UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
April 16, 2008
IN RE WORLD TRADE CENTER DISASTER SITE LITIGATION
The opinion of the court was delivered by: Alvin K. Hellerstein, U.S.D.J.
ORDER DENYING PLAINTIFFS' MOTION TO STRIKE CERTAIN AFFIRMATIVE DEFENSES
Plaintiffs move to strike defendants' affirmative defenses to the effect that plaintiff cannot recover beyond a set ceiling provided in section 408(a)(3) of the Air Transportation Safety and System Stabilization Act ("ATSSSA" or "the Act"), 49 U.S.C. § 40101. Plaintiffs ask me to make at least one of three findings: (1) that the ceiling does not apply to debris removal work, or (2) to the contractors who performed that work; or (3) that the ceiling is unconstitutional retroactive legislation.
The last time I reviewed the scope and application of the ceiling was in a jurisdictional context. I held that the Act applied to the first two weeks following September 11, 2001, when activities were focused on rescue and recovery. After that period, I ruled, the City and the contractors should be considered to be engaged in demolition, clean-up and debris removal, governed by New York's significant expertise in regulating such sites under its Labor Law. In re World Trade Center Disaster Site Litigation (Hickey v. City of New York, et al.), 270 F. Supp. 2d 357, 374 (S.D.N.Y. 2003). The Second Circuit disagreed, ruling, in dicta, that the entire clean-up period arose from, and related to, the terrorist-related aircraft crashes into the World Trade Center. In re WTC Disaster Site (McNally v. The Port Authority of New York and New Jersey, et al.), 414 F.3d 352, 379-80 (2d Cir. 2005).
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