A man who was rendered disabled by witnessing the 9/11 terror attacks at the World Trade Center is not entitled to equitable tolling to challenge the denial of benefits from his insurance company, a federal judge has held.

Joseph Viti claimed his disability was so severe that it made him miss the deadline for appealing the denial of benefits from Guardian Life Insurance Company of America and the three-year statute of limitations for an action to compel reconsideration.

All parties to the case agreed that Viti is disabled from his experience, but U.S. District Judge Andrew Carter (See Profile) of the Southern District of New York found that Viti was still responsible, and capable, of preserving his rights in Viti v. Guardian Life Insurance, 10 Civ. 2908.

“Not even Guardian questions the tragic difficulties with which Viti and his family must now live,” Carter said. “Despite the Court’s sympathy for the obvious trauma he has suffered, Viti has not presented sufficient evidence to warrant any legal relief.”

Viti was a broker at Sterling Commodities Corp. working on the floor of the Comex exchange across the street from the World Trade Center when the attacks occurred. Twenty-one brokers Viti knew were killed in the attacks, and he and fellow workers saw a friend trampled to death in the rush to evacuate their own building.

As a result, he became severely agoraphobic, withdrew from his family, and cried frequently and without explanation. He was diagnosed in 2005 with general anxiety disorder and applied for disability under Sterling’s plan.

Guardian denied benefits and warned Viti that he only had six months to make an administrative appeal. After failing to timely appeal, he filed an action in the Southern District in 2010 against Sterling and Guardian under the Employee Retirement Income Security Act (ERISA) to compel Guardian to hear his appeal.

U.S. District Judge Colleen McMahon (See Profile) dismissed two counts in the complaint against Guardian and found that a three-year statute of limitations had begun to run when Viti filed his proof of loss on Sept. 14, 2006. McMahon then referred the case to Magistrate Judge Michael Dolinger (See Profile) on the issue of whether equitable tolling should apply.

Dolinger, in a report and recommendation in 2012, concluded there were no grounds to toll the limitations period established in Viti’s disability plan.

On Wednesday, Carter adopted the report and recommendation, agreeing that Viti was not entitled to the 205 days of equitable tolling he sought, in part because he showed he was capable of pursuing his rights.

“While Viti was clearly disabled and unable to work, Viti’s successful application for Social Security benefits defeated the argument that Viti was unable to protect his legal rights,” Carter said. “Viti also failed to show that he took any steps to protect his rights during the tolled period; indeed, Magistrate Judge Dolinger noted that Viti had tried to hide the denial letter in a mail drawer after reading it.”

Viti had claimed that McMahon erred when she failed to apply a six-year limitations period, but Carter said “the law of the case” doctrine applied and, in any event, he said he agreed with McMahon’s conclusions.

Carter then considered Viti’s argument that he was entitled to the 205 days of tolling because of his general inability to function in society.

“A plaintiff seeking equitable tolling must first show that extraordinary circumstances prevented him from timely filing his action,” Carter said, and “beyond being merely extraordinary, the circumstances must be causally linked to late filing.”

But Viti was unable to distinguish his incapacity during the tolling period from any incapacity during the period around it, he said, and “Viti provides no evidence to support the bare assertion that his wife was actually the force behind his Social Security Application.”

Carter then accepted Dolinger’s finding that extraordinary circumstances did not exist in Viti’s case. He said the case that Viti cited, including one allowing tolling for a patient who was nearly brain-dead after severe cerebral hemorrhaging, “all deal with much more extreme disabilities.”

Viti, Carter said, also failed to show he acted with reasonable diligence.

“Mental incompetence alone does not excuse a plaintiff from this responsibility; he must attempt to preserve his claims and pursue his rights with reasonable diligence, with due regard for his condition,” he said. “Reasonable diligence for someone in Viti’s condition would at least require some attempt to file an appeal or bring timely action, and Viti failed to do either.”

Carter continued, “The court emphasizes, however, that this opinion is no way meant to minimize Viti’s suffering. Sitting in the Southern District this court is all too aware of the devastating effects the September 11 attacks have had on countless families.”

The judge’s decision leaves only one count alive in the action, a count for return of premiums.

Viti’s attorney, Robert Bach declined to comment.

Louis DiGiaimo of McElroy, Deutsch, Mulvaney & Carpenter in Newark, N.J., represented Guardian.