Brennan v MacDonald (2025 NY Slip Op 03994)

PROCEDURAL SUMMARY

Appeal from an order of the Supreme Court, Nassau County (Randy Sue Marber, J.), dated May 19, 2023, in an action to recover damages for medical malpractice. The order granted those branches of defendant's motion which were for leave to amend his answer to assert certain affirmative defenses and, upon amendment, pursuant to CPLR 3211 (a) to dismiss the complaint.

HEADNOTES

Pleading - Amendment - Answer - Affirmative Defenses

1. In a medical malpractice action alleging that defendant physician failed to timely diagnose and treat plaintiff's prostate cancer resulting from his exposure at the World Trade Center site, Supreme Court providently exercised its discretion in granting defendant's motion to amend his answer to add affirmative defenses based upon plaintiff's submission of a claim for recovery under the September 11th Victim Compensation Fund (VCF). The motion was made almost on the eve of trial, with jury selection scheduled to begin the following month. Plaintiff had testified at his deposition 16 months prior to the effect that he had filed a VCF claim. Nonetheless, by filing a claim to recover from the VCF, plaintiff waived his right to bring the civil action. Defendant's delay in making the motion did not permit plaintiff to obtain a double recovery in contravention of the waiver provision of the Air Stabilization Act. Plaintiff was not prejudiced by the delay, as a party waives the right to file a civil action upon the submission of a VCF claim, not upon a recovery under that claim. Also, plaintiff was represented by counsel both in relation to his VCF claim and his civil action. Further discovery was not implicated since the waiver defense was a defense at law.

Election of Remedies - What Constitutes - Submission of Claim for Recovery under September 11th Victim Compensation Fund - Waiver of Right to Bring Civil Action - Dismissal of Medical Malpractice Action

2. Supreme Court properly dismissed plaintiff's medical malpractice action alleging that defendant physician failed to timely diagnose and treat plaintiff's prostate cancer, where plaintiff had submitted a claim for recovery under the September 11th Victim Compensation Fund (VCF) and therefore waived the right to maintain a civil action for damages sustained as a result of the terrorist attacks of September 11, 2001. While plaintiff's action was based on defendant's alleged malpractice in failing to timely diagnose plaintiff's prostate cancer, plaintiff's prostate cancer resulted, as evidenced by his filing of a VCF claim and material submitted by defendant in support of his motion, from his work in and around the World Trade Center site in the aftermath of the terrorist attacks. The lawsuit waiver was in place long before plaintiff filed his VCF claim or the action against defendant. 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.

APPEARANCES OF COUNSEL

The Law Offices of Edmond C. Chakmakian, P.C., Hauppauge, for appellant.

Gallagher, Walker, Bianco & Plastaras, LLP, Mineola (Michael R. Walker of counsel), for respondent.

The plaintiff worked in a law enforcement capacity in the vicinity of the World Trade Center site in the days following the terrorist attacks of September 11, 2001. Years later, he was diagnosed with prostate cancer. The plaintiff commenced this action against the defendant, his former primary care physician, to recover damages for medical malpractice alleging, inter alia, that the defendant delayed in diagnosing the plaintiff's{**242 AD3d at 59} prostate cancer. Additionally, the plaintiff filed a claim through the September 11th Victim Compensation Fund (hereinafter VCF), established by the federal government as title IV of the Air Transportation Safety and System Stabilization Act (49 USC § 40101 Note, as added by Pub L 107-42, 115 US Stat 230) (hereinafter the Air Stabilization Act), to receive compensation for his prostate cancer. Less than a month before jury selection was scheduled to begin in this action, the defendant moved, among other things, for leave to amend his answer to assert certain affirmative defenses and, upon amendment, pursuant to CPLR 3211 (a) to dismiss the complaint on the ground that it was barred by the Air Stabilization Act as a result of the plaintiff having filed a claim through the VCF. In an order dated May 19, 2023, the Supreme Court granted those branches of the defendant's motion. The main question we answer on the plaintiff's appeal is whether the plaintiff waived the right to maintain this civil action by submitting a claim under the VCF. We hold that he did.

The plaintiff was a Bay Constable working for the Town of Hempstead, Department of Conservation Waterways. Beginning on September 12, 2001, the plaintiff was sent by his employer to work at the World Trade Center site as a law enforcement officer. The plaintiff worked at the site for two weeks, providing security and transporting workers. Years later, the plaintiff was treated by the defendant, who was the plaintiff's primary care physician.

In 2021, the plaintiff commenced this action against the defendant to recover damages [*2]for medical malpractice. The plaintiff alleged, among other things, that the defendant delayed in diagnosing and treating the plaintiff's prostate cancer. That same year, the plaintiff filed a claim through the VCF to receive compensation for his prostate cancer.

At his deposition on July 27, 2021, the plaintiff testified, inter alia, that because of his exposure at the World Trade Center site, he was qualified to be enrolled in the World Trade Center Health Clinic and went there for annual exams. The plaintiff further testified that his prostate cancer had been certified as a World Trade Center condition and that he had signed up for "the compensation program" using a law firm. The law firm said that the plaintiff could expect to receive a certain amount of money and the law firm would receive a percentage of that amount in fee.{**242 AD3d at 60}

After the note of issue was filed and jury selection was scheduled for January 9, 2023, the defendant moved, by order to show cause dated December 19, 2022, among other things, for leave to amend his answer to assert certain affirmative defenses and, upon amendment, pursuant to CPLR 3211 (a), to dismiss the complaint on the ground that it was barred by the Air Stabilization Act as a result of the plaintiff having filed a claim through the VCF. The defendant contended that the plaintiff thus waived the right to bring a civil action (hereinafter the waiver defense). The plaintiff opposed the motion. In an order dated May 19, 2023, the Supreme Court granted those branches of the defendant's motion and directed dismissal of the complaint. The plaintiff appeals.

The plaintiff contends that the branch of the defendant's motion which was for leave to amend his answer should have been denied. The plaintiff urges that the motion was made on the eve of trial and during intensive settlement discussions, that the defendant lacked a reasonable excuse for his delay in making the motion, and that the defendant was aware of the plaintiff's claim with the VCF as early as July 2021, when the plaintiff gave testimony about that claim at his deposition, yet the defendant did not make this motion until approximately 16 months later. The plaintiff contends that he was prejudiced by the defendant's delay, as the plaintiff could have withdrawn his VCF claim and proceeded with this action had the defendant advanced the waiver defense upon learning of the plaintiff's VCF claim.

"Motions pursuant to CPLR 3025 (b) for leave to amend a pleading are addressed to the sound discretion of the court" (Greater Bright Light Home Care Servs., Inc. v Jeffries-El, 199 AD3d 777, 779 [2d Dept 2021]). "Leave to amend a pleading should be granted where the amendment is neither palpably insufficient nor patently devoid of merit, and any claimed delay in seeking the amendment does not prejudice or surprise the opposing party" (American Bldrs. & Contrs. Supply Co., Inc. v US Allegro, Inc., 177 AD3d 836, 838 [2d Dept 2019]). However, "when . . . leave is sought on the eve of trial, judicial discretion should be exercised sparingly" (Morris v Queens Long Is. Med. Group, P.C., 49 AD3d 827, 828 [2d Dept 2008]). "In exercising its discretion, the court should consider how long the amending party was aware of the facts upon which the motion{**242 AD3d at 61} was predicated, whether a reasonable excuse for the delay was offered, and whether prejudice resulted therefrom" (Haller v Lopane, 305 AD2d 370, 371 [2d Dept 2003]).

[1] Here, the motion was made almost on the eve of trial, having been made in December 2022, with jury selection scheduled to begin the following month, in January 2023. While the defendant claims, in effect, that the plaintiff did not provide certain discovery relating to the VCF claim, this does not necessarily explain why the defendant was unaware of the possible waiver defense until the time of the motion, particularly where the plaintiff gave testimony at his July 2021 deposition to the effect that he had filed a VCF claim.

Nonetheless, as further explained below, by filing a claim to recover from the VCF, the plaintiff waived his right to bring this civil action. That the defendant may have been slow in making this motion does not permit the plaintiff to obtain a double recovery in contravention of the waiver provision of the Air Stabilization Act. We find unavailing the plaintiff's contention that he was prejudiced by the defendant's delay, because the plaintiff could have chosen to withdraw his VCF claim had the waiver defense been raised earlier. As discussed below, a party waives the right to file a civil action upon the submission of a VCF claim, not upon a recovery under that claim. Also, it is noted that the plaintiff was represented by counsel both in relation to his VCF claim and in this action.

Further discovery is not implicated by the defendant's proposed amended answer raising the waiver defense, which is a defense at law. All things considered, and in the absence of a showing of prejudice, the Supreme Court providently exercised its discretion in granting that branch of the defendant's motion which was for leave to amend his answer to add affirmative [*3]defenses based upon the plaintiff's submission of a VCF claim (see Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959 [1983]; Dimoulas v Roca, 120 AD3d 1293, 1296 [2d Dept 2014]; see also Lennon v 56th & Park [NY] Owner, LLC, 199 AD3d 64, 74 [2d Dept 2021]).

The plaintiff contends that while his VCF claim is predicated on a link between his prostate cancer and his work following the September 11, 2001 terrorist attacks, his claims against the defendant are not in any manner related to the events of September 11, 2001. The plaintiff argues that his claims{**242 AD3d at 62} against the defendant are based on the defendant's failure to timely diagnose the plaintiff's prostate cancer, whatever its origin, resulting in the plaintiff requiring exceedingly more aggressive and consequential treatment. According to the plaintiff, even if there is a connection between the claims in this action and the payment he received from the VCF, the result should not be dismissal of this action; instead, his recovery here should be reduced by the amount of the VCF payment as a CPLR 4545 offset.

"In considering a motion pursuant to CPLR 3211 (a) (7) to dismiss a complaint for failure to state a cause of action, the court must afford the pleading a liberal construction, accept the facts as alleged in the pleading as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Langley v Melville Fire Dist., 213 AD3d 748, 750 [2d Dept 2023]; see Leon v Martinez, 84 NY2d 83, 87 [1994]).

In Virgilio v City of New York (407 F3d 105 [2d Cir 2005]), the United States Court of Appeals for the Second Circuit (hereinafter the Second Circuit) discussed the Air Stabilization Act and its waiver provision where the plaintiffs sought to maintain an action despite having filed claims with the VCF. The plaintiffs in Virgilio were the personal representatives of firefighters who died responding to the World Trade Center following the attacks on September 11, 2001. The complaint focused on the failure of radio-transmission equipment in the towers that prevented firefighters from receiving evacuation orders. The United States District Court for the Southern District of New York (hereinafter the District Court) directed{**242 AD3d at 63} dismissal of the complaint, noting that the Air Stabilization Act's waiver provision barred the claims. On appeal, the Second Circuit affirmed and found the plaintiffs' claims barred by their election of remedies.

The Air Stabilization Act was amended by the Aviation and Transportation Security Act (see id.). These amendments extended liability limits to certain parties, while allowing VCF claimants to sue individuals responsible for the attacks despite the waiver (see id.). The waiver provision now provides:

Applying the waiver provision, the Second Circuit agreed with the District Court that "under the plain language of the {**242 AD3d at 64}statute, claimants who have filed claims with the [VCF] have waived 'the right to file a civil action . . . for damages sustained as a result of the terrorist-related aircraft crashes of September 11, 2001' and that the waiver bars claims for 'damages sustained' against non-airline defendants" (Virgilio v City of New York, 407 F3d at 112). The Second Circuit concluded that the waiver provision was unambiguous and that the plaintiffs' claims were within the scope of the waiver provision. The Second Circuit specifically rejected the plaintiffs' contention that the waiver should not reach the defendants' alleged tortious conduct, as the defendants' acts independently caused the plaintiffs' injuries. "[I]n fact, the injuries to plaintiffs and their loved ones resulted from a series of interrelated events that began with the terrorist attack. 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" (id. at 114).

Federal courts have applied the waiver provision subsequent to Virgilio (see Gullas v September 11th Victim Compensation Fund, 2025 WL 1114645, *2, 2025 US Dist LEXIS 71814, *4 [SD NY, Apr. 14, 2025, No. 24-CV-6679 (LTS)] ["Plaintiff expressly states that she filed a claim with the VCF, and the VCF denied her claim. She therefore waived her right to bring a federal claim for the damages she allegedly sustained as a result of the September 11, 2001 terrorist attacks. The Court dismisses that claim for failure to state a claim on which relief may be granted"]; Watson v Sharpton, 2024 WL 870243, *2, 2024 US Dist LEXIS 35491, *6 [SD NY, Feb. 26, 2024, No. 23-CV-9716 (LTS)] ["With respect to his claims arising from injuries sustained in the September 11, 2001 terrorist attacks, Plaintiff does not allege any facts showing that he has not filed a claim with the VCF. In fact, he states that he has exhausted all administrative remedies with the VCF, and he attaches documents showing that he did file a claim with the VCF. The Court therefore dismisses Plaintiff's claims arising from harm he experienced as a result of the September 11, 2001 attacks for failure to state a claim on which relief may be granted" (internal quotation marks and citations omitted)]; see also Ewers v Empire State Recovery Fund, 2019 WL 13498511, *1, 2019 US Dist LEXIS 134681, *1-2 [SD NY, Aug. 7, 2019, No. 19-CV-4599 (CM)] ["Moreover, if Plaintiff filed an administrative claim, he has waived his right to file most types of lawsuits for{**242 AD3d at 65} his 9/11-related injuries, even if the VCF denied his claim"]). The VCF's implementing provisions note the waiver provision (see 28 CFR 104.61 [a]), stating, in part, "[s]ection 405(c)(3)(C) of the Act provides that upon the submission of a claim under the Fund, the claimant waives the right to file a civil action (or be a party to an action) in any Federal or State court for damages sustained as a result of the terrorist-related aircraft crashes of September 11, 2001, or for damages arising from or related to debris removal, except that this limitation does not apply to recover collateral source obligations, or to a civil action against any person who is a knowing participant in any conspiracy to hijack any aircraft or commit any terrorist act."

[2] Turning to the case at bar, the Supreme Court, upon granting that branch of the defendant's motion which was for leave to amend his answer to assert affirmative defenses based upon the plaintiff's submission of a VCF claim, properly granted that branch of the defendant's motion which was pursuant to CPLR 3211 (a) to dismiss the complaint. The complaint fails as a matter of law since, by submitting a claim under the VCF, the plaintiff waived the right to maintain this civil action for damages sustained as a result of the terrorist attacks on September 11, 2001 (see Virgilio v City of New York, 407 F3d 105). While the plaintiff seeks, in this action, to recover damages for injuries he allegedly sustained due to the defendant's malpractice in failing to timely diagnose the plaintiff's prostate cancer, the plaintiff's prostate cancer resulted, as evidenced by his filing of a VCF claim, from his work in and around the World Trade Center site in the aftermath of the attacks on September 11, 2001.

Material submitted by the defendant in support of his motion supports this conclusion. The defendant submitted the VCF personal injury claim document checklist, which provides, in part, [*5]that "[i]f the victim, a representative of the victim, a dependent, spouse, or beneficiary participated in any lawsuit related to September 11th or an eligible condition, you must provide documents showing the lawsuit was withdrawn, settled, or dismissed."

Likewise, a printout from the VCF website addresses the question of whether, where a person thinks that a product manufacturer or doctor contributed to, caused, or exacerbated that person's 9/11-related condition, the person may sue the manufacturer or doctor and still participate in the VCF. The VCF website answers that question in the negative, stating, in part,{**242 AD3d at 66}

The website continues, in part, "[t]his means that in order to be eligible for compensation, when you file your VCF claim, you must waive your right to participate in these types of lawsuits and must meet the settlement and dismissal deadlines set forth in Section 1.3 of the VCF's Policies and Procedures."

Although the plaintiff notes that the foregoing portion of the VCF website includes an "Effective Date" of July 30, 2021, there is no indication on the website that the "lawsuit waiver set out in the statute under which the VCF operates" took effect only on that date or only after the plaintiff filed his VCF claim in 2021. In fact, to the contrary, Virgilio, decided in 2005, shows that the waiver was already in place long before the plaintiff filed his VCF claim or this lawsuit.

In Branca v Brezel (81 Misc 3d 853 [Sup Ct, Queens County 2023]), the Supreme Court relied on the waiver provision of the Air Stabilization Act in granting a motion to dismiss a complaint alleging medical malpractice. In Branca, the defendants moved to dismiss the complaint for lack of subject matter jurisdiction. They contended, among other things, that the plaintiff filed for benefits under VCF prior to commencing the action and thus was estopped from proceeding in the Supreme Court. The court held that the defendants established that under the Air Stabilization Act, once the 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" (Branca v Brezel, 81 Misc 3d at 855).

The Branca court rejected the plaintiff's contention that the defendants waived their defense, as the defendants were not alleging estoppel or waiver. Rather, the defendants argued that the court lacked subject matter jurisdiction under VCF and{**242 AD3d at 67} that lack of subject matter jurisdiction was a nonwaivable defense. The court also found unpersuasive the plaintiff's contention that the VCF legislation did not anticipate an election of remedies between injuries deriving from the September 11, 2001 terrorist attack and injuries deriving from medical care sought due to the attack. The court concluded that 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" (id. at 856).

Although this Court is not bound by a trial court determination, and the Branca court specifically granted the defendants' motion to dismiss the complaint based on lack of subject matter jurisdiction, the Branca court's logic supports the conclusion that the instant action is subject to dismissal. In Branca, as here, the plaintiff sought to recover for damages allegedly sustained due to medical malpractice in failing to timely diagnose a condition sustained as a result of the September 11, 2001 terrorist attacks. As the Branca court found, "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" (id.). We reach the same conclusion here.

The complaint therefore fails as a matter of law since, by submitting a claim under the VCF, the plaintiff waived the right to maintain this civil action for damages sustained as a result of the terrorist attacks of September 11, 2001 (see Virgilio v City of New York, 407 F3d 105; see also Branca v Brezel, 81 Misc 3d 853).