N002434
The City of New York
Law Department
New York, NY
January 22, 2002
via e-mail: victimcomp.comments@usdoj.gov
Kenneth Feinberg, Esq. Kenneth L. Zwick, Esq.
Special Master Director, Office of Management
September 11th Victim Compensation Fund Civil Division, U.S. Dept. of Justice
780 Third Avenue, 22nd Floor Main Building, Room 3140
New York, New York 10017 950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530
Dear Special Master Feinberg and Mr. Zwick:
I write on behalf of the City of New York to comment upon the Interim Final Rule ("the
Rule") promulgated on December 21, 2001 to carry out the Air Transportation Safety and
System Stabilization Act ("Act"). The City respectfully submits that the Interim Rule should
be modified in a number of respects so that the regulatory scheme conforms more fully with the
purposes and language of the legislation and to ensure that the victims of the September 11th
attacks are fairly and adequately compensated.
The City concurs in large part with the comments about the Rule made by New York
Governor Pataki and New York State Attorney General Spitzer in their joint submission.
Specifically, and without repeating their contentions at length, we fully agree that:
- The Rule's treatment of economic and noneconomic losses is both unfair and
inconsistent with the Act. There is no basis in the Act for limiting recovery of lost earnings. The
Act requires that economic damages authorized by state law be awarded to a victim; New York
law, which is applicable to most claims, provides for full recovery of economic loss, including
lost earnings. Any effort to limit the recovery to something less than that amount simply finds
no support in the Act or concepts of fundamental fairness. Similarly, while presumptive
noneconomic awards will help ensure uniformity in the administration of claims, under the Act
claimants who submit evidence of their actual damages should not have to demonstrate
extraordinary circumstances in order to obtain a recovery in excess of the presumptive award.
- The eligibility provisions of the Rule are also more restrictive than those set forth in the
Act. Individuals who suffered physical harm as a result of the crashes should not be made
ineligible simply because they did not seek medical attention within 24 hours of the attack or
their rescue, or were not hospitalized or rendered disabled. Nor, if they were in fact physically
harmed because of the crashes or ensuing collapse, should they be denied a recovery because
they are unable to verify their injuries with contemporaneous medical records. These additional
requirements in the Rule engraft conditions to recovery that are not found in the Act. The Rule
should be modified so that, consistent with the Act, any persons who can show that they suffered
physical harm because of the attacks are eligible for an award.
- Upon sufficient proof of a relationship of economic dependence or interdependence,
domestic partners and other family members lacking formal legal recognition should be
considered eligible for an award.
- The rule should prohibit disclosure of information or documents about an
undocumented alien's immigration status to the Immigration and Naturalization Service.
- Only those collateral sources provided as a matter of contractual or statutory right
should be offset against an award, and, as under New York law, collateral sources should be
offset against an award only to the extent that they correspond to the particular kind of loss that
provides the basis for recovery. See Oden v. Chemung County Indus. Dev. Agency, 87 N.Y.2d
81 (1995).
Finally, because the Act clearly provides that upon submission of a claim, the claimant
waives the right to bring a lawsuit to recover damages resulting from the crashes (and because
submission of a claim may jeopardize a claimant's eligibility for worker's compensation benefits
of have other legal consequences), it is critical that the claim form devised by the Special Master
clearly state the legal consequences, or possible legal consequences, of submitting a claim. The
form should also strongly recommend that an individual seek legal advice before submitting a
claim.
Thank you very much for your consideration of these comments.
Very truly yours,
Comment By
The City of New York