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)
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REPLY 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.
TABLE OF CONTENTS
iTABLE OF AUTHORITIES
ARGUMENT 1
I. THIS COURT HAS PREVIOUSLY UPHELD A REVIVAL
STATUTE THAT MET THE “REASONABLENESS”
TEST UNDER ROBINSON AND AS SUCH, ROBINSON IS
STILL GOOD LAW 1
II. ALTHOUGH THE DISTRICT COURT SHOULD HAVE
APPLIED THE “REASONABLENESS” STANDARD TO
THE JIMMY NOLAN LAW, THE LAW ALSO MEETS
THE REQUIREMENTS OF THE “SERIOUS INJUSTICE”
STANDARD 3
The Jimmy Nolan Law Meets The Standards Under
Robinson and Gallewski
A.
3
No Remedies Other Than The Jimmy Nolan Law Were
Available To The Plaintiffs-Appellants
B.
.4
The plaintiffs-appellants were not protected from
“serious injustice” by CPLR §214-c
1.
.4
The plaintiffs-appellants’ failure to timely serve2.
notices of claim were through no fault of their own ,6
III. PLAINTIFFS-APPELLANTS JOIN IN AND ADOPT THE
ARGUMENTS SET FORTH IN THE INTERVENOR-
APPELLANT NEW YORK ATTORNEY GENERAL’S
BRIEFS 8
8CONCLUSION
i
TABLE OF AUTHORITIES
Cases
Gallewski v. Hentz & Co,
301 N.Y. 164 (1950)
In re World Trade Ctr. Lower Manhattan Disaster Site Litig.,
44 F. Supp. 3d 409 (S.D.N.Y. 2014)
Lombardi v. Whitman,
485 F.3d 73 (2d Cir. 2007)
Matter of Felder v. City of New York,
53 A.D.3d 401
Robinson v. Robbins Dry Dock & Repair Co.,
238 N.Y. 271 (1924)
Ruotolo v. State,
83 N.Y.2d 248 (1994)
Statutes
1,2
6
7
5
1
2
CPLR § 214-c 4,5
N.Y. Gen. Mun. Law § 50-e 5
ii
ARGUMENT
I. THIS COURT HAS PREVIOUSLY UPHELD A REVIVAL STATUTE
THAT MET THE “REASONABLENESS” TEST UNDER ROBINSON
AND AS SUCH, ROBINSON IS STILL GOOD LAW
Several times throughout its brief, the Battery Park City Authority makes the
statement that this Court has never upheld a revival statute that “did not meet the
‘serious injustice’ standard” first adopted in Gallewski v. Hentz & Co,301 N.Y. 164,
175 (1950) (Respondent’s Brief, 37, 2). Battery Park City Authority is incorrect. In
so doing, Battery Park City Authority intentionally ignores Robinson v. Robbins Dry
Dock & Repair Co., 238 N.Y. 271, 279-80 (1924), a case of consequence and
authority, and its “reasonableness” standard.
As detailed fully in the Appellants’ briefs, in 1924, this Court upheld the
Constitutionality of a statute which revived workers’ time-barred claims for one year
because, it found, the statute was a “reasonable” response to an apparent injustice
which “call[ed] for [a] remedy”. Robinson, 238 N.Y. at 279-80 (1924).
The standard that Battery Park City Authority states is the “only” standard
that revival claims have been found to be constitutional was not adopted until the
1950 decision of Gallewski v. Hentz & Co, 301 N.Y. 164, 175 (1950), 26 years after
Robinson. Accordingly, Battery Park City Authority is incorrect that Robinson was
decided based upon the more stringent Gallewski standard, {see Respondent’s Brief,
p. 37).
1
In interpreting 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 plaintiffs not guilty
of any fault if the intention of the Legislature were not effectuated”, the Gallewski
Court created a new, more stringent standard requiring that “exceptional”
circumstances must be present and that “serious injustice” must result if the lawsuit
is barred, in order for the revival statute to be constitutional. Of import is that the
subsequent decision did not supplant the prior holding, and simply instead provided
an alternative view upon which a decision could be rendered.1 Accordingly, despite
the misplaced analysis by Battery Park City Authority, the “serious injustice”
standard is not the only standard under which revival claims have been upheld.
Crucially, the Court never overruled Robinson and implicitly relied upon its
holding in Gallewski. The Gallewski court “[chose] to treat the case within the limits
of [its] decision in the Robinson case”, 301 N.Y. at 173, and found that the revival
statute’s extension of time to bring a claim was “reasonable”. {Id. at 175, quoting
Robinson). Robinson is still good law, and this Court has in fact found a revival
statute to be constitutional under that standard.
1 In fact, this Court has applied other less strict standards, in line with the Robinson standard, as
to revival statutes involving public entities, such as Battery Park City Authority. See Ruotolo v.
State, 83 N.Y.2d 248(1994).
2
II. ALTHOUGH THE DISTRICT COURT SHOULD HAVE APPLIED
THE “REASONABLENESS” STANDARD TO THE JIMMY NOLAN
LAW, THE LAW ALSO MEETS THE REQUIREMENTS OF THE
“SERIOUS INJUSTICE” STANDARD
A. The Jimmy Nolan Law Meets The Standards Under Robinson and
Gallewski
It is the plaintiffs-appellants’ position that the Robinson “reasonableness”
standard is the appropriate standard and that the district court should have applied
that standard to the Jimmy Nolan Law. However, as addressed fully in the plaintiffs-
appellants’ Brief, the Jimmy Nolan Law satisfies both the “reasonableness” and
“serious injustice” standards.
The Jimmy Nolan Law was enacted by the New York State Legislature to
remedy the injustice caused to the first responders who were precluded from
commencing lawsuits against municipal entities due to the short notice of claim and
statute of limitations requirements for municipal defendants. The Legislature
recognized the significant hurdles in filing notices of claim within 90 days, which
included the latent nature of the plaintiffs’ injuries, the false reassurances of the
safety of the World Trade Center dust, and the difficulties that the medical
community had in making a causal connection between the plaintiffs injuries and
their exposure to the World Trade Center dust (see the “Justification” of the New
York Assembly Memorandum In Support of Legislation, Bill A7122C, 2009).
3
The Legislature’s response to this injustice was “reasonable” under Robinson.
The one-year period of time to revive these claims was limited in both scope and
duration, and was in line with other revival statutes upheld by this Court. The Jimmy
Nolan’s law was also constitutional under the standard adopted in Gallewski, in that
there were “exceptional circumstances” that warranted a remedy, as detailed above,
and that the Legislature properly recognized that “serious injustice” would ensue if
the lawsuits were barred.
B. No Remedies Other Than The Jimmy Nolan Law Were Available
To The Plaintiffs-Appellants
In addition to the stance that no revival statute has been found to be
constitutional under a standard other than Gallewski (see Point I, supra), Battery
Park City Authority’s opposition to the Appellants’ Briefs is based upon several
additional faulty premises, namely that CPLR §214-c protected the plaintiffs-
appellants from any “serious injustice” caused by the “exceptional circumstances”
outlined above, and that the plaintiffs-appellants failure to serve notices of claim was
through no fault other than their own. In all instances, Battery Park City Authority’s
stated position to this Court is misleading.
The plaintiffs-appellants were not protected from “serious
injustice” bv CPLR S214-C
1.
According to Battery Park City Authority, CPLR §214-c remedied any
“serious injustice” that may have resulted from the “extraordinary circumstances”
4
which precluded the plaintiffs from timely commencing their lawsuits against
Battery Park City Authority. Although CPLR §214-c may have extended the period
of time that the plaintiffs were required to file notices of claim and commence their
lawsuits until after their injuries were discovered, that statute did not protect the
plaintiffs-appellants from the fleeting 90-day notice of claim requirement. Argue as
they may in support of their position, Battery Park City Authority cannot ignore what
in fact occurred.
The clearest indication of the fact that CPLR §214-c did not protect the
plaintiffs was the more than 600 lawsuits that were dismissed by Judge Hellerstein
for the plaintiffs’ failure to serve notices of claim, and hundreds of cases that were
then subsequently commenced after the passage of the Jimmy Nolan Law (Vol. I:
A407). Had CPLR §214-c protected those plaintiffs, as Battery Park City Authority
states it did, the lawsuits would not have been struck in the first place. Correctly, the
legislature recognized the need for a remedy and provided it.
Although potential plaintiffs did have the opportunity under GML 50-e to
move for leave to file late notices of claim, those motions were readily denied by the
courts. See by way of example Matter of Felder v. City of New York, 53 A.D.3d 401
(1st Dep’t 2008). There was no certainty that motions for late notice of claim would
have been granted and that without the Jimmy Nolan Law the plaintiffs-appellants
would have had any relief.
5
Therefore, the plaintiffs had no protections against the short notice of claim
requirements in light of the extraordinary circumstances with which they were
straddled. Correctly, the legislature provided a remedy.
2. The plaintiffs-appellants’ failure to timely serve notices of claim
were through no fault of their own
The plaintiffs-appellants were hard-working immigrant asbestos handlers.
They entered buildings deemed to be too contaminated for the general population,
and remediated those buildings of the toxic dust and debris so that they could be
operational again. The notion that the plaintiffs-appellants’ experience as asbestos
handlers caused them to be aware of the multiple complex toxins that the World
Trade Center dust contained, the dangers that the toxic World Trade Center dust
posed to them, and the safety gear that was required to protect themselves, is
remarkable. The plaintiffs-appellants were not scientists but asbestos handlers. The
World Trade Center dust was a unique cocktail of highly alkaline 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)), and not the “exact same risks Plaintiffs exposed themselves to on jobs before
and after the World Trade Center clean up.” (Respondent’s Brief, 53). To be clear,
not even close to the same. The plaintiffs-appellants had no way of knowing what
that dust contained or the specific dangers that it posed.
6
Further, the hazard that the dust posed was not widely publicized after the
attacks, despite Battery Park City Authority’s uncited claims to the contrary
(Respondent’s Brief, 53). Rather, false statements regarding the dust’s safety were
published by the Environmental Protection Agency and the City of New York.
Lombardi v. Whitman, 485 F.3d 73 (2d Cir. 2007). The true nature of the toxic dust
and the hazards that it posed to the plaintiffs-appellants was not shared with them,
and the plaintiffs-appellants were not provided with the proper safety protections.
Unaware that they had been working in an incredibly toxic environment, it
took significant time for the plaintiffs-appellants and their doctors to properly
diagnose their symptoms and draw a causal connection between the plaintiffs-
appellants’ work in lower Manhattan and their later discovered illnesses. It often
took months, if not longer, for the injured workers to be formally diagnosed. Aware
that they were sick, but unaware of the extent of the illnesses, the illnesses’ true
nature, and their causes, the short period of time to file the notice of claim
nevertheless ran while the plaintiffs-appellants were none the wiser. The Legislature
recognized the difficulties that the plaintiffs faced bringing a lawsuit for these
transient illnesses and sought to remedy this inherent injustice.
7
III. PLAINTIFFS-APPELLANTS JOIN IN AND ADOPT THE
ARGUMENTS SET FORTH IN THE INTERVENOR-APPELLANT
NEW YORK ATTORNEY GENERAL’S BRIEFS
In addition to the arguments set forth herein, the plaintiffs-appellants
represented by the law firms of Gregory J. Cannata & Associates, LLP and Robert
A. Grochow, P.C. fully join in and adopt the arguments set forth in the New York
State Attorney General’s Briefs in support of appeal and in Reply to Defendant-
Appellee Battery Park City Authority.
CONCLUSION
The District Court should have applied the “reasonable” standard under
Robinson to the Jimmy Nolan’s Law. Regardless, under any acceptable standard
which this Court deems is applicable, 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 Battery Park
City Authority.
Dated: New York, New York
September 22, 2017
Respectfully Submitted,
GREGORY J. CANNATA & ASSOCIATES, LLP
-ROBERT A. GROCHOW, P. C.
Attorneys for Plaintiffs-Appellants
By:
Gregory J. Cannata
60 East 42nd Street, Suite 932
8
New York, New York 10165
(212) 553-9205
9
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 1,697.
Dated: New York, New York
September 22, 2017
Respectfully Submitted,
GREGORY J. CANNATA & ASSOCIATES, LLP
-ROBERT A. GROCHOW, P. C.
Attorneys for Plaintiffs-Appellants
Gregor'y J. Cannata
By:
60 East 42nd Street, Suite 932
New York, New York 10165
(212) 553-9205
10