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In re World Trade Center Lower Manhattan Disaster Site Litigation

United States Court of Appeals, Second Circuit

January 19, 2017

In Re: World Trade Center Lower Manhattan Disaster Site Litigation
v.
Battery Park City Authority, et al., Defendants-Appellees. 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, Dariusz Wszolkowski, Boguslaw Zalewski, Plaintiffs-Appellants, State of New York, Intervenor-Appellant, Santiago Alvear, Plaintiff-Appellant, State of New York, Intervenor-Appellant,
v.
Battery Park City Authority, Defendant-Appellee. Peter Curley, Mary Ann Curley, Plaintiffs-Appellants, State of New York, Intervenor-Appellant,
v.
Battery Park City Authority, Defendant-Appellee

          Argued: October 5, 2016

         Appeal from the United States District Court for the Southern District of New York. No. 21 MC 102 - Alvin K. Hellerstein, Judge.

         Appeal from orders of the United States District Court for the Southern District of New York (Hellerstein, J.) granting summary judgment in favor of Battery Park City Authority ("BPCA"). The district court held that BPCA, a public benefit corporation, had the capacity to raise a due process challenge under the New York State Constitution to a New York State statute that revived claims against public corporations for personal injuries sustained during the rescue, recovery, and cleanup efforts that followed the terrorist attacks of September 11, 2001. The court further held that the statute violated BPCA's due process rights under the state constitution. This appeal followed. Because we conclude that there is insufficient New York State authority on the legal standards governing these issues, we CERTIFY two questions to the New York Court of Appeals.

          Gregory J. Cannata, Gregory J. Cannata & Associates, LLP, New York, New York, for Plaintiffs- 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, Dariusz Wszolkowski, Boguslaw Zalewski.

          Paul J. Napoli (Michael Cohan, on the brief), Worby Groner Edelman & Napoli Bern, LLP, New York, New York, for Plaintiffs-Appellants Santiago Alvear, Peter Curley, Mary Ann Curley.

          Andrew W. Amend, Senior Assistant Solicitor General (Barbara D. Underwood, Steven C. Wu, Eric Del Pozo, on the brief), for Eric T. Schneiderman, Attorney General for the State of New York, New York, New York, for Intervenor-Appellant State of New York.

          John M. Flannery (Eliza M. Scheibel, on the brief), Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains, New York, for Defendant-Appellee Battery Park City Authority.

          Before: Lynch, Droney, Circuit Judges, and Reiss, Chief District Judge. [*]

          Droney, Circuit Judge

         This appeal requires us to determine whether Battery Park City Authority ("BPCA"), a public benefit corporation, has the capacity to challenge a New York State claim-revival statute as unconstitutional under the New York State Constitution, and whether that challenge succeeds on the merits. As we explain below, we believe we cannot resolve those questions without first certifying two predicate questions to the New York Court of Appeals:

(1) Before New York State's capacity-to-sue doctrine may be applied to determine whether a State- created public benefit corporation has the capacity to challenge a State statute, must it first be determined whether the public benefit corporation "should be treated like the State, " see Clark- Fitzpatrick, Inc. v. Long Island R.R. Co., 516 N.E.2d 190, 192 (N.Y. 1987), based on a "particularized inquiry into the nature of the instrumentality and the statute claimed to be applicable to it, " see John Grace & Co. v. State Univ. Constr. Fund, 375 N.E.2d 377, 379 (N.Y. 1978), and if so, what considerations are relevant to that inquiry?; and
(2) Does the "serious injustice" standard articulated in Gallewski v. H. Hentz & Co., 93 N.E.2d 620 (N.Y. 1950), or the less stringent "reasonableness" standard articulated in Robinson v. Robins Dry Dock & Repair Co., 144 N.E. 579 (N.Y. 1924), govern the merits of a due process challenge under the New York State Constitution to a claim-revival statute?

         Accordingly, we CERTIFY these questions to the New York Court of Appeals.

         BACKGROUND

         I. Battery Park City Authority

         In 1968, the New York State Legislature decided to address the "substandard, insanitary, deteriorated and deteriorating conditions" affecting Manhattan's Lower West Side. N.Y. Pub. Auth. Law § 1971. Accordingly, it created BPCA and tasked it with "replanning, reconstructi[ng] and rehabilitati[ng]" the area, with significant participation by the private sector, "for the prosperity and welfare of the people of the city of New York and of the state as a whole." Id. The redevelopment was to include the creation of a mixed commercial and residential community. See id.

         To accomplish this goal, BPCA was created as a public benefit corporation, [1] id. § 1973, and authorized to, inter alia, "sue and be sued, " "acquire, lease, hold, mortgage and dispose of real property, " "fix, establish and collect rates, rentals, fees and other charges, " and "borrow money and issue negotiable bonds, notes or other obligations, " id. § 1974. BPCA maintains its own general fund, see id. § 1975, and is solely responsible for the repayment of its bond obligations, see id. § 1979. It has seven members, each appointed by the Governor with the advice and consent of the New York Senate. Id. § 1973(1).

         BPCA has successfully developed the 92-acre site-known as Battery Park City-into a community that houses over 10 million square feet of commercial space, 13, 500 residents, 4 public schools, and 36 acres of parks. See Who We Are, Battery Park City Authority, http://bpca.ny.gov/about/who-we-are/ (last visited Jan. 13, 2017).

         II. Plaintiffs' Claims Against BPCA

         This consolidated appeal involves claims for personal injuries sustained by eighteen workers who participated in the large-scale cleanup operations across Lower Manhattan following the terrorist attacks of September 11, 2001. In the years that followed, these Plaintiffs developed a host of serious respiratory illnesses. Plaintiffs believe their illnesses stemmed from the cleanup work they had performed at several BPCA-owned properties impacted by the 9/11 attacks. Specifically, Plaintiffs believe they had been exposed to harmful toxins as a result of BPCA's failure to adequately ensure worker safety at those sites. Consequently, between 2006 and 2009, Plaintiffs filed personal injury suits against BPCA in the United States District Court for the Southern District of New York, asserting claims under New York labor law and common-law negligence.[2]Plaintiffs' suits, along with hundreds of others, were assigned to Judge Hellerstein and consolidated for pretrial purposes.

         In July 2009, the district court dismissed a substantial number of these cases, including Plaintiffs', for failure to serve a timely notice of claim upon certain public defendants as required by New York law.[3] Specifically, the district court dismissed more than 600 suits against BPCA, and another 124 suits against other public and municipal entities.

         III. Jimmy Nolan's Law

         In the wake of these dismissals, the New York Legislature enacted General Municipal Law § 50-i(4), known as "Jimmy Nolan's Law, " which revived for one year all time-barred claims against public corporations for personal injuries sustained by workers who participated in post-9/11 rescue, recovery, or cleanup efforts. See N.Y. Gen. Mun. Law § 50-i(4)(a). The Legislature explained that "thousands of World Trade Center workers ha[d] developed disabling respiratory illnesses and other injuries at rates that greatly exceed those of the general population, " and that those workers "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 casual connection between their injuries and their exposure, or were unaware of the applicable time limitations." N.Y. State Assembly Mem. Supp. Legislation, reprinted in Bill Jacket for 2009 A.B. 7122, Ch. 440, at 6 (July 17, 2009). Following the law's enactment, many workers, including Plaintiffs, revived their claims against BPCA.

         IV. BPCA's Challenge to Jimmy Nolan's Law

         In August 2014, BPCA moved for summary judgment against eight workers who had filed suit against BPCA pursuant to Jimmy Nolan's Law, challenging the law as unconstitutional. BPCA contended, first, that it had the capacity to raise such a challenge despite its status as a public benefit corporation, and, second, that the law violated its due process rights under the New York State Constitution. The Attorney General of the State of New York (hereinafter the "Attorney General") intervened to defend the law.

         The district court (Hellerstein, J.) agreed with BPCA, and granted summary judgment in BPCA's favor. In re World Trade Ctr. Lower Manhattan Disaster Site Litig., 66 F.Supp.3d 466, 468 (S.D.N.Y. 2014). In so ruling, the district court held that BPCA is an entity independent of New York State and therefore has the capacity to challenge the constitutionality of State statutes. Id. at 473. On the merits, the court held that "Jimmy Nolan's Law does not fall within the narrow exception for revival statutes" under New York law, and is "unconstitutional under the Due Process Clause of the New York State Constitution, as applied to BPCA." Id. at 476.

         On March 5, 2015, BPCA moved to extend the district court's ruling to an additional 171 workers, including Plaintiffs. Finding no relevant factual differences between those workers and the eight whose claims were previously dismissed, the district court granted BPCA's motion. In re World Trade Ctr. Lower Manhattan Disaster Site Litig., No. ...


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