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NEW YORK — U.S. District Judge Alvin Hellerstein refused last week to dismiss more than 3,000 lawsuits against New York City, the Port Authority of New York and New Jersey, and contractors who cleared Ground Zero that were brought by emergency workers who claimed respiratory damage and other illnesses from the cleanup after Sept. 11, 2001. But Hellerstein said in his Oct. 17 ruling it was too early in the litigation to determine whether the defendants are entitled to immunity under the New York State Defense Emergency Act or other immunity doctrines, including one claim that the federal government supervised key elements of health and safety conditions at the site and the Fresh Kills landfill on Staten Island. The act provides immunity for actions taken “in good faith carrying out, complying with or attempting to comply with” any law or order issued in response to an emergency and relating to “civil defense.” New York City, the Port Authority, contractors hired by the city to remove the debris, Silverstein Properties, and Con Edison all claimed immunity under the act as well as immunity under other provisions of state law. Earlier, the judge granted the motions to dismiss made by Silverstein Properties and Con Edison, finding they lacked control over the site in the aftermath of the terrorist attacks. But as to the city, the Port Authority, and the roughly 150 private contractors hired to clear the site, he said more information was needed before a decision could be rendered. The plaintiffs had argued that Congress, by placing a $350 million ceiling on the city’s aggregate liability, and a $1 billion special authorization in the wake of 9/11, must have recognized the city’s exposure to claims based on the debris removal and cleanup — and therefore, state and federal immunity defenses must fail. But Hellerstein disagreed, saying that although the Air Transportation Safety and System Stabilization Act, passed in the wake of 9/11, was not intended to preclude the type of suits before him, neither was it intended to preclude the assertion of immunity by the defendants. ” . . . I decline to extend the scope of federal preemption under the Act to preclude application of otherwise available state immunity defenses,” Hellerstein said. “ I further decline to bar application of federal immunity doctrines as contradictory to the alleged compensatory purpose of the act.” On a provisional basis, he said, “the case for preemption has not been made. But neither is there to be a blank check to enrich lawyers with endless stratagems of motions and delays.” Congress “legislated for the public welfare” after 9/11, Hellerstein said, and that means “speedy proceedings toward the merits, to distinguish between cases proving injuries arising from the terrorist-related aircraft crashes and from the conditions resulting from those crashes.” MASTER CLASS In a separate ruling, the judge said the litigation threatened to become “unmanageable” and that an appointment of a special master “has become necessary.” Hellerstein said two competing interests had to be weighed on the issue of immunity, “namely the need to allow for an immediate and effective response to an attack on the state as against the need to ensure persons a right of redress.” The immunity provision of the defense emergency act, he said, “operates to ensure that fear of liability will not operate to dissuade government and private entities from responding to a disaster, even in the absence of otherwise mandated safety protocols and procedures.” But as the “emergency condition fades,” he said, “the need for immunity diminishes and the obligations and duties otherwise imposed must be protected.” Trying to fix the “precise point at which the emergency condition ceased to exist” is complicated by the law’s requirement of “good faith.” And while the defendants developed “a viable health and safety plan for workers at the site,” the judge said the pleadings show there were “critical lapses in the enforcement of safety standards and in the dissemination of vital information about the safety of the air at Ground Zero to those most affected, the workers themselves.” He said that whether plaintiffs can show bad faith on the part of the government and the contractors “is a question of fact for the jury.” BIDS FOR IMMUNITY The judge then turned aside as premature the city’s argument for immunity under the New York State and Local Natural Disaster and Man-Made Disaster Preparedness Law. And as for the contractors’ claims for immunity under the disaster law, he said, the law only protects political subdivisions. The city, the contractors, the Port Authority, and the World Trade Center lessees also argued that they are entitled to immunity to the “limited extent” that they were acting at the direction of federal agencies. The defendants said that the Army Corps of Engineers had assumed control over the design and enforcement of health and safety monitoring at the Fresh Kills landfill on Staten Island, where debris from the site was taken and sorted. The Occupational Safety and Health Administration took the lead role in distributing respirators at Ground Zero, and the Environmental Protection Agency took the lead on environmental monitoring and hazardous waste removal. But at Fresh Kills, the judge said, the city “continued to exercise an independent degree of control over operations.” OSHA, he said, worked in an “advisory capacity, providing assistance only as needed and requested by the city, and the city continued to run its own tests of the air quality at Ground Zero. “The record thus shows that the city never abandoned its overall responsibility for worker health and safety,” he said. So the extent of immunity will depend on the extent to which the city and other defendants “relied upon the assistance and expertise of the federal agencies,” and on that point, Hellerstein said the record was not clear enough for a decision and the defendants motion for summary judgment was denied. “While Judge Hellerstein today did not dismiss the various WTC cases against the City, he acknowledged the critical importance and continued applicability of the legal immunities that protect the City and those who come to its aid in responding to disasters such as the WTC attacks,” Corporation Counsel Michael Cardozo said in a statement. “As the judge noted, determination of whether these immunities apply in any particular instance can involve fact-intensive considerations. We believe that as the facts fully emerge, the complex decisions that were carefully and thoughtfully made during the months after 9/11 will demonstrate the enormous good work done by the City and its contractors, and the absence of any legal liabilities.”
Mark Hamblett is a reporter for the New York Law Journal , the ALM publication in which this article first appeared.

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