Wtc Families for a Proper Burial v. City of N.Y.
| Decision Date | 07 July 2008 |
| Docket Number | No. 05 Civ. 7243(AKH).,05 Civ. 7243(AKH). |
| Parties | WTC FAMILIES FOR A PROPER BURIAL, INC.; Kurt and Diane Horning; Anthony and Gloria Ingrassia; Arthur and Arlene Russo; Jagdish and Indira Bhukhan; Catherine and Albert Regenhard; Monica Gabrielle; Rosemary Cain; Kristen Breitweiser; Mindy Kleinberg; Lorie Van Auken; and Camille and William Doyle, Plaintiffs, v. The CITY OF NEW YORK; Michael R. Bloomberg, Mayor of the City of New York; John J. Doherty, Commissioner of the New York City Department of Sanitation; and Amanda M. Burden, Chair of the New York City Department of City Planning, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Steven J. Hyman, Aimee Elizabeth Saginaw, McLaughlin and Stern, LLP, New York, NY, Jeffrey Russo, McLaughlin & Stern, LLP, Phillipsburg, NJ, Norman H. Siegel, Norman Siegel, Attorney at Law, New York, NY, for Plaintiffs.
Anthony Joseph Staltari, Latham & Watkins, LLP, James Edward Tyrrell, Jr., Patton Boggs, LLP, Newark, NJ, Michael Douglas Steger, Law Offices of Michael D. Steger, PC, New York, NY, for Defendants.
OPINION GRANTING DEFENDANTS' MOTION TO DISMISS
The terrorists of September 11, 2001 murdered 2,749 people in Towers One and Two of the World Trade Center. Approximately 1,100 of the victims perished without leaving a trace, utterly consumed into incorporeality by the intense, raging fires, or pulverized into dust by the massive tons of collapsing concrete and steel. Full bodies were recovered for only 292 victims, and partial remains were found for another 1,357 victims—sometimes a fragment of bone or a possession, sometimes more. City workers and contractors have inspected every bit of debris and, using sophisticated equipment, sifted the particles of debris to the extent of one-quarter inch of diameter, the space between the concentric circles of a small paper clip, with no further success. All human remains that could be identified, were identified. Only dust remains.
Plaintiffs, brought this lawsuit to force the City to reclaim the finely-sifted residue of the World Trade Center debris at the City's Fresh Kills landfill in Staten Island, move it to a more suitable location, and create a cemetery for the 1,100 who perished without identifiable remains. If no identifiable remains can be detected, plaintiffs argue, the ground itself has become hallowed. Plaintiffs allege that the City's failures violate their Constitutional rights to bury their deceased sons and daughters and next of kin, and that this lawsuit can bring redress.
The City denies that plaintiffs have constitutional rights to vindicate, or standing to sue, or that the City violated any constitutional or statutory rights or obligations. There are no remains to bury, the City argues, and plaintiffs have rejected the City's offers to create a memorial. The City moves to dismiss the case.
As the presiding judge, I have made repeated efforts to bring the parties to an amicable solution, without success. The City has offered a memorial, but the plaintiffs insist on a cemetery. Further postponement of the issues raised by this lawsuit will not benefit anyone. My task is to examine the pleadings challenged by the City and affidavits submitted by both sides, and, if the City is correct that there are no constitutional rights to redress, to rule accordingly.
The City of New York assumed control of the World Trade Center site immediately following the devastating events of September 11, 2001. The first task was to search the site for people who could be saved, but there were few. The enormous tons of tangled debris left by the collapsed buildings had to be cleared even while searching for possible survivors and the remains of those who had perished. A closed landfill at Fresh Kills, Staten Island, that long had been the City's garbage dump, was chosen as the most practicable, and perhaps only, site to receive the cleared debris. Almost immediately, beginning September 12, 2001, debris was moved there, by truck and by barge. All visible human remains were carefully removed at every stage, wherever and whenever found, bagged and brought to City-established collecting and preserving points. At Fresh Kills, the debris was off-loaded on a hill in the landfill, subjected to close examination, and pushed down the hill to make room for the next load.
The amended complaint alleges that for approximately the first month of the cleanup operation, the materials were sifted using rakes and shovels. Once the debris had been examined, it was bulldozed over the side of the hill to make room for new loads of debris. The amended complaint alleges that this initial mode of review did not sufficiently allow the Defendants to locate human remains that were commingled with the debris.
Beginning on or about October 14, 2001, Defendants retained Taylor Recycling Facility LLC ("Taylor") and Yannuzzi Disposal Services, Inc. ("Yannuzzi") to use machinery to sift through the debris. The mechanized sorting process sifted debris to one-quarter inch in diameter, and was far more effective in locating human remains than the process previously used. The amended complaint also alleges that the debris that was examined using rakes and shovels during the first month of the cleanup effort was never reexamined using the Taylor and Yannuzzi machinery. The amended complaint alleges that of the 1.651 million tons of debris that was moved to Fresh Kills, only 1.05 million tons were searched using the mechanized process. According to the amended complaint, of the 601,000 tons that were not mechanically searched, approximately 187,000 tons were comprised of steel, leaving 414,000 tons "unsifted". Defendants' affidavits take issue with these assertions, and attest that the "unsifted" debris was re-sifted after the mechanized process was implemented.
The amended complaint alleges that material that remained after sifting, the "fines", contained undetectable particles of human remains. Plaintiffs allege that they were repeatedly assured by Federal and State officials that the fines would be kept separate from the remainder of the debris and would eventually be transferred to a more appropriate location. Instead, plaintiffs allege, the fines were mixed with the garbage in the Fresh Kills dump.
In July 2002, family members of 9/11 victims visited the Fresh Kills landfill, and were allegedly told by a recovery worker that millings, or dividers, had been put down to separate the fines from the rest of the debris. The family members sent a letter to the Office of the Mayor and the Department of Sanitation, inquiring whether there were plans to move the fines to a more appropriate location. Plaintiffs allege that in July 2002, Christy Ferer, Mayor Bloomberg's liaison to the family members, responded via letter stating that options for suitable locations for the fines were being considered, and that the fines were being "set aside and maintained with reverence".
The amended complaint alleges that, in contrast to what plaintiffs were told, the fines were not kept separate, and the City did not formulate a plan to remove the fines from Fresh Kills to a more suitable location. The amended complaint acknowledges that the City claims that costs would be prohibitive, but alleges that the City's calculations are inflated.
In November 2003, WTC Families For a Proper Burial, Inc. was incorporated as a not for profit corporation under the laws of New York, with the stated purposes of representing the bereaved families, retrieving the remains of 9/11 victims located at Fresh Kills, and providing a proper burial and resting place for the remains. WTC Families purports to act on behalf of approximately 1,100 families who lost relatives in the September 11 attacks but whose remains were not found and, therefore, may be mixed with the debris brought to Fresh Kills. The WTC Families claims that these 1,100 families signed a petition in support of WTC Families, as did 62,500 others. The President of WTC Families, Diane Horning, lost her son, Matthew D. Horning, in the 9/11 attacks. Matthew's wallet and a piece of his occipital bone were recovered from the debris at Fresh Kills and returned to Ms. Horning by the City.
In March 2004, plaintiffs attended a meeting of the City Planning Commission. At this meeting, a proposal to turn Fresh Kills into a public park was discussed. The plaintiffs asserted at that meeting that they would not accept any decision to leave the fines at the Fresh Kills site. In July 2004, plaintiffs received a letter from the Office of the Mayor informing them that the City had decided that the fines would not be removed from the Fresh Kills site. The letter invited plaintiffs to become involved in the design of a monument in honor of the World Trade Center victims to be displayed in the park. The plaintiffs wrote to request a meeting to discuss the issue, but the letter was not acknowledged.
In August 2004, plaintiffs visited the Fresh Kills site, and observed that Sections 1 and 9, the areas where the fines were located, were littered with other debris. On August 10, 2004, the plaintiffs appeared before the Commission arguing that the City was required to move the remains before the development of a park began. They allege that the Commission told them that Sections 1 and 9 would not be disturbed. However, in September 2004, plaintiffs learned that Sections 1 and 9 were being covered with dirt, and would no longer be kept separate from other materials. In October 2004, the plaintiffs again attended a Commission meeting, where they complained that Sections 1 and 9 were not being maintained properly. Plaintiffs allege also that they have been denied meaningful access to the site, because visits are...
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