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 filed a New York medical malpractice lawsuit against his former primary care physician to recover damages for medical malpractice alleging that the defendant delayed in diagnosing the plaintiff’s prostate cancer. Additionally, the plaintiff filed a claim through the September 11th Victim Compensation Fund (VCF), established by the federal government as Title IV of the Air Transportation Safety and System Stabilization Act of 2001 (49 USC § 40101, as added by Pub. L. 107–42, 115 U.S. Stat. 230) (the Air Stabilization Act), to receive compensation for his prostate cancer.
Less than a month before jury selection was scheduled to begin, the defendant moved 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 plaintiff appealed.
The Supreme Court of the State of New York Appellate Division Second Judicial Department stated in its Opinion & Order dated July 2, 2025: “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 New York appellate court explained: “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 … 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, 2011 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.”
Source Brennan v. MacDonald, 2023-06606.
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