N002682
The City of New York
LAW DEPARTMENT
NEW YORK, NY
January 22, 2002
via e-mail: victimcomp.comments@usdoj.gov
Kenneth Feinberg, Esq.
Special Master
September 11th Victim Compensation Fund
780 Third Avenue, 22nd Floor
New York, New York 10017
Kenneth L. Zwick, Esq.
Director, Office of Management Programs
Civil Division, U.S. Dept. of Justice
Main Building, Room 3140
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20539
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
("the Act"). The City
respectfully submits that the Interim Final 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 independence, 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
extend 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 workers' compensation benefits or 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, 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:
Michael A. Cardozo
Corporation Counsel
The City of New York
New York, New York