Election of Remedies Under the 9/11 VCF Bars State-Law Medical Malpractice Suits: Brennan v. MacDonald Establishes Broad Waiver Triggered by Claim Submission

Introduction

In Brennan v. MacDonald (2025 NY Slip Op 03994), the Appellate Division, Second Department, affirmed a trial court order that permitted a defendant physician to amend his answer on the eve of trial to add a statutory waiver defense, and then dismissed the plaintiff’s medical malpractice complaint pursuant to CPLR 3211(a). The case presents a consequential holding: once a claimant submits a claim to the September 11th Victim Compensation Fund (VCF) created under the Air Transportation Safety and System Stabilization Act of 2001 (the “Air Stabilization Act”), the claimant waives the right to pursue civil litigation for “damages sustained as a result of” the 9/11 terrorist attacks or “arising from or related to debris removal.”

The plaintiff, a law enforcement officer who worked at the World Trade Center site after September 11, 2001, later developed prostate cancer. He sued his former primary care physician for delayed diagnosis and treatment, while also filing a VCF claim for the same condition, which had been certified as a World Trade Center condition. The court held that the statutory waiver—triggered by the mere submission of a VCF claim—barred the malpractice action outright. The decision clarifies that the waiver encompasses malpractice claims against health care providers where the underlying injury is a 9/11-related condition.

Summary of the Judgment

The Second Department affirmed the Supreme Court’s order granting the defendant’s motion to:
- Amend his answer to assert affirmative defenses based on the plaintiff’s submission of a VCF claim; and
- Dismiss the complaint under CPLR 3211(a) pursuant to the waiver contained in the Air Stabilization Act § 405(c)(3)(C)(I).
The court rejected the plaintiff’s argument that the malpractice claim was independent of the 9/11 attacks and, at most, should be subject to a CPLR 4545 collateral source offset rather than dismissal.
The court emphasized that the waiver attaches upon submission of the VCF claim—not upon receipt of any award—and that permitting the lawsuit would undermine the statutory scheme by allowing double recovery.
Although the defendant sought leave to amend close to trial, the court found no prejudice warranting denial because the defense is purely legal and does not require further discovery.

Background and Procedural Posture

The plaintiff worked around Ground Zero for two weeks immediately following 9/11, providing security and transportation. Years later, he developed prostate cancer, which he testified was certified as a World Trade Center condition. In 2021, he sued his former primary care physician for medical malpractice based on delay in diagnosis and treatment; that same year, he filed a VCF claim seeking compensation for his cancer.

Shortly before jury selection, the defendant moved to amend to assert the VCF waiver and to dismiss the complaint. The plaintiff argued that the motion was tardy and prejudicial, especially because he could have withdrawn his VCF claim had the defense been raised earlier. The trial court granted leave to amend and dismissed the complaint; the Second Department affirmed.

Detailed Analysis

Precedents and Authorities Cited

Virgilio v. City of New York, 407 F.3d 105 (2d Cir. 2005): The centerpiece federal appellate authority interpreting the VCF waiver. Virgilio held that the Air Stabilization Act’s waiver is unambiguous and bars civil actions for “damages sustained as a result of” the 9/11 attacks—including claims against non-airline defendants—once a claimant files a VCF claim. Importantly, Virgilio rejected attempts to isolate later negligent or wrongful acts (e.g., radio equipment failures) as independent causes unconnected to the attacks, reasoning that the injuries resulted from a chain of interrelated events beginning with the terrorist attacks.
28 C.F.R. § 104.61(a): The VCF’s implementing regulation echoes the statute: submission of a VCF claim waives the right to bring civil actions for 9/11-related damages, with limited exceptions (collateral source obligations; actions against knowing participants in the conspiracy/terrorist acts).
Southern District of New York decisions post-Virgilio:
- Gullas v. September 11th Victim Compensation Fund (2025): Waiver applies even if the VCF denies the claim.
- Watson v. Sharpton (2024): Waiver applies where claimant demonstrates filing/exhaustion with the VCF.
- Ewers v. Empire State Recovery Fund (2019): Filing an administrative claim triggers the waiver even if relief is denied.
Branca v. Brezel, 81 Misc. 3d 853 (Sup Ct, Queens Cty): A trial-level New York decision applying the VCF waiver to dismiss a medical malpractice case where the plaintiff’s condition (malignant melanoma) was asserted as 9/11-related. While Branca addressed the issue as a subject-matter-jurisdiction bar, the Second Department in Brennan endorsed Branca’s logic while proceeding under a CPLR 3211(a) dismissal framework after allowing amendment to assert the waiver as an affirmative defense.
Standards for Leave to Amend: Edenwald Contracting Co. v. City of New York, 60 N.Y.2d 957; Dimoulas v. Roca, 120 A.D.3d 1293; Lennon v. 56th & Park (NY) Owner, LLC, 199 A.D.3d 64; Greater Bright Light Home Care Servs., Inc. v. Jeffries-El, 199 A.D.3d 777; American Bldrs. & Contrs. Supply Co., Inc. v. US Allegro, Inc., 177 A.D.3d 836; Morris v. Queens Long Is. Med. Group, P.C., 49 A.D.3d 827; Haller v. Lopane, 305 A.D.2d 370. These cases collectively support a liberal standard for amendment absent prejudice or surprise, while recognizing that courts exercise heightened scrutiny on the eve of trial.
CPLR 3211(a)(7) framework: Langley v. Melville Fire Dist., 213 A.D.3d 748; Leon v. Martinez, 84 N.Y.2d 83; May Dock Lane, LLC v. Harras Bloom & Archer, LLP, 222 A.D.3d 635. The court recited the familiar standard for testing the legal sufficiency of a complaint and, where evidentiary materials are considered, whether the plaintiff “has a cause of action.”

Legal Reasoning

The Second Department applied the plain text of the Air Stabilization Act’s waiver, which provides that “upon the submission of a claim” to the VCF, the claimant waives the right to file or be a party to a civil action “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.” Two core interpretive moves are central to the ruling:

Triggering Event: Submission, Not Recovery. The waiver attaches at the moment of claim submission, not upon any award of compensation. This disposes of the plaintiff’s prejudice argument premised on the notion that he could have withdrawn the VCF claim if the defense had been raised earlier. The court emphasizes that allowing the civil suit to proceed would facilitate double recovery, contrary to the statute’s architecture of an election of remedies.
Scope: Causation Chain and Injury-Based Framing. Adopting Virgilio’s chain-of-causation approach, the court held that medical malpractice claims predicated on delayed diagnosis/treatment of a condition that is itself 9/11-related are within the waiver’s scope. The plaintiff’s filing of the VCF claim for prostate cancer—certified as a WTC condition—“evidences” that the cancer resulted from his 9/11-related work. Consequently, any damages for delayed diagnosis of that condition are “damages sustained as a result of” the 9/11 attacks (or “arising from or related to debris removal”).

The court reinforced this conclusion by noting:

VCF program materials require that related lawsuits be withdrawn, settled, or dismissed, and;
VCF’s official FAQ expressly answers “no” to whether a claimant can sue a product manufacturer or doctor for causing or exacerbating a 9/11-related condition and still participate in the VCF—identifying such suits as within the statutory waiver.

Finally, the court rejected the plaintiff’s request to treat any VCF payment as a collateral source subject to a CPLR 4545 offset. The waiver is not merely a set-off provision; it is a threshold, claim-preclusive election of remedies barring the civil action entirely, subject only to narrow statutory exceptions (collateral source obligations; suits against knowing terrorist conspirators).

Procedural Rulings on Amendment and Dismissal

Leave to Amend (CPLR 3025(b)): Although sought on the cusp of trial, leave was properly granted:
- The proposed defense was neither palpably insufficient nor patently devoid of merit.
- The plaintiff failed to show actual prejudice or surprise. The waiver defense is a pure issue of law that does not call for further discovery.
- Even if the defendant could have raised the defense earlier (plaintiff testified in 2021 to filing a VCF claim), the timing does not justify allowing a suit barred by statute to proceed.
Dismissal (CPLR 3211(a)): Considering the statutory text, federal precedent, VCF regulations, and program materials, the complaint “fails as a matter of law.” The court aligned with Virgilio and Branca to conclude that claims for injuries traceable to the 9/11 attacks (here, a WTC-certified cancer) are barred once the VCF claim is filed.

Impact and Practical Implications

Brennan has immediate and substantial consequences for 9/11-related litigation in New York, especially medical malpractice and product liability suits tethered to certified 9/11 conditions:

Broadening the Waiver’s Application: The Second Department expressly applies the VCF waiver to malpractice claims against medical providers. The decision validates federal and administrative interpretations that any lawsuit alleging that a provider or product caused, contributed to, or exacerbated a 9/11-related condition falls within the waiver.
Irrevocability at Submission: The ruling underscores that the waiver is triggered by submission of a VCF claim. Withdrawing a VCF claim after submission does not restore the right to sue. Claimants and counsel must evaluate the election of remedies before filing with the VCF.
No Offset Workaround: Plaintiffs cannot convert the waiver into an offset under CPLR 4545; where the waiver applies, the civil action is dismissed, not reduced.
Defense Strategy: Defendants should promptly inquire into any VCF filings and assert the waiver early. Brennan shows courts will still allow late amendment where no prejudice is shown, but earlier invocation minimizes risk and litigation cost.
Plaintiff Strategy and Counseling: Attorneys representing 9/11 responders and survivors must counsel clients at intake about the election-of-remedies consequence. Simultaneous pursuit of a VCF claim and malpractice suit is incompatible unless a statutory exception applies.
Mixed or Successive Causes: Even if a plaintiff frames the malpractice as an independent, later-occurring negligence (e.g., delayed diagnosis), Brennan—following Virgilio—treats the injury as stemming “at least in part” from the attacks, keeping the case within the waiver’s ambit.
Denied VCF Claims Still Waive: Citing federal authority, the court recognizes that the waiver applies even if the VCF later denies the claim—eliminating any perceived “safe harbor” in filing first and litigating later.

Complex Concepts Simplified

Air Stabilization Act/VCF: A federal statute enacted after 9/11 creating a no-fault compensation fund (VCF) for victims and responders. By design, it limits civil litigation exposure and substitutes a quicker compensation mechanism.
Election of Remedies: A legal principle requiring claimants to choose between two inconsistent avenues of recovery. Here, submitting a VCF claim means choosing the administrative remedy and relinquishing traditional tort suits for related damages.
Waiver Trigger: The waiver arises upon submitting the VCF claim, not upon receiving money. It is a preclusive bar to suit, not just a reduction in damages.
Scope of “Damages Sustained as a Result of”: Broadly interpreted to cover injuries in the chain of causation from the 9/11 attacks, including conditions certified as 9/11-related and further harm allegedly caused by later negligence (e.g., malpractice).
Collateral Source Exception: The statute allows civil actions to recover collateral source obligations (e.g., certain reimbursement rights), and suits against knowing terrorist conspirators; it does not create a general offset mechanism for otherwise barred claims.
CPLR 3025(b) Leave to Amend: Courts freely allow amendment unless the change is legally insufficient or causes prejudice/surprise; even late amendments may be allowed if the defense is purely legal.
CPLR 3211(a) Dismissal: A mechanism to dismiss legally insufficient complaints at the pleading stage. When evidentiary materials are considered, the question becomes whether the plaintiff “has a cause of action” at all.

Why This Case Matters

Brennan provides authoritative state appellate confirmation of a principle long recognized in federal courts: the VCF’s waiver is broad, early-triggered, and comprehensive. New York litigators can no longer assume a malpractice suit involving a WTC-certified condition can coexist with a VCF claim, nor can they rely on post-hoc offsets to reconcile both tracks. The decision harmonizes New York state practice with federal doctrine, curtails duplicative recoveries, and channels 9/11-related injuries into the statutory compensation scheme unless a narrow exception applies.

Practice Pointers

For Plaintiffs’ Counsel:
- Screen every potential malpractice/product case for VCF filing history at intake.
- Advise clients that filing a VCF claim for a condition likely bars related civil suits, including malpractice claims alleging delayed diagnosis/treatment of the same condition.
- Carefully time any election; once the VCF claim is submitted, the waiver is in place, even if no award is received or the claim is later denied.
For Defendants’ Counsel:
- Serve targeted discovery asking about VCF filings, certifications, and claim numbers early.
- Plead the waiver as an affirmative defense; if omitted, move promptly to amend—Brennan shows courts will allow amendment if no real prejudice exists.
- Support dismissal with VCF documents, program FAQs, and, where helpful, federal decisions applying the waiver even to denied claims.

Conclusion

Brennan v. MacDonald cements a pivotal rule in New York: a plaintiff who submits a VCF claim for a 9/11-related condition waives the right to maintain a civil action arising from that condition—including medical malpractice suits alleging delayed diagnosis—because such damages are “sustained as a result of” the September 11, 2001 attacks or “arising from or related to debris removal.” The waiver is triggered by submission, not recovery, foreclosing attempts to proceed in civil court or to rely on collateral source offsets. The decision aligns state practice with federal precedent (Virgilio) and VCF regulations (28 C.F.R. § 104.61), reinforces the statute’s election-of-remedies structure, and provides clear guidance to litigants: choose the VCF or civil litigation, but not both.

Appendix: Statutory and Program Context

Air Transportation Safety and System Stabilization Act (Title IV): Establishes the VCF; includes § 405(c)(3)(C)(I) waiver provision.
VCF Reauthorization: The original VCF sunset but was reopened by the James Zadroga 9/11 Health and Compensation Act and made permanent by the “Never Forget the Heroes” Act (as noted in the decision’s footnote).
VCF Policy Materials: The program’s documentation and FAQs reiterate that lawsuits against doctors/products for causing or exacerbating 9/11-related conditions fall within the statutory waiver and must be withdrawn to participate in the VCF.