In Re: World Trade Center Lower Manhattan Disaster Site Litigation
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,
Battery Park City Authority, Defendant-Appellee. Peter Curley, Mary Ann Curley, Plaintiffs-Appellants, State of New York, Intervenor-Appellant,
Battery Park City Authority, Defendant-Appellee
Argued: October 5, 2016
from the United States District Court for the Southern
District of New York. No. 21 MC 102 - Alvin K. Hellerstein,
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.
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
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
M. Flannery (Eliza M. Scheibel, on the brief),
Wilson Elser Moskowitz Edelman & Dicker LLP, White
Plains, New York, for Defendant-Appellee Battery Park
Before: Lynch, Droney, Circuit Judges, and Reiss, Chief
District Judge. [*]
Droney, Circuit Judge
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
we CERTIFY these questions to the New York Court of Appeals.
Battery Park City Authority
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.
accomplish this goal, BPCA was created as a public benefit
corporation,  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).
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).
Plaintiffs' Claims Against BPCA
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.Plaintiffs'
suits, along with hundreds of others, were assigned to Judge
Hellerstein and consolidated for pretrial purposes.
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. Specifically, the district court
dismissed more than 600 suits against BPCA, and another 124
suits against other public and municipal entities.
Jimmy Nolan's Law
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.
BPCA's Challenge to Jimmy Nolan's Law
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.
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.
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. ...