NO. CTQ-2017-00001 TO BE ARGUED BY: LUKE NIKAS
10 MIN. OF ARGUMENT REQUESTED
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)
BRIEF FOR PLAINTIFFS-APPELLANTS SANTIAGO ALVEAR, PETER CURLEY
AND MARY ANN CURLEY
Dated: June 16, 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
QUESTIONS PRESENTED ................................................................................................... v
JURISDICTIONAL STATEMENT ........................................................................................ vii
PRELIMINARY STATEMENT .............................................................................................. 1
FACTUAL AND PROCEDURAL BACKGROUND .................................................................... 2
I. THE BPCA. ........................................................................................................... 2
II. THE FEDERAL DISTRICT COURT DISMISSES PLAINTIFFS-APPELLANTS’ CLAIMS
AGAINST THE BPCA. ............................................................................................ 3
III. THE NEW YORK ASSEMBLY RESPONDS WITH JIMMY NOLAN’S LAW. ................... 4
IV. THE FEDERAL DISTRICT COURT HOLDS THAT THE NEW YORK ASSEMBLY
VIOLATED THE NEW YORK CONSTITUTION AND AWARDS SUMMARY JUDGMENT
TO THE BPCA. ....................................................................................................... 8
V. THE FEDERAL APPEALS COURT CERTIFIES TWO QUESTIONS TO THIS COURT. ...... 9
ARGUMENT ...................................................................................................................... 9
I. THE COURT SHOULD HOLD THAT PUBLIC-BENEFIT CORPORATIONS LACK THE
CAPACITY TO CHALLENGE A STATE STATUTE. ..................................................... 9
A. No “Particularized Inquiry” Is Necessary To Determine That a Public-
Benefit Corporation Lacks Capacity To Challenge a State Statute. ......... 9
B. If a Particularized Inquiry Were Required, the Relevant Factors Would
Support the Conclusion That the BPCA Lacks Capacity To Challenge
Jimmy Nolan’s Law.................................................................................. 12
ii
II. THIS 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. ................................................................................................... 14
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. ........................................................................ 14
B. Jimmy Nolan’s Law Comports with Due Process Under This Court’s
“Reasonableness” Standard. ................................................................... 16
CONCLUSION ................................................................................................................. 17
iii
TABLE OF AUTHORITIES
Cases Pages
Black River Regulatory District v. Adirondack League Club,
307 N.Y. 475 (1954) ................................................................................................. 10
City of New York v. State of New York,
86 N.Y.2d 286 (1995) ............................................................................................... 10
Clark-Fitzpatrick, Inc. v. Long Island R.R. Co.,
70 N.Y.2d 382 (1987) ........................................................................................... v, 11
Gallewski v. H. Hentz & Co.,
301 N.Y. 164 (1950) ......................................................................................... v, 8, 15
Hymowitz v. Eli Lilly & Co.,
73 N.Y.2d 487 (1989) ............................................................................................... 15
In re World Trade Center Lower Manhattan Disaster Site Litig.,
66 F. Supp. 3d 466 (S.D.N.Y. 2014) ................................................................ 8, 9, 13
In re World Trade Center Lower Manhattan Disaster Site Litig.,
846 F.3d 58 (2d Cir. 2017) ......................................................................................... 9
John Grace & Co. v. State Univ. Constr. Fund,
44 N.Y.2d 84 (1978) ............................................................................................. v, 11
Robinson v. Robins Dry Dock & Repair Co.,
238 N.Y. 271 (1924) .......................................................................................... passim
Statutes
49 U.S.C. § 40101 .......................................................................................................... 3
N.Y. Gen. Constr. Law § 66(1)-(4) .............................................................................. 11
N.Y. Gen. Mun. Law § 50-e ........................................................................................... 4
N.Y. Gen. Mun. Law § 50-i ............................................................................................ 7
N.Y. Pub. Auth. Law § 1970 .......................................................................................... 2
Pub. L. No. 107-42, 115 Stat. 230 (2001) ...................................................................... 3
iv
Constitutional Provisions
N.Y. Const. art. 6, § 3(b)(9).......................................................................................... vii
N.Y. Const. art. I, § 6 ...................................................................................................... 8
Rules
CPLR § 214-c ................................................................................................................. 4
Other Authorities
Assembly Bill 7122 ........................................................................................................ 6
Bill Jacket for ch. 343 (1968) ......................................................................................... 3
Bill Jacket for ch. 440 (2009) ......................................................................................... 5
v
QUESTIONS PRESENTED
(1) Before determining whether a State-created public-benefit corporation has
the capacity to challenge a State statute, should a court first decide whether the
corporation “should be treated like the State,” Clark-Fitzpatrick, Inc. v. Long Island
R.R. Co., 70 N.Y.2d 382, 397 (1987), based on a “particularized inquiry into the nature
of the instrumentality and the statute claimed to be applicable to it,” John Grace & Co.
v. State Univ. Constr. Fund, 44 N.Y.2d 84, 88 (1978)?
Plaintiffs-Appellants respectfully submit that public-benefit corporations lack the
capacity to challenge a State statute and that no “particularized inquiry” is needed on a
case-by-case basis to make this determination. If, however, the Court rules that a
particularized inquiry is required, the factors relevant to this inquiry should include (i)
whether the public-benefit corporation serves a recognized public purpose; (ii) whether
the public-benefit corporation has held itself out as an affiliate of the State; and (iii)
whether the public-benefit corporation has invoked privileges specific to governmental
actors. If these factors are applied to the BPCA in this case, it is clear that the BPCA
lacks the capacity to challenge Jimmy Nolan’s Law.
(2) Does the “serious injustice” standard articulated in Gallewski v. H. Hentz
& Co., 301 N.Y. 164 (1950), or the “reasonableness” standard articulated in Robinson
v. Robins Dry Dock & Repair Co., 238 N.Y. 271 (1924), govern the merits of a due-
process challenge under the New York State Constitution to a claim-revival statute?
vi
Plaintiffs-Appellants respectfully submit that the “reasonableness” standard
articulated in Robinson v. Robins Dry Dock & Repair Co. governs the merits of a due-
process challenge under the New York State Constitution to a claim-revival statute.
Jimmy Nolan’s Law comports with due process under this standard.
vii
JURISDICTIONAL STATEMENT
This Court has jurisdiction over the questions certified by the United States
Court of Appeals for the Second Circuit under N.Y. Const. art. 6, § 3(b)(9), and
§ 500.27(a) of the Court’s Rules of Practice.
1
Santiago Alvear, Peter Curley, and Mary Ann Curley (the “Plaintiffs”)
respectfully submit this brief to address the questions certified to this Court by the
United States Court of Appeals for the Second Circuit.
PRELIMINARY STATEMENT
This case arises from the plight of Plaintiffs and other workers who were involved
in the rescue, recovery, and cleanup efforts following the horrific events of 9/11, as well
as their spouses. As a result of unsafe working conditions, tens of thousands of the
workers suffer from multiple respiratory conditions, which had varying onset dates and
varying dates when they were diagnosed. In many cases, these conditions have been
debilitating. Frequently, doctors failed to recognize that the workers’ conditions
resulted from working at the 9/11 site, but instead attributed them to acute common
colds, influenza, or allergies. Only later did the workers learn the causes of their
conditions and their legal rights to seek recovery from parties whose negligence had
created the unsafe working conditions that exposed them to toxic dust.
This appeal addresses Plaintiffs’ claims against the Battery Park City Authority
(“BPCA”), which owned several of the buildings in Battery Park City that required
cleanup after 9/11. The BPCA has invoked a procedural notice requirement specific to
public corporations that would have rendered Plaintiffs’ claims untimely. In response,
the Legislature—the same Legislature that created the BPCA—enacted Jimmy Nolan’s
law to ensure that the notice requirement would not bar Plaintiffs’ claims. Unchastened,
2
the BPCA then sought to thwart the Legislature’s will by asserting a due-process
challenge to Jimmy Nolan’s Law. The BPCA’s effort should be rejected.
First, the Court should hold that a public-benefit corporation lacks standing to
challenge a New York statute on due-process grounds. The Legislature should not be
concerned that when it creates a public-benefit corporation to serve the public interest,
it may “create a monster” that will turn on the Legislature and seek judicial intervention
to avoid compliance with statutory law.
Second, the 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). This Court has consistently exercised
judicial restraint when reviewing claim-revival statutes, and it has never overruled
Robinson or overturned a claim-revival statute. It should not change course now.
Clarifying these points of New York law will ensure that Plaintiffs have access
to the relief the Legislature sought to provide when enacting Jimmy Nolan’s Law.
FACTUAL AND PROCEDURAL BACKGROUND
I. THE BPCA.
The New York Legislature created the BPCA in 1968 with an amendment to New
York’s Public Authorities Law, now codified at N.Y. Pub. Auth. Law § 1970 et seq.
The codified statement of legislative findings clarifies the public purpose the BPCA
was created to serve, explaining that, at the time, the area North of Battery Park and
3
adjacent to the Hudson River was “a blighted area . . . marked by substandard,
insanitary, deteriorated and deteriorating conditions,” and further that there existed
“throughout the city of New York a seriously inadequate supply of safe and sanitary
dwelling accommodations for persons and families of low income.” Id. § 1971. In
order to solve these public problems, it was
found and declared that Battery Park city authority, through the
issuance of bonds and notes to the private investment public, by
encouraging maximum participation by the private sector of the
economy, including the sale or lease of the authority’s interest in
projects at the earliest time deemed feasible, and through
participation in programs undertaken by the state, its agencies
and subdivisions, and by the federal government, may provide or
obtain the capital resources necessary to provide dwelling
accommodations for persons and families of low income, and
facilities incidental or appurtenant thereto, and, where necessary,
to carry out the clearance, replanning, reconstruction and
rehabilitation of such substandard and insanitary areas.
(Id.; see also Bill Jacket for ch. 343 (1968).)
II. THE FEDERAL DISTRICT COURT DISMISSES PLAINTIFFS-APPELLANTS’ CLAIMS
AGAINST THE BPCA.
Plaintiffs brought claims against the BPCA based upon the BPCA’s negligent
failure to provide safe working conditions during the cleanup of several buildings it
owns in Battery Park City.1 The BPCA moved to dismiss, invoking a notice
1 Under the Air Transportation Safety and System Stabilization Act of 2001, or
“ATSSSA,” Pub. L. No. 107-42, 115 Stat. 230 (2001) (codified as amended at 49 U.S.C.
§ 40101 note), the United States District Court for the Southern District of New York
4
requirement under Section 50-e of the General Municipal Law specific to public
corporations, which provides that where a notice of claim is required as a condition
precedent to commencing an action against a public corporation, the notice must be
served within 90 days after the claim arises. N.Y. Gen. Mun. Law § 50-e. Because
Plaintiffs’ claims sought recovery for personal injury “caused by the latent effects of
exposure to [a] substance of combination of substances,” their claims accrued on the
date of discovery of the injury or the date “when through the exercise of reasonable
diligence such injury should have been discovered.” CPLR § 214-c. And because
Plaintiffs’ claims sounded in tort, a notice of claim was required under Section § 1984
of the Public Authorities Law.
The Federal District Court granted the BPCA’s motion in a summary order,
holding that Plaintiffs’ claims were time-barred because they had not complied with the
CPLR’s notice requirement. (Rec. A407.)
III. THE NEW YORK ASSEMBLY RESPONDS WITH JIMMY NOLAN’S LAW.
The New York Assembly responded to the Federal District Court’s dismissal
order by enacting Jimmy Nolan’s Law.
The motivation for the law was clear: the sponsor’s Memorandum in Support
explained that in the aftermath 9/11, “tens of thousands of individuals worked at the
had exclusive jurisdiction over Plaintiffs’ claims, but New York’s substantive law
applied.
5
World Trade Center Site, as well as locations related to debris removal and recovery of
remains, for extensive periods of time”; these individuals were at the time “advised and
reassured that they were working in safe environments”; but they since have developed
“disabling” illnesses. (Bill Jacket for ch. 440, at 6 (2009).) The Memorandum
continued,
[t]hese individuals 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.
(Id.)
Writing in support of the law, the President of the Sergeants Benevolent
Association decried the Federal District Court’s decision dismissing hundreds of cases
brought by rescue and recovery workers:
There are no words to describe the profound heartbreak and
feelings of hopelessness that these judicial decisions have
created. I have spent countless time speaking with young people
who should be in the prime of their lives, but instead can barely
cross a room without gasping for air. There are scores of
relatively young men and women now consigned to sit idly while
their families do without material necessities because they can
no longer work and often have to drag oxygen tanks behind them
to be able to function at any level at all.
(Id. at 28.)
Many others supported the law, including the New York State Department of
Health, which observed that it “would permit those who did not recognize the harm they
suffered as a result of participation in the World Trade Center cleanup during the usual
6
statute of limitations period to seek recompense from a public corporation for one more
year.” (Id. at 12; see also id. (“The Department of Health recommends the approval of
Assembly Bill 7122-C.”).)
The New York State Office of Homeland Security also supported the law,
explaining, “[f]rom a State homeland security perspective this bill would recognize and
allow consideration for those individuals who heroically and selflessly assisted in the
rescue, recovery, and cleanup efforts and may have been exposed to unknown
hazardous materials and sustained injuries or illnesses that were not readily apparent or
causally connected to these efforts.” (Id. at 15.) The law would further the end of a
secure homeland by sending “a strong message to future responders that their needs will
not be forgotten and that the State will make every effort to permit these individuals to
seek redress for injuries sustained in rescue and recovery efforts.” (Id. at 15-16.) “This,
in turn, will help to encourage individuals to respond to any future catastrophic events
as heroically as our 9/11 responders.” (Id. at 16.)
The law was named after Jimmy Nolan, a carpenter and father of three children.
(Id. at 5.) Like many workers involved in the rescue and cleanup efforts following 9/11,
Jimmy Nolan worked tirelessly. Jimmy Nolan is an especially heroic example of a spirit
shared by the many workers who helped New York City and New York State heal from
9/11: he worked at Ground Zero day and night, and he slept there for three days. (Id.)
The price Jimmy Nolan paid is also representative of many other workers: he later
7
developed respiratory problems and allergies, which required treatment by medications
costing hundreds of dollars per month, which his insurance did not cover. (Id.)
Jimmy Nolan’s Law addressed the plight of rescue, recovery, and cleanup
workers who were suffering health effects as a result of their dangerous work conditions
by amending section 50-i of the New York General Municipal Law to provide as
follows:
Notwithstanding any other provision of law to the contrary,
including any other subdivision of this section, section fifty-e of
this article, . . . any cause of action against a public corporation
for personal injuries suffered by a participant in World Trade
Center rescue, recovery, or cleanup operations as a result of such
participation which is barred as of the effective date of this
subdivision because the applicable period of limitation has
expired is hereby revived, and a claim thereon may be filed and
served and prosecuted provided such claim is filed and served
within one year of the effective date of this subdivision.
N.Y. Gen. Mun. Law § 50-i(4)(a).
Following enactment of Jimmy Nolan’s law, the BPCA remained able to obtain
financing through bond offerings. In fact, the value of the BPCA’s bonds outstanding
increased by 10% during the five years after Jimmy Nolan’s law was enacted, from $1.0
billion in 2009 to $1.1 billion in 2014. (Rec. A625.)
IV. THE FEDERAL DISTRICT COURT HOLDS THAT THE NEW YORK ASSEMBLY
VIOLATED THE NEW YORK CONSTITUTION AND AWARDS SUMMARY
JUDGMENT TO THE BPCA.
Pursuant to Jimmy Nolan’s Law, Plaintiffs served notices of claim on the BPCA.
The BPCA moved for summary judgment, arguing that Jimmy Nolan’s Law was
8
unconstitutional under the Due Process Clause of the New York State Constitution,
N.Y. Const. art. I, § 6. During the hearing on the BPCA’s motion, Judge Hellerstein
expressed his disagreement with the New York Legislature’s decision to include
workers involved in the “cleanup operations” following 9/11 within the scope of Jimmy
Nolan’s Law. He asserted that because they were “called upon to do the cleanup work
they specialized in doing,” it was “not like a heroic call.” (Rec. A640.)
The Federal District Court awarded the BPCA summary judgment. It first held
that the BPCA was “created to be independent of the State in performing primarily
private functions, funded primarily by private means.” In re World Trade Center Lower
Manhattan Disaster Site Litig., 66 F. Supp. 3d 466, 472 (S.D.N.Y. 2014). It then
interpreted this Court’s decisions evaluating claim-revival statutes under the New York
Due Process Clause, including this Court’s decision in Gallewski v. Hentz & Co., 301
N.Y. 164 (1950), to hold that “exceptional circumstances” or “serious injustice” were
necessary to justify a claim-revival statute. In re World Trade Center, 66 F. Supp. 3d
at 473-76. Addressing the Legislature’s rationales for Jimmy Nolan’s Law, the Federal
District Court held that they did “not amount to the ‘exceptional circumstances’” that
would justify a claim-revival statute. Id. at 475.
V. THE FEDERAL APPEALS COURT CERTIFIES TWO QUESTIONS TO THIS COURT.
Plaintiffs appealed the Federal District Court’s ruling to the United States Court
of Appeals for the Second Circuit. The Second Circuit certified the two questions
9
presented to this Court, and in its certification order invited this Court to “expand these
certified inquiries to address any further question of New York law as may be relevant
to the particular circumstances presented in this appeal.” In re World Trade Center
Lower Manhattan Disaster Site Litig., 846 F.3d 58, 70 (2d Cir. 2017).
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.
The Court should clarify that no “particularized inquiry” is necessary to
determine that a public-benefit corporation lacks capacity to challenge a State statute.
The reason is simple: public-benefit corporations are creatures of the New York State
Legislature that exist only because the Legislature has concluded that it is desirable as
a matter of public policy for them to exist to serve public ends. To endow them with a
constitutional right to challenge laws enacted by the Legislature would deter the
Legislature from creating public-benefit corporations in the first place, because it would
give rise to the risk of “creating a monster” that would later turn on the Legislature and
thwart its policies. The result would be an unwarranted restriction on the Legislature’s
freedom to determine and implement the State’s public-policy goals.
The Court of Appeals has repeatedly articulated and applied this rationale. In
Black River Regulatory District v. Adirondack League Club, 307 N.Y. 475 (1954), the
10
Court held that the Black River Regulating District lacked standing to challenge the
constitutionality of a State statute because “political power conferred by the Legislature
confers no vested right as against the government itself,” and, accordingly, “[t]he
number and nature of its 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.” Id. at 487, 488.
Then, in City of New York v. State of New York, 86 N.Y.2d 286, 289-90 (1995),
the Court held that municipal corporations lack standing to challenge State statutes:
Constitutionally as well a matter of historical fact, municipal
corporate bodies—counties, towns and school districts—are
merely subdivisions of the State, created by the State for the
convenient carrying out of the State’s governmental powers and
responsibilities as its agents. 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.
Id. at 289-90.
The same rationale applies to all public corporations equally, including public
benefit corporations. When the State has created public corporations to serve public
ends, those corporations should not be permitted to contest laws enacted by their creator,
11
also to serve public ends.2
In limited circumstances, the Court has made a particularized inquiry to
determine whether a public-benefit corporation should be treated as the State. In those
cases, however, the Court was balancing the privileges of a public-benefit corporation
against the interests of private entities—not against the Legislature’s constitutional
authority. E.g., Clark-Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 N.Y.2d 382, 388 (1987)
(holding that the Long Island Railroad Company was immune from punitive damages
in a lawsuit brought by private company); John Grace & Co. v. State Univ. Constr.
Fund, 44 N.Y.2d 84, 89-90 (1978) (holding that State University Construction Fund, a
public-benefit corporation created to receive and administer moneys available for
construction of facilities of the State University of New York, was not subject to
statutory provision regarding adjustments to pricing in contracts awarded to private
contractors based on increased costs). When that occurs, the Court should engage in
statutory interpretation to reconcile the statute by which the public-benefit corporation
was created with the statute or common law rule being applied to it in the case. But the
Court has never held that, having created a public-benefit corporation, the Legislature
is constrained in limiting the privileges of that corporation by the risk that the
2 Under the General Construction Law, a “public corporation” is defined to
include “a municipal corporation, a district corporation, or a public benefit corporation,”
which are all separately defined. N.Y. Gen. Constr. Law § 66(1)-(4).
12
corporation will eviscerate the Legislative act with a constitutional challenge. It should
not do so now.
B. If a Particularized Inquiry Were Required, the Relevant Factors Would
Support the Conclusion That the BPCA Lacks Capacity To Challenge
Jimmy Nolan’s Law.
Even if a particularized inquiry were required, the BPCA would not have
standing. Three key factors point to this conclusion.
First, the BPCA serves a recognized public purpose. Both the history of the
legislation through which the BPCA was created and the clear intent behind the powers
it was given evince the public purposes that the Legislature created it to serve. In this
case, the public nature of the BPCA’s purpose is especially clear, because it is
recognized by no lesser authority than the New York Constitution: Article XVIII
specifically empowers the Legislature to arrange “for low rent housing” and the
“replanning, reconstruction and rehabilitation of substandard and insanitary areas.”
N.Y. Const. art. XVIII, § 1.
Second, the BPCA has held itself out as an affiliate of the State. Its website is at
http://bpca.ny.gov. (Emphasis added.) The BPCA’s logo displayed on that website
heralds its affiliation with New York State:
13
The “About” section of the website describes the BPCA as “a New York State public
benefit corporation” and touts 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.”3 The BPCA’s
own statements belie the Federal District Court’s characterization of it as “independent
of the State in performing primarily private functions.” In re World Trade Center, 66
F. Supp. 3d at 472. It would be incongruous and unjust if the BPCA could, on the one
hand, hold itself out as an affiliate of the State when doing so suits its goals, and then
turn around and seek to have the will of the State Legislature overruled.
Third, the BPCA has availed itself of privileges unavailable to non-governmental
entities. The notice requirement in Section 50-e of the General Municipal Law is
specific to public corporations, endowing them with a privilege not enjoyed by private
entities. It would, again, be incongruous and unjust if the BPCA could, on the one hand,
invoke a notice requirement applicable only to State entities, and, on the other, seek
judicial review of a law passed by the State Legislature limiting its ability to rely on
that notice requirement.
The BPCA’s hypocrisy is emblematic of the reason public authorities should
3 http://bpca.ny.gov/about/who-we-are/ (last visited June 16, 2017).
14
never have standing to challenge State statutes on constitutional grounds. At a
minimum, these factors should be relevant to any inquiry a court might undertake in an
individual case, and they compel the conclusion that the BPCA lacks standing.
II. THIS 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.
This Court has consistently exercised judicial restraint when addressing
challenges to claim-revival statutes. It should not change course now.
The rule of Robinson is that if the legislature’s judgment to revive a claim was
“reasonable” and not “arbitrary,” it is consistent with due process. Specifically, the
Court upheld the constitutionality of the claim-revival statute at issue based on its
observations that there was “no arbitrary deprivation by the Legislature of the rights of
one party in order to confer a new right upon another party” and “[t]he extension of the
time to bring [the] action was reasonable.” 238 N.Y. at 280. Deferring to the
Legislature’s judgment, the Court explained, “this exercise of the legislative power
should not be declared invalid because of a constitutional limitation of doubtful
application.” Id.
Since Robinson, the Court has consistently adhered to its model of judicial
15
restraint. In particular, Gallewski v. H. Hentz & Co., 301 N.Y. 164 (1950), did not
overrule Robinson, but instead applied it. The Court recognized 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
plaintiffs not guilty of any fault if the intention of the Legislature were not effectuated.”
Id. at 174. But it did not create a new rule making “serious injustice” a necessary
requirement for a claim-revival statute to pass constitutional muster. See id. In fact,
the Court observed that it was not “now necessary for us to adopt the broad and
unqualified view that a State may constitutionally revive any personal cause of action,
whatever the circumstances,” thus allowing the possibility that it might in the future
adopt this view—which it would necessarily be precluded from doing if it were
establishing a test making “serious injustice” a necessary requirement going forward.
Id. at 173.
Likewise, in Hymowitz v. Eli Lilly & Co., 73 N.Y.2d 487 (1989), the Court
observed that it “need not light on a precise test here” because the claim-revival statute
at issue “meets the highest standard.” Id. at 514.
If the Court of Appeals were to overrule Robinson now, it would have to solve
the intractable problem it recognized in that decision: “the difficulty and the danger of
giving a general judicial definition to the extent of a limitation imposed by the
Constitution.” Id. at 279. A “serious injustice” is not a principled or predictable test
16
for distinguishing constitutional from unconstitutional claim-revival statutes; it is
nothing more than an invitation for a court to strike down a claim-revival statute when
it disagrees with the judgment of the Legislature that passed it. That is exactly what the
Federal District Court did in this case, where Judge Hellerstein asserted, contrary to the
New York Legislature, that Plaintiffs had not answered a “heroic call” because they
were involved in “cleanup work” in which they “specialized.” (Rec. A640.)
The Court should exercise the same judicial restraint it has showed in a line of
decisions extending nearly one hundred years. It should rule that a claim-revival statute
that is “reasonable” and not “arbitrary” comports with the Due Process Clause of the
New York Constitution.
B. Jimmy Nolan’s Law Comports with Due Process Under This Court’s
“Reasonableness” Standard.
Jimmy Nolan’s law easily passes the “reasonableness” threshold articulated in
Robinson. It should therefore be upheld.
Tens of thousands of workers who contributed to the rescue and cleanup effort
after 9/11 had suffered disabling illnesses as a result. But they were denied
compensation because they had been told incorrect information about the safety of the
9/11 site and had not recognized the cause of their injuries or had been unaware of the
applicable statute of limitations. The Legislature revived their claims in order to ensure
they had a remedy. According to the New York State Department of Health, this
measure served the public health. And according to the New York State Office of
Homeland Security, it helped preserve our State's security.
The Federal District Court misapplied the New York Constitution when it
substituted its own policy judgement for that of the New York Legislature. This Court
should correct this error and provide hope of a remedy for plaintiffs like Santiago
Alvear, Peter Curley, and Mary Ann Curley.
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: June 16, 2017 Respectfully submitted,
BOIES SCHILLER FLEXNER LLP
By:h-.~
Luke Nikas
17
Nathan A. Holcomb
5 7 5 Lexington A venue
New York, New York 10022
Telephone: (212) 446-2300
Facsimile: (212) 446-2350
E-mail: lnikas@bsfllp.com
nholcomb@bsfllp.com
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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
CERTIFICATION OF COMPLIANCE WITH WORD LIMIT
Pursuant to§ 500.13(c)(l) of the Court's Rules of Practice, I hereby certify that
the foregoing brief contains 4,338 words.
Dated: June 16, 2017
Luke Nikas
19