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More than 200 lawsuits against New York City filed by people who allegedly suffered injuries when exposed to toxics during 9/11 rescue-and-cleaning efforts will go forward following a Manhattan judge’s decision to allow late notices of claim. Attorneys for the petitioners argued that the majority of their clients did not realize until long after the 90-day period to file a notice of claim had expired that their symptoms � such as persistent coughs and sinus infections � might be related to the noxious atmosphere surrounding Ground Zero. The city contested the late-notice applications, arguing that the petitioners had failed to include affidavits from either themselves or their physician attesting to their injuries. As of yesterday, Manhattan Supreme Court Justice Michael D. Stallman (See Profile) had issued decisions in 17 of the 200-plus cases the city had contested on such grounds. The decisions are identical, granting the petitioners’ application to serve late notices of claim. “Contrary to the City’s argument, an affidavit from petitioners or from a physician attesting to the injuries is not required in this case,” Justice Stallman wrote in the Abdelrehim v. City of New York, 103264/06, alphabetically the first of the 17 decisions. “The notice of claim is verified on petitioners’ behalf.” The decision will be published Friday. Quoting State Farm Fire & Cas. Co. v Village of Bronxville, 24 AD3d 453, Justice Stallman added, “As a general rule, the merits of a petitioner’s claim ‘are not a factor to be considered in determining an application for leave to serve a late notice of claim.’” Courts have required a physician’s affidavit only when petitioners have cited medical problems as the reason for failing to file a timely claim, the court noted. Justice Stallman distinguished a contrary decision by Manhattan Supreme Court Justice Leland DeGrasse in a single, succinct sentence: “The Court respectfully declines to follow Augustine v. City of New York . . . 109144/05.” An attorney for the petitioners, Denise Rubin of Worby Groner Edelman & Napoli Bern, said the court had informed her that it intends to grant the remainder of the petitions the city contested on lack-of-affidavit grounds and is currently completing the paperwork. As of June 30, such petitions represent approximately 3 percent of the 6,645 claims against the city stemming from injuries purportedly suffered at Ground Zero. The decisions by Justice Stallman allow the petitioners to commence actions in federal court, which has subject matter over all claims filed under the Air Transportation Safety and System Stabilization Act of 2001, the exclusive remedy for individuals injured “sifting, removing, transporting or disposing” World Trade Center debris. City criticized The city’s decision to contest on immunity grounds each of the 6,000-plus claims for compensation by people injured during the recovery and cleanup at Ground Zero has drawn fierce criticism in recent weeks. Of the $1 billion allotted by the Federal Emergency Management Agency (FEMA), the World Trade Center Captive Insurance Company has spent $27.4 million on outside counsel. (Because the insurance fund’s earnings of $45 million have actually outstripped its expenses of $41 million, the $1 billion has grown by about $4 million.) Patton Boggs serves as the city’s lead outside counsel; McDermott, Will & Emery represents the Captive Insurance Company. “There’s not one [claim] that they say they should pay,” said Paul Napoli of Worby Groner Edelman & Napoli Bern, which serves as liaison counsel for the petitioners along with Sullivan Papain Block McGrath & Cannavo. “They believe that fighting the heroes is the best recourse for the city.” Peter E. Weiss, senior counsel for the World Trade Center Unit, represented the city’s Law Department. “The Worby firm, in contrast to almost every other firm that has submitted late notice-of-claim applications, has refused to provide sworn affidavits from its clients substantiating the application,” said Mr. Weiss. “We believe this is necessary, and are weighing an appeal.” Senator Charles E. Schumer, who shepherded the fund through Congress, sent an open letter to its chief, calling for an immediate end of the use of the money to fight claims. “Pursuing a question of the City’s immunity might be a technically appropriate legal recourse, but considering the unprecedented event of 9/11 and the $1 billion that was set aside to assist these workers, I believe it is wrong,” Mr. Schumer wrote. “When I worked with the City and the contractors, my intent, along with that of my colleagues in Congress, was to use this federal money to pay appropriate claims, not to fight claims.” That $1 billion, however, represents barely $125,000 per claim, far less than may eventually be needed. FEMA may, or may not, allocate additional funding. The city itself may also be liable for an additional $350 million, the limit set by the Air Transportation Safety and System Stabilization Act. Mark Fass can be reached at [email protected]

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