Supreme Court, Queens County, October 27, 2023

Shaub, Ahmuty, Citrin & Spratt LLP (Jason R. Corrado of counsel) for defendants.

Parker Waichman LLP (Charles Silverstein of counsel) for plaintiff.

It is ordered that this motion is determined as follows:

Defendants' motion to dismiss plaintiff's complaint pursuant to CPLR 3211 (a) (2) for lack of subject matter jurisdiction is granted. Plaintiff commenced this action for medical malpractice and lack of informed consent against defendants on October 12, 2021, and issue was joined on October 26, 2021.

Defendants argue that dismissal is warranted because plaintiff elected to seek compensation for the alleged injuries through the September 11th Victim Compensation Fund (hereinafter referred to as VCF) and therefore this court lacks subject matter jurisdiction. Defendants argue that plaintiff filed an application with VCF arguing that as a Train Operator for MTA New York City Transit, he was subjected to the toxic dust from the first tower collapsing as he traversed under the World Trade Center. The documentation further demonstrated that plaintiff alleged he was subject to remedial dust from the fallen towers when train service began operating in late September 2001, and was diagnosed with malignant skin cancer in January 2021 that he argues was caused by the terrorist attacks. The documentation further noted that on July 9, 2021, plaintiff received written confirmation that he was enrolled in the World Trade Center Health Program as a "Screening-Eligible Survivor," that he would be covered for benefits related to the malignant melanoma and that his claim form had been received. Defendants argue that [*2]based upon the above, plaintiff filed for benefits under VCF prior to commencing this action, and therefore is estopped from proceeding in this forum.

Plaintiff opposes defendants' motion, arguing that defendants are liable for failing to biopsy the lesion on plaintiff's cheek, resulting in delayed diagnosis and treatment. Plaintiff argues that defendants failed to assert waiver or estoppel in their answer, nor have they moved to amend the answer, and therefore have waived this defense. Plaintiff also argues that the VCF legislation did not anticipate medical malpractice actions{**81 Misc 3d at 855} within the waiver provision, as defendants' malpractice arises from different facts and circumstances. He argues that defendants failed to cite any relevant case law, and dismissal of this action would permit defendants to proceed without consequence for their malpractice. Plaintiff argues that his melanoma was caused by the toxic dust after the 9/11 attack, but the failure to diagnose and treat the melanoma was caused by defendants' malpractice, and therefore the claims are not the same and should not be barred.

This matter is one of first impression in New York State courts, as it involves an analysis of how far the waiver provision of the VCF legislation extends to precluding civil litigation in courts. There is no question that the September 11, 2001 attack on our nation impacted our country as a whole, but New Yorkers, and in particular those living in New York City, live with a daily reminder of all we lost on that fateful day, at the very least when looking toward the iconic New York City skyline. The VCF legislation is a small step in providing relief for those brave individuals who selflessly worked in the downtown Manhattan area, before, during and after the terrorist attacks, to ensure that they can receive and obtain compensation for their sacrifices and damages. However, there is no question that the VCF legislation also included strict limitations with regard to the pursuit of remedies, which is the essence of the instant motion.

CPLR 3211 (a) (2) states that a court lacks subject matter jurisdiction when it lacks the competence to adjudicate a particular kind of controversy. (Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 243 [2d Dept 2007].) A judgment or order issued without subject matter jurisdiction is void, and that defect may be raised at any time and may not be waived because it goes to the competence of the court. (Henry v New Jersey Tr. Corp., 39 NY3d 361, 367 [Mar. 21, 2023].)

Defendants established that under Air Transportation Safety and System Stabilization Act § 405 (c) (3) (B) (i) (Pub L 107-42, title IV, 115 US Stat 230), once plaintiff filed a claim with VCF, he waived his right to file a civil action for damages relating to the attack on September 11, 2001. As plaintiff's claim with VCF was specifically for malignant melanoma on the area around his face, and plaintiff sought medical care and treatment from defendants for this condition, when plaintiff elected to seek compensation through VCF, he waived his right to proceed by civil litigation.{**81 Misc 3d at 856}

Plaintiff failed to present sufficient evidence to warrant denial of defendants' motion. It is noted that plaintiff presented no case law in support of his arguments. Plaintiff's contention that defendants waived their defense is without merit, as defendants are not alleging estoppel or waiver. Rather, defendants argue that this court lacks subject matter jurisdiction under VCF, and lack of subject matter jurisdiction is a nonwaivable defense. (See id.) Further, plaintiff's argument that the VCF legislation did not anticipate an election of remedies between injuries deriving from the 9/11 attack and injuries deriving from medical care sought due to the attack is without merit. Rather, the plain language of the statute clearly imposed a requirement that claimants choose between the risk-free compensation available under VCF and the potential risks and rewards of civil litigation. (See Virgilio v City of New York, 407 F3d 105, 113 [2d Cir [*3]2005] ["The waiver provision plainly requires litigants to choose between risk-free compensation and civil litigation. If this waiver provision is ambiguous as plaintiffs suggest, few if any statutory provisions could be viewed as clear"].) Therefore, considering the plain language of the VCF legislation, all claims related to damages sustained because of the terrorist acts on September 11, 2001, are either filed under VCF or pursued through civil litigation, but claimants cannot pursue both avenues for relief.

Plaintiff's argument that Virgilio is not relevant to this matter is without merit, as the plaintiffs in Virgilio also argued that the waiver provision should not extend to the defendants' tortious acts that independently caused injury to plaintiffs. The Second Circuit dismissed this argument, finding that plaintiffs' injuries were a result of a series of interrelated events beginning with the terrorist attacks, and therefore the waiver provision was applicable. (Id. at 114 ["Even assuming independent, successive tortious acts by both the terrorists and defendants, as we must on this motion to dismiss, we are hard pressed to find plaintiffs' damages did not result—at least in part—from the terrorist attacks"].) Looking at the totality of the circumstances, it is clear that plaintiff alleges defendants committed medical malpractice in treating him for injuries he allegedly sustained as a result of the 9/11 terrorist attacks. It is also clear that plaintiff's claim with VCF was filed in July 2021, three months prior to commencing this litigation, and the proximity of these filings evince the interrelated nature of the claims. As plaintiff elected to proceed through VCF prior to{**81 Misc 3d at 857} commencing this action, and there is evidence that the claims are sufficiently related, plaintiff's complaint must be dismissed.

Accordingly, defendants' motion to dismiss plaintiff's complaint pursuant to CPLR 3211 (a) (2) is granted, and plaintiff's complaint is dismissed.