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2002-01-22

Tuesday, January 22, 2002 3:00 PM
New York City's Comments on Interim Final Rule


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. 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 ("the 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 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, 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:
City of New York

2002-01-22