dojW000749.xml

dojW000749.xml

born-digital

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2001-11-01

November 1, 2001
Dear Acting Associate Attorney General Perry:
We submit this letter to set forth the comments of the State of New York and the City of
New York on the recently enacted Air Transportation Safety and System Stabilization
Act ("ATSSSA") and, specifically, the provisions establishing procedures and standards
for compensating victims who suffered injury or death as a result of the September 11th
terrorist attacks.
As you undoubtedly appreciate, New Yorkers and other injured in New York as a result
of the terrorist attacks at the World Trade Center constitute the vast majority of those
harmed on September 11th. To be an effective and meaningful vehicle for victim
compensation, the ATSSSA must be interpreted and administered in a manner that gives
full force to Congress' clear statement of the purpose of ATSSSA, which is "to provide
compensation to any individual (or relatives of a deceased individual) who was
physically injured or killed as a result of the terrorist-related aircraft crashes of
September 11, 2001." §403.
The attached memorandum sets forth our comments and recommendations in detail. As
you will see, based upon the language of the statute and the intent of Congress, we
recommend that the regulations:
* provide that all individuals in New York City physically harmed by the airline crashes,
the collapse of the World Trade Center, or the smoke and debris resulting from those
events are eligible to submit claims for compensation;
* ensure that the individuals working to extinguish the ongoing fires, clear debris, and
recover remains, including the police officers, firefighters, construction workers and
other emergency personnel who have been injured during this difficult effort, are not
excluded from the claims process:
* make clear that individuals who suffered any physical harm are able to file claims;
* define the "personal representative" of the decedent who may file a claim according to
state estate law;
* provide that a victim's compensation include any pecuniary losses specifically
enumerated in the statute, as well as any other compensable under state law; and
* make clear that a claimant's compensation may be reduced only by the amount of the
collateral source compensation the claimant is legally entitled to receive as a result of the terrorist-related aircraft crashes of September 11, 2001.
The issue of collateral source compensation is of particular importance. ATSSSA defines
the term "collateral source" as "all collateral sources, including life insurance, pension
funds, death benefit programs, and payments by Federal, State, or local governments
related to the terrorist-related aircraft crashes of September 11, 2001." §403(4). As the
attached memorandum makes clear, statutory language, the intent of Congress, analogous
provisions of New York State law, and public policy all point to a definition of
"collateral source" that includes only legally-required monetary payments, and not
assistance from family and friends, charitable contributions in-kind benefits, or payments
contingent upon future events.
Finally, we offer various suggestions for the claims form and the rules for submission of
evidence. For example, while documentation should be required for establishing medical
expenses, it should not be required to demonstrate physical harm, because many
individuals who were physically harmed either did not seek medical attention or received
medical care at a triage location where no documentation was kept. Liberal procedures
should permit claimants to present newly discovered evidence of harm or other
losses(e.g., latent injuries or future medical expenses).
Thank you for considering our views on this important matter. If you have questions
regarding any of the issues discussed in this letter or the attached memorandum, please
feel free to contact Counsel to the Governor James McGuire, Deputy Attorney General
Debra Cohn or Deputy Counsel to the Mayor Larry Levy.
We look forward to working with you to serve all the victims of the September 11th
terrorist attacks.
Sincerely,
Comments by:
James McGuire, Counsel to Governor George Pataki
David Nocenti, Counsel to Attorney General Eliot Spitzer
Dennison Young, Jr., Counsel to Mayor Rudolph Giuliani

Attachment 1
COMMENTS OF THE STATE OF NEW YORK AND THE CITY OF
NEW YORK ON THE AIR TRANSPORTATION SAFETY AND SYSTEM STABILIZATION ACT

This memorandum sets forth the comments of the State of New York and the City of
New York on the recently enacted Air Transportation Safety and System Stabilization
Act ("ATSSSA"). In particular, the memorandum comments on ATSSSA's procedures
and standards for compensating victims who suffered injury or death as a result of the
September 11th terrorist attacks.
Title IV of ATSSSA, which is the "September 11th Victim Compensation Fund of 2001,"
establishes two vehicles for victims to obtain compensation: 1) a claims process
administered by the Attorney General, acting through a Special Master; and 2) a federal
cause of action with exclusive jurisdiction in the Southern District of New York. This
memorandum concerns the former, the administrative claims process.
ATSSSA states that "the purpose of this title [is] to provide compensation to any
individual (or relatives of a deceased individual) who was physically injured or killed as
a result of the terrorist-related aircraft crashes of September 11, 2001." §403 (emphasis
added). New Yorkers and others injured in New York as a result of the terrorist attacks at
the World Trade Center constitute the vast majority of those harmed and the regulations
issued by the Department of Justice must fulfill the intent of Congress by ensuring that
full compensation is provided to all such victims.
I. POTENTIAL CLAIMANTS.
A. INDIVIDUAL VICTIMS.

The ATSSSA defines individuals who are eligible to file a claim with the Special Master
as:
(A) an individual who-
(i) was present at the World Trade Center, (New York, New York), the Pentagon
(Arlington, Virginia), or the site of the aircraft crash at Shanksville, Pennsylvania at the time, or in the immediate aftermath, of the terrorist-related aircraft crashes of September 11, 2001; and
(ii) suffered physical harm or death as a result of such an air crash;
(B) an individual who was a member of the flight crew or a passenger on [the aircrafts
subject to terrorist-related crashes on September 11, 2001;] or
(C) in the case of a decedent who is an individual described in subparagraph (A) or (B),
the personal representative of the decedent who files a claim on behalf o the decedent.
Sec. 405(c)(2)
Thus, certain terms are critical to determining the eligible claimants: 1) "was present at
the World Trade Center, New York, New York," §405(c)(2)(A); 2)"the immediate
aftermath" id.; 3) "suffered physical harm" §§405(a)(2)(B)(i), 405(c)(2)(A); and
4)"personal representative of the decedent," §405(c)(2)(C). This memorandum discusses
each in turn. The proposed definitions and standards set forth below aim to fulfill the
congressional purpose of compensating all the victims. Where appropriate, references to
New York law are provided. The proposals also draw on definitions, standards, and
procedures used by federal, state, and local government agencies to identify and provide
services to the victims of the World Trade Center tragedy. Finally, several other goals
helped shape the proposed definitions: equity among victims; administrative ease; and
discouraging fraud and abuse.
1. "Present at the World Trade Center, New York, New York"

The phrase "present at the World Trade Center, New York New York" should be defined
to cover al individuals in New York City harmed by the airline crashes, the collapse of
the World Trade Center, or the smoke and debris resulting from those events. The vast
majority of those victims were located in Manhattan south of 14th Street, but the
regulations should ensure that individuals outside that area, who also were physically
harmed, are allowed to file claims.
The federal, state, and local governments already recognize that the effects of the World
Trade Center attacks extended beyond the narrow confines of the twin tower complex.
On September 13, 2001, President Bush signed a disaster declaration, making individuals
in all five counties in New York City eligible for assistance. On September 11, New
York City Police Department closed all streets in Manhattan south of 14th Street. Debris
was found in parts of Brooklyn and Queens. For several days following the attack, the
"red zone" restricted area included all of Manhattan south of 14th Street. Even now, more
than a month after the crashes, the restricted area exceeds a 16 acre zone.
FEMA's Mapping and Analysis Center (MAC) received remote sensing data on the days
after the attacks, indicating that areas affected by the disaster were far-reaching. The
available information documents that the ash and debris traveled across all of downtown
Manhattan. A photograph of lower Manhattan taken on September 12, 2001, shows that,
even 24 hours later, the ash and debris continued to travel north of Chambers Street and
across the East River into Brooklyn.
Defining "present at the World Trade Center, New York, New York," as covering all
individuals who were in New York City who were harmed by the airline crashes, the
collapse of the World Trade Center, or the smoke and debris resulting from those events,
would ensure that all individuals who were physically harmed as a result of the crashes of
September 11, can file claims, while offering administrative ease to the Department of
Justice. An alternative definition would frustrate congressional purpose and consign
victims physically harmed by the terrorist attacks to an uncertain future by being forced
to litigate in the Southern District of New York.
2. "At the Time, or the Immediate Aftermath"

The World Trade Center disaster response is still continuing. Although most of the areas
in Manhattan outside the "red zone" have been cleared of debris, the "red zone" itself
remains an active disaster site, with fires still burning, and the search for bodies
continuing. Just as a forest fire does not end the moment it is lit, but continues until the
fire is extinguished, so too does the World Trade Center disaster. Undoubtedly, Congress
intended that the firefighters, police officers and other emergency and construction
workers who continue to work at the site should be covered by the victim compensation
scheme.
In light of the congressional intent, and the Presidential disaster declaration, the phrase
"at the time or the immediate aftermath" should be defined to continue until the fires
have been extinguished, the debris cleared, and a determination has been made that no
other bodies remain at the site.
3. "Suffered Physical Harm"

ATSSSA provides that a person is eligible under the statute if he or she meets the
"present at" requirement and suffered "physical harm" or death as a result of one of the
crashes. §405 (c)(2)(a)(ii). The regulations, therefore, should make clear that an
otherwise eligible person may apply for an award as long as he or she can show any
physical harm. This is consistent with the purpose of the statute, which is to compensate
"any individual" who was physically injured or killed as a result of the aircraft crashes of
September 11, 2001. §403. Neither the statement of purpose nor the eligibility language
requires that the injury or harm be "serious" or otherwise meet an arbitrary threshold. Cf.
29 U.S.C. §654(a)(l) (OSHA imposes duty on employer to provide working environment
free from hazards likely to cause death or "serious physical harm"; 30 U.S.C. §1291(8)
(Surface Mining Control and Reclamation Act of 1977 addresses condition which could
reasonably be expected to cause "substantial physical harm" to persons outside permit
area); 42 U.S.C.§14952 (b)(1)(Secretary of State may waive laws governing intercountry
adoptions to prevent "grave physical harm" to child); N.Y. Ins. Law §§5102, 5104
(person injured in automobile accident can bring pain and suffering claim only if he
suffered "serious injury"); Oberly v. Bangs Ambulance, Inc., 96 N.Y. 2d 295 (2001)(No-
Fault Law requires "serious injury" before injured party may bring tort action for
noneconomic loss, pain and suffering). Although victims who suffered any physical harm
should be allowed to file a claim, the amount of the award, of course, will depend upon
the extent of the harm to the claimant. §§405(b)(1)(B)(i) and (ii).
B. "PERSONAL REPRESENTATIVE" OF INDIVIDUAL VICTIMS.

"Personal representative" should be defined according to applicable state law. The New
York Estates, Powers, and Trusts Law ("EPTL") defines a "personal representative" as "a
person who received letters to administrate the estate of a decdent". EPTL §1-2.13. A
person who receives letters to administrate a decedent's estate must be either a
"distributee" (a decedent's adopted or biological relative) if the person died without a
will, a person named as executor or executrix if decedent had executed a will, the public
administrator (if decedent dies without known relatives or a will), or a person appointed
by the court as temporary administrator. EPTL §§4-1.1; 5-4.1; 5-4.5; N.Y. Surr. Ct. Proc.
Act. §1001.
Letters of administration must be granted to persons who are distributees of a person who
died without a will in the following order: surviving spouse; children; grandchildren;
parents; siblings; and then any other persons who are distributees.. N.Y. Surr. Ct. Proc.
Act §1001. The distributees also may consent, if unanimous, to appointment of a non-
distributee. Id. §§ 1001. 1002. A personal representative of a deceased may bring a
wrongful death action on behalf of the distributee of the deceased to recover the
pecuniary damages suffered by the distributee as a result of the decedent's death, EPTL
§5-4.1; see EPTL §§4-1.1,5-4.5, or an action to recover for injuries, including conscious
pain and suffering, suffered by the decedent prior to his death EPTL §11-3.1.
The damages recovered in a wrongful death action are to be distributed by the personal
representatives to the relatives of the deceased as specified in EPTL §§4-1.1, 5-4.4(a) and
5-4.5, without going through the estate, and in proportion to the pecuniary injuries
suffered by each of them. EPTL §5-4.4(a)(l).
II. AMOUNT OF COMPENSATION.

The ATSSSA provides that "the amount of compensation is based on the harm to the
claimant, the facts of the claim, and the individual circumstances of the claim."
§405(b)(ii). The Special Master will determine the extent of the harm to the claimant,
including any economic and noneconomic losses. §405(b)(1)(B)(i)
A. ECONOMIC LOSSES.

ATSSSA defines the term "economic loss" to mean:
any pecuniary loss resulting from harm (including the loss of earnings or other benefits
related to employment, medical expense loss, replacement services loss, loss due to
death, burial costs, and loss of business or employment opportunities) to the extent
recovery for such loss is allowed under applicable State law.
§402(5). The state law applicable to the victims harmed in New York will in most
instances be New York law. See generally Babcock v, Jackson, 12 N.Y. 2d473 (1963).
New York law allows all the types of economic loss enumerated in ATSSSA. Consistent
with ATSSSA's purpose - - "to provide compensation to any individual (or relatives of a
deceased individual) who was physically injured or killed as a result of the terriorist-
related aircraft crashes of September 11, 2001" - ATSSSA and New York law in a
wrongful death action allow for recovery of all pecuniary losses resulting from the
decedent's death. See EPTL § 5-4.3 (damages in wrongful death action consist of fair and
just compensation for "pecuniary injuries" suffered by distributees of decedent including
but not limited to medical, nursing and attention expenses, funeral expenses); Loetsch v.
New York City Omnibus Corp., 291 N.Y. 308 (1943) (pecuniary losses include loss of
financial support); EPTL §5-4.3, Practice Commentaries (pecuniary losses
Attachment 2
Wasau Business Insurance Companya/s/o Central Synagogue v. Turner Construction Co.,
et al., No. 99 CIV 0862 (RWS)(amicus brief)

Attachment 3
New York Crime Victims Board Website

2001-11-01