Waiver of Civil Actions After Filing a September 11th Victim Compensation Fund Claim

In the years following the September 11, 2001 terrorist attacks, Congress enacted the Air Transportation Safety and System Stabilization Act (49 U.S.C. § 40101, Pub.L. 107–42), creating the September 11th Victim Compensation Fund (VCF) to provide compensation to those who suffered injury or loss as a result of the attacks and their aftermath. In exchange for the right to file a claim with the VCF, claimants were required to waive the right to pursue a civil action for damages related to those injuries.

This statutory waiver has remained an important issue in cases where claimants later seek to bring lawsuits connected, even indirectly, to 9/11-related injuries. The recent decision in Brennan V. MacDonald, 239 N.Y. S.3d 163 (App. Div. 2d Dept’ 2025) reaffirms and clarifies this principle.

The plaintiff, a Bay Constable for the Town of Hempstead, worked at the World Trade Center site in the days following the September 11th attacks, providing law enforcement and security services. Years later, he was diagnosed with prostate cancer and filed a medical malpractice lawsuit against his former primary care physician, alleging a delayed diagnosis of his cancer. At the same time, the plaintiff also filed a claim with the VCF seeking compensation for his prostate cancer as a World Trade Center–related condition. Shortly before trial, the defendant physician moved to dismiss the malpractice claim, arguing that the plaintiff’s VCF filing barred the civil action under the waiver provision of the Air Stabilization Act.

The Appellate Division held that by filing a claim with the VCF, the plaintiff waived his right to pursue a civil lawsuit for damages related to his 9/11-related condition. The court affirmed dismissal of the malpractice case, citing both the plain language of the federal statute and consistent prior rulings interpreting it, such as Virgilio v. City of New York, 407 F.3d 105 (2d Cir. 2005)(wherein the court emphasized that the waiver applies broadly to all claims 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”), and Branca v. Brezel, 81 Misc.3d 853(Sup. Ct. Queens County 2023) (holding that once a person seeks compensation through the VCF, they cannot pursue civil litigation for injuries related to the same 9/11-connected condition). The court rejected the argument that the plaintiff could have avoided prejudice by withdrawing his VCF claim, noting that the waiver takes effect upon submission of the claim, not upon receiving payment.

This decision reaffirms that a claimant who files with the VCF, even if the claim is denied or still pending, cannot maintain a civil lawsuit for the same 9/11-related condition. The purpose of this rule is to prevent double recovery and maintain the VCF as an alternative, no-fault system for compensation.

Giulia R. Marino, Esq.