The World Trade Center on Sept. 17, 2001. Photo courtesy of the U.S. Navy.
A Manhattan federal judge has dismissed 138 lawsuits from plaintiffs who had targeted the Battery Park City Authority over exposure to toxic dust at Stuyvesant High School following the Sept. 11, 2001, terrorist attacks, finding they were already covered by a 2010 settlement with the city and its insurer.
The cases, which were dismissed on Aug. 30, were the last of about 11,000 suits that had been filed over cleanup work near the World Trade Center. U.S. Judge Alvin K. Hellerstein in June 2010 approved a $712 million settlement agreement between rescue and cleanup workers and the city and its third-party liability insurer, WTC Captive Insurance Co.
However, 138 suits remained against BPCA for allegedly failing to maintain safe working conditions at a staging area in the high school, which is located blocks from ground zero.
|Stuyvesant H.S. vs BPCA
The plaintiffs already received settlement payments through the 2010 agreement, but argued that BPCA had supervisory authority at the Stuyvesant site and failed to take the proper steps to mitigate the effects of toxic smoke and dust, which have been linked to serious, and sometimes fatal, respiratory conditions in first responders and remediation workers.
Hellerstein, however, called those allegations "conclusory" in a 26-page opinion that granted BPCA's motion to dismiss the suits, saying it was clear from the record that the city controlled Stuyvesant and "all debris removal" that took place there in the wake of the attacks. BPCA, he said, was meanwhile shielded by an indemnification agreement with the city and the earlier settlement agreement, blocking "double recovery" for the plaintiffs in the remaining cases.
"Plaintiffs, by their own earlier settlement agreement[,] have no potential for additional recovery in the present action," Hellerstein wrote.
"Put another way, plaintiffs have already received compensation in full satisfaction of their claims against the city, the WTC, and its indemnitees. Plaintiffs stand to gain nothing further from further proceedings, even if successful, against BPCA," he said.
According to the opinion, the city's obligations stemmed from a 1987 lease, which directed the city Board of Education to indemnify BPCA for claims arising out of "any work or thing done in or on the premises." BPCA made its indemnification demand for the Stuyvesant plaintiffs' claims in 2007, and the city acknowledged its responsibility to cover the costs.
The plaintiffs had pointed to a provision in the lease agreement that exempted indemnification in cases of "negligence or wrongful act" by BPCA. But Hellerstein said a factual inquiry was "unnecessary," given his findings that BPCA had played no role in the cleanup work at Stuyvesant.
"The city cannot invoke an exception to indemnification when the city itself is the negligent party, and the alleged negligence on the part of the indemnitee is a failure to supervise and regulate the city's negligence," he said.
An attorney for BPCA was not immediately available to comment on the ruling. Counsel for plaintiffs could not be reached for comment on Tuesday.
According to court dockets, BPCA was represented by attorneys from Bracewell and Wilson Elser Moskowitz Edelman & Dicker. Counsel for the plaintiffs included attorneys from Worby Vecchio Edelman.
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Tom McParland
Tom McParland of New York Law Journal can be contacted at [email protected]. Follow him on Twitter @TMcParlandALM.
