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Judge stands up for WTC heroes - mayor must, too

It is time for Mayor Bloomberg to end the war of attrition that city lawyers have been waging against the forgotten victims of 9/11. It is time for the mayor to focus instead on delivering compensation to the thousands of Ground Zero workers who were sickened because they served, as well as to the families of those who have died.

In a ruling that will stand as a milestone in the pursuit of fair treatment for World Trade Center responders, Manhattan Federal Judge Alvin Hellerstein on Tuesday brought Bloomberg to a crossroads. Will the mayor permit Corporation Counsel Michael Cardozo to battle damage claims ad infinitum? Or will the mayor direct his chief attorney to do the right thing and put down the cudgels?

Bloomberg has that choice because Hellerstein wisely - and humanely - rejected Cardozo's argument that the city and its contractors were immune by law from liability because rescue and recovery operations were conducted under emergency conditions. The judge gave 3,000 workers the go-ahead to proceed, if necessary, with individual cases. This should not, and must not, be necessary.

With 5,000 more claimants already waiting in the wings, those cases would be only the start of year upon year of court-clogging litigation that drains, by our estimate, at least $400 million in legal fees out of a $1 billion 9/11 insurance fund established by Congress to cover liability claims. Hellerstein neatly summed up the onus that now falls on Bloomberg and, not incidentally, on the lawyers representing the workers.

"If even a minority of the plaintiffs suffered serious injuries to their respiratory tracts arising from the acrid air of Sept. 11, their claims deserve to be heard when a recovery could make a difference to their lives," the judge wrote. "Conversely, if complaints lack merit, or if defenses prove to be valid, defendants are entitled to the earliest possible release. The availability of a $1 billion fund authorized by Congress should not serve as encouragement to lengthen and complicate these proceedings. The scar to the public interest needs to be cleansed, speedily, in good time."

But waging hand-to-hand legal combat would guarantee that nothing gets accomplished in good time or according to sound public policy. The far better course, as urged here Sept. 3, would be to remove the matter from the courts entirely by adopting no-fault compensation: Individuals who proved they were injured because they served at Ground Zero would be issued checks expeditiously, with the amounts set by specified guidelines.

Such a system was used to advantage by the 9/11 Victim Compensation Fund, which provided $7 billion to the survivors of those killed in the terror attack, as well as to people who were injured in the immediate aftermath. As the nation neared the five-year Sept. 11 anniversary, numerous members of New York's congressional delegation, including Sens. Hillary Clinton and Chuck Schumer and Reps. Carolyn Maloney and Vito Fossella, backed legislation by New Jersey Sen. Robert Menendez to reopen the fund. Bloomberg expressed his support.

Hellerstein's ruling makes it all the more imperative for Clinton, Schumer, Bloomberg and the others to start an aggressive, coordinated push for congressional action. The facts are powerfully on their side: Thousands of responders whose lungs were irrevocably scarred and seared at Ground Zero deserve just compensation without having to surrender almost a half-billion dollars to trial lawyers. And the major contracting companies that dismantled and carted away the toxic rubble of the twin towers must be protected from bankrupting liability.

Congress has to see that there is more at stake here than fair play: Who in their right mind will respond without hesitation to another terror attack, knowing that, well, you're on your own however tragically things work out? Should Washington be so feckless as to send that message across the nation, Bloomberg would be duty-bound to try to shift claims filed by the forgotten victims of 9/11 into a no-fault claim system drawing on the $1 billion insurance fund. While that amount could well fall short of what's needed, it would at least be a start.

Bloomberg's only alternative - the approach now contemplated by Cardozo - would be to fight every suit, right down to the question of whether the city should be immune from liability in each individual case. Even as he allowed the suits to proceed, Hellerstein left open that possibility because, in fact, the law does protect the city from liability when officials respond in good faith to an emergency.

Which means Cardozo may be able to successfully claim immunity for illnesses suffered by responders who worked at Ground Zero in the first couple of days after 9/11, when there clearly was an emergency. Those workers would get tossed out of court while colleagues who arrived at the scene after the emergency had abated would get to press their claims.

Follow the city's legal logic and the certain outcome is that the people who responded first and, according to medical studies, are afflicted with the worst illnesses would get nothing. Perverse.

In vigorously fighting the claims, Bloomberg has stood firm to protect the contractors in the city's employ from a crippling financial wallop. But as Hellerstein noted, government also "has to be sensitive to the individual workers who risk their lives." The mayor should take that to heart.

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