The BroadshetDAILY ~ 9/30/20 ~ Federal Appeals Court Quashes Suits Against BPCA By September 11 Cleanup Workers

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Federal Appeals Court Quashes Suits Against BPCA By September 11 Cleanup Workers

September 11, 2001

A federal appeals court in Lower Manhattan on Monday dismissed the final cluster of personal injury lawsuits against the Battery Park City Authority (BCPA) arising from the cleanup of toxic debris following the terrorist attacks of September 11, 2001.

A three-judge panel of the United States Court of Appeals for the Second Circuit upheld a 2019 decision by U.S. District Court judge Alvin Hellerstein, who tossed out the same bundle of 124 suits against the Authority, brought by rescue, recovery and cleanup workers who were made sick by exposure to hazardous materials while laboring in the community during the weeks and months after the destruction of the World Trade Center.

These actions were among the last of approximately 12,000 similar lawsuits, which alleged that the Authority failed to provide safe working conditions, necessary safety equipment, or adequate warnings of potential danger for personnel who helped to decontaminate Stuyvesant High School, or else used the building as a staging facility for cleanup work within the World Trade Center complex. (The suits hinged on the fact that the City leases from the BPCA the land on which Stuyvesant is located.)

Almost all of these workers had already been compensated for whatever injuries they have suffered, by a 2010 settlement, awarding them $712 million. On this basis, the BPCA argued that the suits against it should be dismissed, pointing toward a clause in that settlement that specifically banned any recipient from recovering damages more than once. The Authority also argued that the City had direct control over the Stuyvesant High School building, and all cleanup work within the World Trade Center complex. The BPCA additionally pointed to agreements it has with the City, requiring the latter to assume all liability in such cases.

Judge Hellerstein found these arguments persuasive, writing that “plaintiffs have already received compensation in full satisfaction of their claims against the City, the WTC, and its indemnitees. Plaintiffs stand to gain nothing further from further proceedings, even if successful, against BPCA,” and noting that the cleanup workers, “by their own earlier settlement agreement have no potential for additional recovery in the present action.”

His 2019 ruling amounted to a reversal of another opinion by the same Federal Court, issued in June 2018, which allowed the same group of lawsuits to move forward. That ruling argued that, “the BCPA’s logic… would permit a public entity to challenge the constitutionality of any law that could potentially expose it to greater liability.” This was a reference to the BPCA’s argument that a State law, which originally allowed the suits to move forward (in spite of having passed the statute of limitations that would ordinarily apply), violated the State’s Constitution.

That statute is known as Jimmy Nolan’s Law, named for a carpenter employed by New York University who rushed to the World Trade Center site in the aftermath of the attacks to offer assistance. Mr. Nolan remained at Ground Zero for three weeks. Several years later, he developed serious respiratory problems, and the need for costly medications that imposed a crippling financial burden on Mr. Nolan and his family. The delay between his exposure and the onset of these symptoms put Mr. Nolan into the so-called “second wave” of victims, for whom health impacts did not begin to appear until months or years after exposure. But under the law that normally applies in such cases, people seeking compensation have only 90 days to file suit, a cut-off that is sometimes extended to 15 months. Under either of these deadlines, Mr. Nolan (and workers like him) were legally barred from seeking compensation.

For this reason, the State legislature in 2009 passed (and then-Governor David Paterson signed) a new measure, which carved out an exception to that statute of limitations. Once the law had gone into effect, more than 12,000 former Ground Zero workers filed suit against multiple defendants, including the BPCA. The vast majority of these suits were resolved by the 2010 settlement.

The Authority responded by asking a succession of State courts to quash the suits, arguing that Jimmy Nolan’s Law was illegal under the State Constitution, regardless of what the legislature said. The BPCA’s position appears to have been motivated not by any desire to deprive September 11 survivors of benefits to which they may be entitled, but by a fiduciary obligation to conserve assets until and unless legally required to pay a claim. This is underscored by the fact that, even if the plaintiffs had prevailed, the BPCA had no financial exposure, since the terms of all of its ground leases transfer liability to the lessees (in this case, the City).

A series of rulings in both State and federal courts mostly upheld in the BPCA’s position, in spite of the fact that, in 2014, then-State Attorney General Eric Schneiderman took the unusual step of filing a court brief siding with the supporters of Jimmy Nolan’s Law and against the BPCA.

In 2017, however, the State’s Court of Appeals ruled against the BPCA and sided with the plaintiffs under Jimmy Nolan’s Law, finding that the measure was “a reasonable response in order to remedy an injustice.” But the Authority continued to press its case in federal court. This led to the June 2018 federal ruling that allowed the suits to proceed. But those actions were halted by Judge Hellerstein’s dismissal last year.

This led to the appeal that was decided by the Second Circuit on Monday. The appellate panel agreed with the District Court that the BPCA, as, “an out-of-possession landlord may not be held liable for a third party’s injuries on [its] premises unless [it] has notice of the defect and has consented to be responsible for maintenance or repair,” and that the plaintiffs’ “injuries would have been caused by the City, not the independent ‘negligence or wrongful act of’ BPCA.”

In a separate (but related) development, the State has reconstituted its September 11 Workers Protection Task Force (originally formed in 2005, then disbanded several years later), to gather data about health effects on workers who participated in rescue, recovery and response at the World Trade Center. The panel will also identify limitations of existing programs for disabilities among such workers, and make recommendations to improve access and scope of these programs.

Signing the bill that will authorize the Task Force for the next five years, Governor Andrew Cuomo said, “these brave men and women selflessly put their health and safety at risk to help New York recover in the aftermath of September 11, and they deserve to be taken care of the way they took care of us. This measure will help ensure they continue to receive the care they need and that New York is able to act to meet their evolving needs.”

Matthew Fenton

Playing Hooky for Health

More Than Half of All Students at Downtown Schools Opt for Remote Learning

As children are slated to return to public elementary schools today (along with public middle and high schools on Thursday), slightly more than half of all students in nine Lower Manhattan public schools plan to stay home and focus on remote learning, according to statistics from a State Department of Health (DOH) website.

The DOH’s School COVID-19 Report Card site contains preliminary data about how many students are expected to return to each school throughout the State, relative to the overall size of every school’s student body.

The nine Downtown schools included in this analysis are P.S/I.S. 276, P.S. 89, I.S. 289, P.S. 234, P.S. 343 (Peck Slip), P.S. 397 (Spruce Street), and P.S. 150, as well as Millennium High School and Stuyvesant High School. To read more…

CLASSIFIEDS & PERSONALS

Swaps & Trades

Respectable Employment Lost and Found

To place a listing, contact editor@ebroadsheet.com

DOWNTOWN CALENDAR

Wednesday September 30

11AM

Battery Park City Authority in Wagner Park

Wagner Park, with its amazing gardens and views of the Hudson River and New York Bay, is the perfect setting to practice your art. Participants are expected to bring their own drawing and painting supplies, including drawing boards and containers of water if they are planning to paint. BPCA will supply drawing paper and watercolor paper only. Program is first come, first served for up to 20 participants. Masks and contact information required upon arrival. Art-making is self-guided. Participants must remain 6 ft apart for the duration of the program. All programs will be held in accordance with New York State reopening guidance.

12NOON

Poets House

Prolific poet and interdisciplinary artist Heid E. Erdrich reads from Little Big Bully (Penguin, forthcoming 2020), from Minneapolis, MN.

1:30PM

9/11 Memorial & Museum

A weekly bagpipe tribute honors those who died on 9/11 as well as those who are sick or who have died from exposure to hazards and toxins in the aftermath of 9/11. Bagpipers play near the 9/11 Memorial Glade.

3PM

Meeting of the Members of the Authority

The Meeting will be livestreamed at: bpca.divacommunications.com/bpca-live/

and a video recording made available for post-meeting access via the Battery Park City Authority website. For more information please visit: bpca.ny.gov/about/board-committees/

6PM

Skyscraper Museum

Over the fall of 2020, The Skyscraper Museum will present a series of webinar sessions designed as a free online course on the early development of the skyscraper as a distinct building type.

This week’s topic is Masonry to Steel, 1870s-1890s: How and When Masonry Systems of Construction Transitioned to Steel.

Viewers will experience a pair of programs—led by New York structural engineer Donald Friedman, author of The Structure of Skyscrapers in America, 1871–1900, and historian of Chicago Thomas Leslie—which revisit the fabled architectural rivalries of America’s largest and most innovative cities. Their talks will keep a tight focus on the key decades of the 1870s, the beginning of the end of “the age of masonry,” and the dawn of mass-production of rolled steel I-beams, which from the mid-1880s offered new economies for construction. Yet the eventual marriage of masonry and metal took time to birth the full steel skeleton, often called “the Chicago frame.”

Leslie and Friedman will explore the ways that traditional bearing walls enlarged window openings to illuminate interior workspaces until the wall became, in effect, a frame, and how hybrid systems of “cage construction” served practical purposes and were slow to disappear in practice. Both emphasize how construction moved toward industrial materials to reduce the cost of skilled labor, especially bricklayers. In Friedman’s succinct formulation: modern structure is industrialized structure. These programs will build on several past lectures at The Skyscraper Museum by both speakers: the videos of these previous talks are highly recommended as background for this discussion.

6PM

Battery Park City Authority in Wagner Park

Namaste! Unwind from the day with outdoor yoga. Immerse yourself in this meditative practice- surrounded by the Hudson’s peaceful aura. Strengthen the body and cultivate awareness in a relaxed environment as your instructor guides you through alignments and poses. All levels are welcome. Participants are expected to bring their own equipment: yoga mat, water, weights, hand towel etc. Program is first come, first served for up to 20 participants. Masks and contact information required upon arrival. Spatial parameters will be set. Participants must remain 6 ft apart for the duration of the program. All programs will be held in accordance with New York State reopening guidance. Wagner Park.

Getting a Corner on the Market

Retail Developer Wins Years-Long Struggle for Control of Legendary Bank Building

When the financial upheaval unleashed by the pandemic coronavirus begins to settle, a long-neglected local landmark may resume its erstwhile status as an iconic Lower Manhattan public space.

The building, 23 Wall Street (at the corner of Broad Street), is a former tabernacle of American capitalism. To read more…

‘A Fraudulent Scheme’

FiDi Renters Win Recompense for Years of Illegal Rent Overcharges

Rentals tenants in a Financial District building, who sued their landlord to demand restitution for years of illegally high rent, have won a $5-million settlement. The building is the luxury rental tower at 63-67 Wall Street.

Last November, Tallen Todorovich, a renter in 63-67 Wall Street filed suit, seeking class-action status on behalf of all current and former tenants, and alleging that they had not been given rent-stabilized leases for their apartments, even though the building received tax abatements under a program intended for rent-stabilized buildings.

This action (along with half a dozen other, similar suits) stemmed from a June, 2019 ruling by New York State’s highest court, which found that as many as 5,000 Lower Manhattan apartments had been illegally deprived of rent stabilization benefits.

Bionomics Begins at Home

BPCA Launches Ten-Year Sustainability Plan

The Battery Park City Authority (BPCA) has begun implementation of a landmark plan to “achieve progressive sustainability targets over the next decade, and lay the groundwork for continued sustainability action after 2030.”

The Battery Park City Sustainability Plan focuses on three broad categories of goals.

• The first of these is “Resource Management & Reduction,” which aims to reduce the demand for energy and water in the community, while promoting reuse of resources and minimizing waste.

• The second, labeled “Innovation & Inspiration,” seeks to leverage Battery Park City initiatives as scalable models for other urban developments around the nation and the world.

• And the third, termed “Education & Collaboration” is designed to raise local awareness of sustainability-related issues and actions.

Pull Down the Shades!

City Council Backs Study of Drones to Inspect Buildings

Lower Manhattan skies may soon be slightly more crowded. The City Council on Wednesday enacted legislation authorizing the Department of Buildings to study the feasibility of conducting facade inspections using the small, robotic aircraft known as drones.

City law requires such facade inspections every five years for all buildings taller than six stories. These reviews are usually performed by contractors suspended from the roof of each structure, but the danger of such overhead work requires the installation of the unsightly scaffolds commonly known as sidewalk sheds.

The impact of such a program would likely be especially significant in Lower Manhattan. To read more…

Quatrain Alley

Words Come to Life Amid New Installation in Battery Park City

Poets House—a library, creative space, and meeting place that invites poets and the public to step into the living tradition of poetry, while cultivating a wider audience for the art—will celebrate its tenth anniversary in Battery Park City by launching the Poetry Path, an immersive public art installation running the northern length of Battery Park City, from Rockefeller and Teardrop Parks to the North Cove Marina. To read more…

Rice and Beans

They are better

together.

Me and Jayden

We are better

together.

Josh, PS1 student

TODAY IN HISTORY

SEPTEMBER 30

A C-74 Globemaster plane at Gatow airfield with more than 20 tons of flour

from the United States

1399 – Henry IV is proclaimed King of England.

1791 – The first performance of The Magic Flute, the last opera by Mozart to make its debut, took place at Freihaus-Theater auf der Wieden in Vienna, Austria.

1882 – Thomas Edison’s first commercial hydroelectric power plant (later known as Appleton Edison Light Company) begins operation on the Fox River in Appleton, Wisconsin, United States.

1888 – Jack the Ripper kills his third and fourth victims, Elizabeth Stride and Catherine Eddowes.

1915 – A Serbian Army private becomes the first soldier in history to shoot down an enemy aircraft with ground-to-air fire.

1927 – Babe Ruth becomes the first baseball player to hit 60 home runs in a season.

1938 – The League of Nations unanimously outlaws “intentional bombings of civilian populations”.

1943 – The United States Merchant Marine Academy (USMMA) at Kings Point, New York was dedicated by President Franklin D. Roosevelt.

1949 – The Berlin Airlift that began in 1948 ends. At the end of the Second World War, U.S., British, and Soviet military forces divided and occupied Germany. Also divided into occupation zones, Berlin was located far inside Soviet-controlled eastern Germany.

1954 – The U.S. Navy submarine USS Nautilus is commissioned as the world’s first nuclear reactor powered vessel.

1955 – Film star James Dean dies in a road accident aged 24.

1968 – The Boeing 747 is rolled out and shown to the public for the first time at the Boeing Everett Factory.

1982 – Cyanide-laced Tylenol kills six people in the Chicago area. Seven are killed in all.

1986 – Mordechai Vanunu, who revealed details of Israel’s covert nuclear program to British media, is kidnapped in Rome, Italy by the Israeli Mossad.

Truman Capote

Births

1861 – William Wrigley, Jr., American businessman, founded Wrigley Company (d. 1932)

1915 – Lester Maddox, businessman and politician, 75th Governor of Georgia (d. 2003)

1917 – Buddy Rich, American drummer, bandleader, and actor (d. 1987)

1924 – Truman Capote, American author, playwright, and screenwriter (d. 1984)

Capote earned the most fame with In Cold Blood, a journalistic work about the murder of a Kansas farm family in their home.

1946 – Jochen Mass, German race car driver

Deaths

954 – Louis IV of France (b. 920)

1955 – James Dean, American actor (b. 1931)

1978 – Edgar Bergen, American actor and ventriloquist (b. 1903)

1985 – Charles Francis Richter, American seismologist and physicist (b. 1900)

1989 – Virgil Thomson, American composer and critic (b. 1896)

Credits include wikipedia and other internet sources

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