
Other Authorities
N.Y. Const. art. XVIII, § 1 ........................................................................................... 11
N.Y. Gen. Mun. Law § 50-e ............................................................................... 1, 12, 15
1
Santiago Alvear, Peter Curley, and Mary Ann Curley (the “Plaintiffs”)
respectfully submit this reply brief to further address the questions certified to this Court
by the United States Court of Appeals for the Second Circuit.
PRELIMINARY STATEMENT
Much of the rhetoric in Respondent’s Brief is directed at points that are irrelevant
to the questions certified by the Second Circuit. The BPCA repeatedly reminds the
Court that it owned land on which buildings that required clean-up after 9/11 were
situated rather than the buildings themselves. (BPCA Br. 5, 9.) The Federal District
Court has, however, already denied a motion for summary judgment in which the BPCA
contended clean-up workers could not establish premises liability. In re World Trade
Center Lower Manhattan Disaster Site Litig., 44 F. Supp. 3d 409, 444 (S.D.N.Y. 2014).
The BPCA was able to avoid Plaintiffs’ day in Court only by first invoking a notice
provision in N.Y. Gen. Mun. Law § 50-e that is unavailable to non-governmental
defendants, and then, when the Legislature enacted Jimmy Nolan’s law, contending that
the government had violated its due process rights.
The BPCA’s positions are both hypocritical and unsupported by the law. This
Court should ensure that plaintiffs like Santiago Alvear, Peter Curley, and Mary Ann
Curley have access to the relief the Legislature sought to provide by clarifying two
points of New York law. First, the Court should hold that a public-benefit corporation
lacks standing to challenge a New York statute on due-process grounds. Second, the
2
Court should hold that a claim-revival statute comports with due process if it is
reasonable and not arbitrary, as this Court held in Robinson v. Robins Dry Dock &
Repair Co., 238 N.Y. 271 (1924).
ARGUMENT
I. THE COURT SHOULD HOLD THAT PUBLIC-BENEFIT CORPORATIONS LACK THE
CAPACITY TO CHALLENGE A STATE STATUTE.
A. No “Particularized Inquiry” Is Necessary To Determine That a Public-
Benefit Corporation Lacks Capacity To Challenge a State Statute.
As the Plaintiffs demonstrated in their Opening Brief, no “particularized inquiry”
is necessary to determine that a public-benefit corporation lacks capacity to challenge a
State statute for the simple reason that public-benefit corporations are creatures of the
Legislature. To endow public-benefit corporations with a constitutional right to
challenge laws enacted by the Legislature would give rise to the risk of “creating a
monster” that would later turn on the Legislature and thwart its policies. This risk would
unduly restrict the Legislature’s freedom to determine and implement the State’s public-
policy goals. (Op. Br. 9-12.)
This rationale applies to all public corporations equally, because all are creatures
of the State. This Court’s endorsement of this rationale is therefore dispositive. See
City of New York v. State of New York, 86 N.Y.2d 286, 289-90 (1995); Black River
Regulating Dist. v. Adirondack League Club, 307 N.Y. 475, 487-88 (1954).
The BPCA’s arguments in response are unavailing.
First, the BPCA contends that Black River Regulating District is not controlling
3
because the Black River Regulating District is not a public-benefit corporation. (BPCA
Br. 20-22.) This misses the point. Even assuming arguendo that the BPCA were right
about the categorization of the Black River Regulating District, the reasoning in this
Court’s opinion turns on the fact that the Black River Regulating District is a creature
of the State—a characteristic that applies equally to all public corporations, including
public-benefit corporations. Black River Regulating District, 307 N.Y. at 487, 488
(holding that “political power conferred by the Legislature confers no vested right as
against the government itself,” and, accordingly, that “[t]he number and nature of [the
Black River Regulating District’s] powers are within the State’s absolute discretion and
any alteration, impairment or destruction of those powers by the Legislature presents
no question of constitutionality.”).
This Court’s decision in City of New York is likewise controlling,
notwithstanding that it addresses the standing of a municipal corporation, because its
reasoning again turns on the fact that a municipal corporation is a creature of the State.
86 N.Y.2d at 290 (“Viewed, therefore, by the courts as purely creatures or agents of the
State, it followed that municipal corporate bodies cannot have the right to contest the
actions of their principal or creator affecting them in their governmental capacity or as
representatives of their inhabitants.”). The BPCA’s efforts to distinguish Black River
Regulating District raise distinctions without a difference (such as that the State owned
the land that was subject to regulation by the Black River Regulating District, whereas
4
the BPCA is itself a landowner) because there is no distinction in the dispositive fact
that the BPCA—just like the Black River Regulating District, the City of New York, or
any other public corporation—is a creature of the State.
Second, the BPCA argues that this Court’s decision in Patterson v. Carey, 41
N.Y.2d 714 (1977), controls. (BPCA Br. 30-34.) In Patterson, however, the issue of
whether the Jones Beach State Parkway Authority had standing to assert a violation of
its due process rights held against the State was not before the Court, and the Court did
not purport to reach that issue. The Court merely commented in a brief footnote that
“the governmental plaintiffs, as well as the institutional representative of the
bondholders, have sufficient standing to maintain this action.” 41 N.Y.2d at n.*. The
Court’s opinion refers repeatedly to violations of the due process rights of the Jones
Beach State Parkway Authority’s bondholders, but not once does it refer to any
violation of the public-benefits corporation’s rights. 41 N.Y.2d at 719-20 (“The statute
deprives the bondholders of property without due process of law”); id. at 720 (the
deprivation of the bondholders’ contractual right was achieved without due process of
law”; id. at 721 (“the statute is arbitrary and deprives bondholders of a contractual right
without due process of law”) (all emphases added). The Court’s citation to Matter of
Jeter v. Ellenville Central School District, 41 N.Y.2d 283 (1977), reinforces that the
Court did not purport to hold that that the Jones Beach State Parkway Authority had
standing based on a violation of its own due process rights, because in Matter of Jeter
5
the Court recognized that the relevant public corporations had only “procedural
standing to participate in the present litigation (and thus to be heard, for instance, on
questions of statutory interpretation),” but did “not have the substantive right to raise
these constitutional challenges.” 41 N.Y.2d at 287 (emphases added).
Nor does the BPCA have standing by virtue of an alleged violation of its
bondholders’ rights. The BPCA’s assertion that “it is quite clear that BPCA may raise
grievances on behalf of its bondholders” ignores the “general prohibition on one litigant
raising the legal rights of another.” Soc’y of Plastics Indus., Inc. v. Cnty. of Suffolk, 77
N.Y.2d 761, 773 (1991). Although the Appellate Division, in line with Federal
authority, has recognized a narrow category of third-party standing “when (1) there is a
substantial relationship between the party asserting the claim and the rightholder; (2) it
is impossible for the rightholder to assert his or her own rights; and (3) [there is] the
need to avoid a dilution of the parties’ constitutional rights,” that test is not satisfied
here. Fleischer v. N.Y. State Liquor Auth., 103 A.D.3d 581, 583 (1st Dep’t 2013). The
BPCA’s bondholders are related to the BPCA only as its creditors, and clearly could
assert their own rights, just as the bondholders in Patterson did.
Third, the BPCA argues that even if this Court were to rule that public-benefit
corporations are subject to the same standing rules that apply to municipal corporations,
it should nevertheless hold that the BPCA has standing to challenge Jimmy Nolan’s law
on due process grounds because the “specific funds exception” applies. (BPCA Br. 34-
6
36.) If the Court reaches the issue, it should hold that there is no “specific funds
exception.” This Court has never held that “a specific funds exception” applies; it has
merely assumed without deciding that such an exception applies. See County of
Rensselaer v. Regan, 80 N.Y.2d 988, 991 (1992) (“According to the Appellate Division,
a county has standing to challenge allegedly invalid legislation when it has a proprietary
claim of entitlement to a specific fund, and asserts that the legislation has impaired its
entitlement to that fund . . . . We have not previously endorsed that concept of standing,
nor—as the parties have framed the issue—is it necessary for us to consider the validity
of that concept today.”);1 see also City of New York, 86 N.Y.2d at 291-92 (listing the
“specific funds exception” only as one of “[t]he only exceptions . . . which have been
identified in the case law” without reaching the question of whether such an exception
exists). This Court should not recognize such an exception now because it is at odds
with the principle this Court has repeatedly recognized: the State has authority to create
1 In County of Rensselaer, the defendants did not did not challenge whether a
specific funds exception exists, but rather assumed that the exception does exist and
argued that it did not apply. 80 N.Y.2d at 991. The Court of Appeals rejected this
argument based on the assumption that a specific funds exception as articulated by the
Appellate Division did apply, without holding that it did. Id. It is therefore highly
misleading for the BPCA to quote the Appellate Division’s opinion in support of the
proposition that “the county plaintiffs had standing.” (BPCA Br. 35.) Notably, the
constitutional violation that the Court recognized in County of Rensselaer was not a due
process right held by the county against the State, but rather a violation article V, § 1 of
the State Constitution based on an improper of assignment of administrative duties to
the Comptroller. Id. at 991-92.
7
public corporations and endow them with power to serve public purposes, and in
endowing public corporations with such power it does not at the same time empower
them to turn against the State and assert that legislative or executive state action has
violated their rights.
Even if the Court were to entertain the possibility of such an exception, however,
this is not an appropriate case to recognize it, because this case does not concern “a
proprietary claim of entitlement to a specific fund.” County of Rensselaer v. Regan, 173
A.D.2d 37, 40 (3d Dep’t 1991). The Appellate Division decision in County of
Rensselaer upon which the BPCA relies addressed funds derived from a specific source,
namely “all of the fines, forfeitures and penalties collected by the courts in proceedings
on the offenses specified in the STOP-DWI legislation.” Id. Jimmy Nolan’s Law, in
contrast, merely raises the prospect of an award of damages for tort claims that the
BPCA could pay from any funds. The BPCA’s attempt to conflate its “general fund”
with a “specific fund” (BPCA Br. 34) would create an exception that would swallow
the rule, because it would mean that any public corporation may mount a constitutional
challenge to State action with the potential to negatively affect the public corporation’s
finances. Although Plaintiffs submit that the Court should not recognize a “specific
fund exception,” if it does so, it should at a minimum limit any such exception to State
action targeting funds from a specific source or in a specific location.
Fourth, in the context of addressing the second question certified by the Second
8
Circuit, regarding the due process test applicable to claim revival statutes, the BPCA
makes the assertion that “existing law holds that public benefit corporations are entitled
to the same level of due process as private entities.” (BPCA Br. 47.) If true, this
assertion would have implications for the first question certified by the Second Circuit,
regarding the standing of public-benefit corporations to mount a due process challenge
to a State statute: under the fundamental principle that “there is no right without a
remedy,” it would be incongruous if public-benefit corporations had due process rights
against the State that they lacked standing to enforce. McQuigan v. Delaware, L. &
W.R. Co., 129 N.Y. 50, 52 (1891). But the BPCA’s assertion is incorrect. This Court
has made clear that public corporations, because they are creatures of the State, do not
have due process rights against the State. In City of New York, this Court quoted the
United States Supreme Court’s pronouncement that “‘[a] municipal corporation, created
by a state for the better ordering of government, has no privileges or immunities under
the federal constitution which it may invoke in opposition to the will of its creator.’”
86 N.Y.2d at 290 (quoting Williams v. Mayor, 289 U.S. 36, 40 (1933) (emphasis
added)). Noting that “New York has long followed the Federal rationale,” this Court
has explained that “‘[t]he courts of this State from very early times have consistently
applied the Federal rule in holding that political power conferred by the Legislature
confers no vested right as against the government itself.’” Id. (quoting Black River
Regulating Dist., 307 N.Y. at 488 (emphasis added)).
9
The authorities the BPCA cites do not hold that a different rule applies to public-
benefit corporations. Each addresses defenses asserted by municipal corporations (not
public-benefit corporations exclusively) against claims brought by private parties (not
the State), and in each case the defense at issue was based on invocation of rights
provided by a State statute (not an attempt to invalidate a State statute by appeal to a
constitutional right). See Smith v. Smith, 2 N.Y.2d 120, 123-24 (1956); Matter of
Crespo, 123 Misc.2d 862, 865-67 (Sup. Ct. N.Y. Cnty. 1984); Rivera v. Laporte, 120
Misc. 2d 733, 736 (Sup. Ct. N.Y. Cnty. 1983). None purported to hold that any sort of
public corporation has due process rights against the State equivalent to those of a
private entity. In fact, the Rivera court explicitly acknowledged that under this Court’s
precedents “[a]s a creature of the State, a municipality cannot invoke rights under the
Federal or State Constitutions in opposition to executive or legislative action of the State
government,” but held that “[w]here . . . a municipality is a party to litigation not
involving the State, the due process clause operates to guarantee the municipality the
same protection as any other similarly situated litigant.” 120 Misc. 2d at 739-40. Thus,
the BPCA’s authority does not support any difference in the due process rights held by
public-benefit corporations and those held by municipal or other public corporations.
Instead, it explicitly recognizes that public benefit corporations do not have due process
that they can assert against executive or legislative action by the State government, even
if they may assert such rights in litigation with a private party.
10
B. The BPCA Offers No Response to Appellants’ Argument That if a
Particularized Inquiry Were Required, the Relevant Factors Would Support
the Conclusion That the BPCA Lacks Capacity To Challenge Jimmy
Nolan’s Law.
In Plaintiffs’ Opening Brief, they argued that even if a particularized inquiry were
required, three key factors pointed to the conclusion that the BPCA lacks capacity to
challenge Jimmy Nolan’s law:
(1) The BPCA serves a recognized public purpose.
(2) The BPCA has held itself out as an affiliate of the State.
(3) The BPCA has availed itself of privileges available to non-governmental
entities.
(Op. Br. 12-14.)
Offering no direct response to Plaintiffs’ proposed factors, the BPCA instead
offers its own proposed factors. The BPCA fails to show that a particularized inquiry
favors its position.
First, the BPCA argues that it should have standing to assert a due process
challenge because its “powers, functions and obligations show that it is separate from
the State.” (BPCA Br. 25-26.) More specifically, the BPCA contends that its “primary
functions—to plan and spur economic redevelopment through mixed-use projects and
to act as a landlord—are largely private, non-governmental functions, typically
performed by private actors.” This contention ignores the fact that the public nature of
the BPCA’s purpose is enshrined in Article XVIII of the New York Constitution, which
specifically empowers the Legislature to arrange “for low rent housing” and the
11
“replanning, reconstruction and rehabilitation of substandard and insanitary areas.”
N.Y. Const. art. XVIII, § 1; see also Matter of Goldstein v. N.Y. State Urban Dev. Corp.,
13 N.Y.3d 511, 524 (2009).
Moreover, the BPCA’s efforts to emphasize throughout its brief its supposedly
“private” nature are unconvincing, particularly given how the BPCA holds itself out as
an affiliate of the State, including on its own website, http://bpca.ny.gov (emphasis
added). (Op. Br. 12-13.) The BPCA’s brief repeatedly emphasizes its work with private
partners. (BPCA Br. 25 (“BPCA’s enabling legislation repeatedly emphasizes that
BPCA is to work closely with the private sector and in some cases fill voids in services
filled by the private sector.”); id. at 28 (referring to “BPCA’s primary purposes of
redeveloping Battery Park City in conjunction with private partners”). But it is a non
sequitur to infer that because the BPCA works with private partners, the BPCA is itself
private—as if its partners’ private status were somehow contagious. The BPCA’s own
website tells a different story, touting a public/private partnership in which the BPCA
represents the public half of the partnership: “Through a public/private partnership
between the Battery Park City Authority and private developers, this planned
community has become a blueprint for successful urban development.”2
Second, the BPCA argues that it should have standing to assert a due process
2 http://bpca.ny.gov/about/who-we-are/ (last visited September 27, 2017).
12
challenge because it is “financially independent from the State.” (BPCA Br. 26-28.)
The fact that the BPCA does not rely on public funding to sustain its operations is not,
however, a factor particular to the BPCA that could distinguish the “particularized
inquiry” applicable in this case to that applicable in the case of other public-benefit
corporations. It is, instead, a characteristic feature of public-benefit corporations as a
whole—as the BPCA’s brief itself emphasizes. (BPCA Br. 11 (quoting N.Y. Const.
Convention Comm., Report, v. 11, Problems Relating to Home Rule and Local
Government (1938)).)
Third, the BPCA argues that it should have standing to assert a due process
challenge because it “is being sued for its actions as a private landlord.” (BPCA Br.
28.) The circumstances of the litigation at issue, however, support the Plaintiffs’
position, because in this litigation the BPCA has availed itself of the notice requirement
in Section 50-e of the General Municipal Law, which is specific to public corporations,
and which endows it with a privilege not available to private landlords or other non-
governmental entities.
In sum, if the Court does engage in a particularized inquiry, the particular
circumstances of this case weigh against permitting the BPCA to assert a due process
challenge to Jimmy Nolan’s Law.
13
II. THE COURT SHOULD RE-AFFIRM ITS DECISION IN ROBINSON V. ROBINS DRY
DOCK & REPAIR CO., 238 N.Y. 271 (1924), AND HOLD THAT ITS
“REASONABLENESS” STANDARD GOVERNS THE MERITS OF A DUE-PROCESS
CHALLENGE TO A CLAIM-REVIVAL STATUTE UNDER THE NEW YORK STATE
CONSTITUTION.
A. This Court Has Never Overruled Its “Reasonableness” Standard Applicable
to Due-Process Challenges to Claim-Revival Statutes, and It Should Not Do
So Now.
In Plaintiffs’ Opening Brief, they demonstrated that this Court has never
overruled the rule of Robinson v. Robins Dry Dock & Repair Co., 238 N.Y. 271 (1924),
that if the legislature’s judgment to revive a claim was “reasonable” and not “arbitrary,”
it is consistent with due process. (Op. Br. 14-16.) In Gallewski v. H. Hentz & Co., 301
N.Y. 164 (1950), the Court recognized that the claim-revival statute at issue had
addressed a “serious injustice,” but it did not create a new rule making “serious
injustice” a necessary requirement for a claim-revival statute to pass constitutional
muster. Id. at 174. In response, the BPCA attempts to add words into this Court’s
decisions that aren’t there. At page 36 of its brief, the BPCA asserts:
Accordingly, this Court has held that statutes reviving time-
barred claims are constitutional only “where the circumstances
are exceptional and are such as to satisfy the court that serious
injustice would result to plaintiffs not guilty of any fault if the
intention of the Legislature were not effectuated.” Gallewski v.
H. Hentz & Co., 301 N.Y. 164, 174 (1950).
(Emphasis added.)
And at page 37:
The statues only survived challenge “where the circumstances
are exceptional and are such as to satisfy the court that serious
14
injustice would result to plaintiffs not guilty of any fault if the
intention of the Legislature were not effectuated.” Gallewski,
301 N.Y. at 174 . . . .
(Emphasis added.)
And at footnote 13 on p. 49:
In Galleski, this Court held that circumstances must “satisfy the
court that serious injustice would result to plaintiffs not guilty of
any fault”
(Emphasis to the word “must” added.)
Each time, the BPCA inserted the word “only” or “must” before quoting this
Court’s actual words. Without these added words, Gallewski describes a “serious
injustice” as a sufficient condition for the constitutionality of a claim revival statute, not
a necessary one. That is the true reading of this Court’s precedent. If the Court of
Appeals were to depart from that precedent and overrule Robinson now, it would need
to solve the intractable problem it recognized in that decision: “the difficulty and danger
of giving a general judicial definition to the extent of a limitation imposed by the
Constitution.” 238 N.Y. at 279. A “serious injustice” is not a principled or predictable
test for distinguishing constitutional from unconstitutional claim-revival statutes.
B. Jimmy Nolan’s Law Comports with Due Process Under this Court’s
“Reasonableness” Standard.
Notwithstanding the BPCA’s callous accusations of “dilatory conduct” (BPCA
Br. 49) and its suggestion that Plaintiffs are undeserving of compassion because they
signed up for dangerous jobs (BPCA Br. 53), Jimmy Nolan’s Law clearly satisfies this
15
Court’s reasonableness standard.3
The Legislature recognized that the extraordinary circumstances of the post 9/11
clean-up warranted an exception from the requirement of compliance with the 90-day
deadline for filing a notice of claim with a public corporation. N.Y. Gen. Mun. Law §
50-e. As explained in the sponsor’s Memorandum in Support of Jimmy Nolan’s Law,
the “tens of thousands of individuals” who “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” and were “advised and reassured that they were working in safe
environments,” but have since developed “disabling” illnesses . . .
. . . should not be denied their rights to seek just compensation
simply because they were provided 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.
(Bill Jacket for ch. 440, at 6 (2009).)
This Court should correct the error of the Federal District Court and allow the
claims of plaintiffs like Santiago Alvear, Peter Curley, and Mary Ann Curley to be tried
on their merits.
3 Indeed, it should satisfy any more stringent “serious injustice” standard as well,
for the same reasons it satisfies the “reasonableness” standard. Although the BPCA
insinuates that Plaintiffs have conceded this point by not advancing any argument
addressed to a “serious injustice” standard in their Opening Brief (BPCA Br. 54),
Plaintiffs had simply focused their briefing on the questions certified to the Court by
the Second Circuit.
CONCLUSION
The Court should hold that (1) public-benefit corporations lack capacity to mount
constitutional challenges to New York statutes; and (2) claim-revival statutes that are
reasonable and not arbitrary comport with due process under the New York
Constitution.
Dated: September 27, 2017 Respectfully submitted,
BOIES SCHILLER FLEXNER LLP
djJuBy: A
Luke Nikas
Nathan A. Holcomb
575 Lexington Avenue
New York, New York 10022
Telephone: (212) 446-2300
Facsimile: (212) 446-2350
E-mail: lnikas@bsfllp.com
nholcomb@bsfllp.com
NAPOLI SHKOLNIK PLLC
Paul J. Napoli
Christopher R. LoPalo
360 Lexington Avenue
11th Floor
New York, New York 10017
Telephone: (844) 230-7676
Attorneys for Plaintiffs-Appellants
Santiago Alvear, Peter Curley, and
Mary Ann Curley
16
CERTIFICATION OF COMPLIANCE WITH WORD LIMIT
Pursuant to § 500.13(c)(1) of the Court’s Rules of Practice, I hereby certify that
the foregoing brief contains 3899 words.
Dated: September 27, 2017
Luke Nikas
17