9/11 continues to cast a long shadow over the personal injury world, and will until 2090. That is the lesson of Mollahan v Worby Groner Edelman & Napoli Bern LLP 2025 NY Slip Op 30644(U) February 25, 2025 Supreme Court, New York County Docket Number: Index No. 195690/2022 Judge: David B. Cohen. As the law concerning injuries suffered during and after the WTC destruction continued to change, attorneys who worked in the area had to evolve client representation as well.

“In the complaint, plaintiffs allege that, beginning on September 12, 2001 and through March 15, 2002, Robert Mollahan (Robert), in the course of his employment as a disaster recovery engineer for Sprint Corporation, was exposed to toxins at or near the September 11, 2001 attack site at the World Trade Center (WTC). On May 19, 2006, Robert died from renal cell carcinoma, a form of cancer, allegedly caused by this exposure. Robert was survived by his parents and his brothers, plaintiffs Thomas and Edward Mollahan, and on April 5, 2007, plaintiffs were issued Letters Testamentary and appointed coexecutors of decedent’s estate. On September 11, 2006, WGEN1 entered into a retainer agreement with Edward, as an intended executor of Robert’s estate, to represent him in connection with claims to recover damages for Robert’s conscious pain and suffering and wrongful death caused by Robert’s exposure to toxins at the WTC. As of May 2007, WGEN also represented Thomas related to Robert’s claims.

The retainer agreement, bearing the header of WGEN, states that Edward is hiring WGEN to “prosecute a claim for personal injuries for damages suffered by [Robert] arising out of [Robert’s] exposure to toxic substances relating to 9/11 rescue or recovery operations.” (NYSCEF 39). In 2007 and/or 2008, WGEN commenced one or more civil actions in the Federal District Court of the Southern District of New York, seeking damages on behalf of plaintiffs. It is alleged that WGEN, NB, and WGE represented plaintiffs, and that LoPalo was an attorney associated with these firms. On January 2, 2011, the Zadroga Act was passed, thereby reactivating the September 11, 2001 Victim Compensation Fund of 2001 (VCF) to provide compensation to those who suffered a physical injury or condition caused by the terrorist attack on 9/11 or incurred during the rescue, recovery, and debris removal efforts that took place during any period beginning on September 11, 2001, and ending on May 30, 2022. The Zadroga Act originally authorized the VCF to accept claims for a period of five years, ending in October 2016. On or about October 12, 2012, the VCF added kidney cancer, including but not limited to renal cell carcinoma, to the list of 9/11-Related Physical Health Conditions for which compensation could be received from the VCF. On December 18, 2015, the “Reauthorized Zadroga Act” was signed into law, which, among other things, extended the VCF for an additional five years, allowing individuals to submit claims until December 18, 2020. On July 29, 2019, the “VCF Permanent Authorization Act” was signed into law, extending the deadline to file a claim with the VCF to October 1, 2090. According to the VCF statute and applicable rules and regulations, in order to qualify for VCF compensation, all releases regarding settlement of actions must have been tendered prior to October 13, 2012, and all claims that were not settled with the tendering of releases prior to October 13, 2012, must have been withdrawn or dismissed without settlement on or before the date the claim was filed with the VCF, in order to be eligible to receive compensation from the VCF. On September 18, 2015, WGEN, NB, and WGE referred plaintiffs to the Barasch Firm for the purpose of filing a claim with the VCF, and on October 7, 2015, Edward retained the Barasch Firm for this purpose. On or about December 28, 2016, WGEN and NB had plaintiffs, as co-executors of Robert’s estate, execute two settlement agreements and general releases (2016 Settlement), which settled and released all claims in the 9/11-Related Lawsuit(s) for the total sum of approximately $6,200.00. On or about January 18, 2017, WGEN counter-signed the settlements. Plaintiffs allege that as the signing and tendering of the 2016 Settlement occurred after October 13, 2012, they were thereby rendered ineligible to receive compensation from the VCF. Plaintiffs contend that WGE and NB did not advise plaintiffs of the consequences of signing these releases in 2016, and that had they known the consequences, they would not have signed them.”

“In his motion, LoPalo argues that plaintiffs had three years, or until December 28, 2019, to bring his claim, and since plaintiffs brought this action on November 21, 2022, it is timebarred and must be dismissed. In opposition, plaintiffs allege that the key dates for the statute of limitations are either May 29, 2020, when the VCF affirmed the denial of plaintiffs’ claim, or June 11, 2019, when LoPalo appeared at the VCF hearing on plaintiffs’ behalf, contending that they were continuously represented by LoPalo during the appeal. As New York State statutes of limitation were tolled during the COVID-19 pandemic, plaintiffs contend that this action would be timely from either date. If the accrual date of this malpractice lawsuit is the date when the alleged malpractice took place, then that date here would be December 28, 2016, when WGEN and/or NB had plaintiffs, as co-executors of decedent’s estate, execute the settlement agreements and releases. It is the signing of these agreements that precluded plaintiffs from obtaining compensation from the VCF, and plaintiffs contend that it was LoPalo’s failure to inform and advise them of this prior to the signing of these releases that constituted malpractice. Even assuming that the accrual date was December 28, 2016, plaintiffs argue that the application of the continuous representation doctrine tolled the running of the three-year statute of limitations until June 18, 2019, when LoPalo represented plaintiffs at the VCF hearing. LoPalo states that he was retained in the 9/11-related lawsuits and was not counsel on the VCF claims. He maintains that plaintiffs concede as much in their complaint, which makes clear that the Barasch Firm handled the VCF claim. LoPalo argues that his appearance at the VCF appeals hearing does not constitute representation, nor does it qualify for continuing representation as the VCF claim was handled by the Barasch Firm and was a distinct and separate action from that commenced by LoPalo, and the subsequent VCF hearing is separate and distinct from the original representation for which LoPalo and his firm were retained.”

“Therefore, plaintiffs’ complaint sufficiently alleges that the broad language of the retainer agreement and LoPalo’s and WGE’s actions created in plaintiffs a reasonable impression that Lopalo and WGEN were actively addressing their legal needs. During this time, plaintiffs would not be expected to bring a lawsuit against LoPalo or WGEN and jeopardize their ongoing relationship of trust (see Greene, 56 NY2d at 94; Glamm 57 NY2d at 94; see also Sendar Dev. Co., LLC, 68 AD3d at 503 [the continuous representation doctrine applies when “a plaintiff shows that he or she relied upon an uninterrupted course of services related to a particular duty breached”]).”