# Wewe v. Mt. Sinai Hospital

> District Court, E.D. New York · February 11, 2021

URL: https://www.frixlaw.com/law-library/cases/10305629

## Case

- **Court:** District Court, E.D. New York
- **Decided:** February 11, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------X
PAUL T. WEWE,
Plaintiff,
MEMORANDUM AND ORDER
-against- 19-CV-5000 (KAM)

MT. SINAI HOSPITAL, WORLD TRADE CENTER
HEALTH AND MONITOR PROGRAM (WTC HP), and
SEPTEMBER 11TH VICTIM COMPENSATION FUND,

Defendants.
------------------------------------X
KIYO A. MATSUMOTO, United States District Judge:
On September 3, 2019, Plaintiff Paul T. Wewe
(“Plaintiff”), proceeding pro se, commenced this action against
Mt. Sinai Hospital1, the World Trade Center Health and Monitor
Program (“WTC HP”), and the September 11th Victim Compensation
Fund (“VCF”) (collectively “defendants”), requesting an order
that VCF change the onset date of plaintiff’s economic loss due
to his disability, and compensate him accordingly. Plaintiff
further requests an order that the WTF HP and MSM provide the
VCF with plaintiff’s correct surgery date and that the onset

1 Plaintiff has incorrectly sued Mt. Sinai Hospital and defendant’s counsel
has clarified that plaintiff should have sued Mount Sinai Medical Center,
Inc. (“MSM”). (ECF No. 28, First Motion to Dismiss for Failure to State a
Claim by Mt. Sinai Hospital.) This Memorandum and Order will thus refer to
this defendant as MSM.
date of economic loss be adjusted accordingly. (See generally
ECF No. 1, Complaint dated 9/3/2019 (Compl.).)
Presently before the court are the VCF’s motion to

dismiss plaintiff’s complaint for lack of subject matter
jurisdiction pursuant to Federal Rule of Civil Procedure
12(b)(1) (“Rule 12(b)(1)”), and MSM’s motion to dismiss pursuant
to Federal Rule of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”)
for failure to state a claim. (ECF No. 34, Motion to Dismiss for
Lack of Jurisdiction by September 11th Victim Compensation Fund;
ECF No. 37, Motion to Dismiss for Failure to State a Claim by
Mt. Sinai Hospital.) Plaintiff has also filed additional
unauthorized submissions which the court considered. (ECF Nos.
41-48.) The VCF and MSM’s motions to dismiss are granted as set
forth below, and Plaintiff’s claims against the VCF and Mt.
Sinai are dismissed.

BACKGROUND
I. The September 11th Victim’s Compensation Fund
In response to the September 11, 2001 terrorist
attacks, Congress enacted the Air Transportation Safety and
System Stabilization Act of 2001 (the “Air Stabilization Act”),
in order to “provide compensation to any individual (or
relatives of a deceased individual) who was physically injured
or killed as a result of the terrorist-related aircraft crashes
of September 11, 2001.” Air Stabilization Act, Pub.L. 107–42,
115 Stat. 230, § 403 (September 22, 2001). The Air
Stabilization Act “established a Victim Compensation Fund with
an expeditious, non-judicial proceeding to enable claimants to

liquidate their claims promptly, and without assuming the risks
and delays inherent in court proceedings.” In re Sept. 11th
Litig., No. 21 MC 97 (AKH), 2007 WL 1965559, at *1 (S.D.N.Y.
July 5, 2007). An individual who chooses to pursue this non-
judicial route, “waives the right to file a civil action (or to
be a party to an action) in any Federal or State court for
damages sustained as a result of the terrorist-related aircraft
crashes of September 11, 2001.” Air Stabilization Act, §
405(c)(3)(B)(i).
The Air Stabilization Act also provides that “the
Attorney General, acting through a Special Master . . . shall
administer the compensation program established . . ..” Id. at

§ 404 (a)(1). The compensation determined by the Special Master
is “final and not subject to judicial review.” Id. at § 405
(b)(3). The Air Stabilization Act was originally only opened to
claims from December 21, 2001 through December 22, 2003. Id. at
§ 405 (b)(3). As a result, in January 2011, Congress passed the
James Zadroga 9/11 Health & Compensation Act of 2010 (the
“Zadroga Act”), which was intended to, and did, reopen the VCF
and expand upon the Air Stabilization Act. See generally the
Zadroga Act, 76 Fed. Reg. 54112, 54112 (Aug. 31, 2011) (codified
at 28 C.F.R. § 104). The Zadroga Act clarifies that the amount
of compensation received by the claimant “shall be reduced by
all collateral source compensation the claimant has received or

is entitled to receive as a result of the terrorist-related
aircraft crashes of September 11, 2001, or debris removal in the
immediate aftermath . . ..” Id. at § 104.47. On July 29, 2019,
the Zadroga Act was reauthorized. Pub. L. No. 116-34.
II. Procedural History
On February 27, 2019, plaintiff filed a complaint
against the VCF in this court alleging that his “claim was not
properly re-evaluated by the VCF Claim Examiner” and asked that
the VCF determination “reflect a full re-evaluation with [a
disability] onset time [starting on] 07/23/2009 not 05/13/2013.”
See generally Wewe v. September 11th Victim Compensation Fund,
No. 19-cv-1152, Complaint. On September 19, 2012, Mr. Wewe

filed VCF Claim No. 0007221 and was awarded compensation by the
VCF’s Special Master. Wewe v. September 11th Victim
Compensation Fund, No. 19-cv-1152, Letter Pursuant to November
15, 2019 Order, Dkt. No. 27. Plaintiff filed several amendments
to his claim in which he alleged that his disability onset date
was July 23, 2009, but the VCF had determined that Plaintiff
became disabled on May 16, 2013 and calculated his compensation
based on said date. Id. As of July 1, 2019, the Special Master
had awarded Mr. Wewe a total of $751,728.91. Wewe v. September
11th Victim Compensation Fund, No. 19-cv-1152, July 1, 2019
Letter from VCF to Plaintiff, Dkt. No. 21-1.
Though the VCF intended to file a motion to dismiss,

Mr. Wewe wrote to this court prior to such a motion being filed
on September 3, 2019, requesting to dismiss the action. Wewe v.
September 11th Victim Compensation Fund, No. 19-cv-1152, Letter
dated 9/3/2019 from Paul Wewe to Judge Matsumoto. Accordingly,
without objection, this court dismissed the action on September
6, 2019. Wewe v. September 11th Victim Compensation Fund, No.
19-cv-1152, Dkt. Order Dismissing Case 9/6/2019.
On the same day that plaintiff requested to dismiss
his original complaint, he filed a second complaint initiating
the instant action. (Compl.) Similar to Mr. Wewe’s complaint
in Wewe v. September 11th Victim Compensation Fund, plaintiff
alleges that the VCF calculated his compensation based on an

incorrect disability onset date and that MSM “should provide to
the VCF . . . the correct date.” (Compl. at 3.) Plaintiff also
demands that the “VCF compensate for past, present, and future
economic loss of earning[s].” Id. On January 9, 2020, this
court issued a scheduling order for VCF’s proposed motion to
dismiss for lack of subject matter jurisdiction. (Dkt. Order,
1/9/2020.) On January 16, 2020, MSM asked to join the motion to
dismiss briefing schedule and on January 21, 2020, the court
granted the motion. (ECF No. 28, First Motion to Dismiss for
Failure to State a Claim by Mt. Sinai Hospital; Dkt. Order,
1/21/2020.) On February 7, 2020, the defendants served their
motions to dismiss and memoranda in support of their motions to

dismiss. (ECF No. 34, Motion to Dismiss for Lack of
Jurisdiction by VCF; ECF No. 35, Memorandum in Support of VCF’s
Motion to Dismiss for Lack of Jurisdiction; ECF No. 37, First
Motion to Dismiss for Failure to State a Claim by MSM; ECF No.
38, Memorandum in Support of MSM’s Motion to Dismiss for Failure
to State a Claim.) On March 23, 2020, plaintiff served
defendants with his opposing memorandum of law. (ECF No. 32,
Memorandum of Law in Opposition to Defendant’s Motion to
Dismiss.) On April 6, 2020, the VCF and Mt. Sinai Hospital
filed their replies in support of their motions to dismiss.
(ECF No. 36, Reply in Support of Motion to Dismiss for Lack of
Jurisdiction filed by VCF; ECF No. 40, Reply in Support of

Motion to Dismiss for Failure to State a Claim filed by MSM.)
On April 10, 2020, plaintiff filed a response to defendants’
memoranda of law. (ECF No. 41, Response to Defendant's 2nd
Memorandum of Law.)
DISCUSSION
I. Standard of Review
A. Rule 12(b)(1)
“‘A case is properly dismissed for lack of subject
matter jurisdiction under Rule 12(b)(1) when the district court
lacks the statutory or constitutional power to adjudicate it.’”
Roman v. C.I.A., No. 11-CV-5944, 2013 WL 210224, at *4 (E.D.N.Y.
Jan. 18, 2013) (quoting Makarova v. United States, 201 F.3d 110,

113 (2d Cir. 2000)). It is well-settled that the “plaintiff
bears the burden of proving subject matter jurisdiction by a
preponderance of the evidence.” Aurecchione v. Schoolman Transp.
Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005) (citing Luckett v.
Bure, 290 F.3d 493, 497 (2d Cir. 2002)). In reviewing a Rule
12(b)(1) motion to dismiss, the court “must accept as true all
material factual allegations in the complaint, but [the court
is] not to draw inferences from the complaint favorable to
plaintiff[].” J.S. ex rel. N.S. v. Attica Cent. Sch., 386 F.3d
107, 110 (2d Cir. 2004). Moreover, the court “may consider
affidavits and other materials beyond the pleadings to resolve
the jurisdictional issue, but [it] may not rely on conclusory or
hearsay statements contained in the affidavits.” Id.

B. Rule 12(b)(6)
When considering a motion to dismiss under Rule
12(b)(6), a district court must “accept as true all factual
statements alleged in the complaint and draw all reasonable
inferences in favor of the non-moving party.” McCarthy v. Dun &
Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007) (citation
omitted). In considering a 12(b)(6) motion, the court may refer
to “documents attached to the complaint as an exhibit or
incorporated in it by reference, to matters of which judicial
notice may be taken, or to documents either in plaintiffs’
possession or of which plaintiffs had knowledge and relied on in
bringing suit.” Brass v. Am. Film Tech., Inc., 987 F.2d 142,
150 (2d Cir. 1993) (internal citations omitted); see also
Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 1993)

(clarifying that “reliance on the terms and effect of a document
in drafting the complaint is a necessary prerequisite to the
court’s consideration of a document on a dismissal motion; mere
notice of possession is not enough.”) (emphasis in original).
To survive a motion to dismiss pursuant to Rule
12(b)(6), a complaint must contain sufficient factual matter,
accepted as true, to “‘state a claim to relief that is plausible
on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570

(2007)). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
conduct alleged.” Id.
C. Sovereign Immunity
“[S]overeign immunity precludes suits against the
United States and its agencies unless Congress specifically
abrogates that immunity by statute.” Bloch v. United States Post
Office, No. 11-CV-659, 2011 U.S. Dist. LEXIS 15376, at *2
(E.D.N.Y. Feb. 16, 2011); see also Adeleke v. United States, 355
F.3d 144, 150 (2d Cir. 2004) (“It is, of course, ‘axiomatic’
under the principle of sovereign immunity ‘that the United

States may not be sued without its consent and that the
existence of consent is a prerequisite for jurisdiction.’”
(quoting United States v. Mitchell, 463 U.S. 206, 212 (1983))).
A waiver of sovereign immunity “must be unequivocally expressed
in the statutory text.” Cooke v. United States, 918 F.3d 77, 81
(2d Cir. 2019). “The Supreme Court frequently has held that
waivers of sovereign immunity are ‘to be strictly construed in
terms of [their] scope, in favor of the sovereign.’” Stein v.
United States Dep't of Educ., 450 F. Supp. 3d 273, 276 (E.D.N.Y.
2020) (citing Dep't of the Army v. Blue Fox, Inc., 525 U.S. 255,
261, 119 S.Ct. 687, 142 L.Ed.2d 718 (1999)). Any ambiguity
within a waiver must be construed in favor of immunity. FAA v.
Cooper, 566 U.S. 284, 290, 132 S.Ct. 1441, 182 L.Ed.2d 497

(2012).
II. Lack of Subject Matter Jurisdiction
Pursuant to Rule 12(b)(1), the VCF moves to dismiss
plaintiff’s complaint for lack of subject matter jurisdiction.
(ECF No. 35, Memorandum in Support of VCF’s Motion to Dismiss
for Lack of Jurisdiction.) The VCF contends that “the United
States has not waived its sovereign immunity for Plaintiff’s
claim challenging the VCF’s determination of his award.” (Id.
at 5.) More specifically, the VCF argues that plaintiff cannot
allege “any statutory waiver of VCF’s sovereign immunity to
bring his claims” in court and without any such waiver, “the

Court lacks jurisdiction to consider the claims that are the
subject of Plaintiff’s complaint.” Id.
Where, as here, the plaintiff is proceeding pro se,
courts must construe the plaintiff’s pleadings liberally. See,
e.g., Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191
(2d Cir. 2008); McEachin v. McGuinnis, 357 F. 3d 197, 200 (2d
Cir. 2004). Although liberally interpreted, a pro se complaint
must still state a claim to relief that is plausible on its
face. Mancuso v. Hynes, 379 F. App’x 60, 61 (2d Cir. 2010).
Applying the foregoing standards, this court has liberally
interpreted plaintiff’s complaint. Plaintiff’s memorandum of
law in opposition to VCF’s motion based on the lack of subject
matter jurisdiction cites to Watson v. United States, 133
F.Supp.3d 502 (E.D.N.Y. 2015), and Millbrook v. Unites States,

569 U.S. 50, 133 S.Ct. 1441, 185 L.Ed.2d 531 (2013). (ECF No.
32, Memorandum of Law in Opposition to Defendant’s Motion to
Dismiss.) The court assumes that plaintiff has cited to these
cases to support his complaint’s allegation that this court has
subject matter jurisdiction because sovereign immunity has been
waived in this action. However, these cases are distinguishable
from plaintiff’s case.
In both Watson and Millbrook, sovereign immunity was
waived because plaintiffs in both actions were suing under the
Federal Tort Claims Act (“FTCA”). Watson v. United States, 133
F.Supp.3d 502 (E.D.N.Y. 2015); Millbrook v. Unites States, 569
U.S. 50, 133 S.Ct. 1441, 185 L.Ed.2d 531 (2013). Unlike the FTCA

where sovereign immunity has been explicitly waived in the
statute, 28 U.S.C. § 2680(h), the Air Stabilization Act and
Zadroga Act do not waive sovereign immunity, but instead
explicitly preclude judicial review. The Air Stabilization Act
clearly provides that an individual who chooses to file a VCF
claim, “waives the right to file a civil action (or to be a
party to an action) in any Federal or State court for damages
sustained as a result of the terrorist-related aircraft crashes
of September 11, 2001.” § 405(c)(3)(B)(i). Similarly, the
Zadroga Act, which reopened the VCF and expanded the Air

Stabilization Act, provides that an individual who chooses to
file a claim with the VCF, “waives the right to file a civil
action (or be a party to an action) in any Federal or State
court for damages sustained as a result of the terrorist-related
aircraft crashes of September 11, 2001.” 28 C.F.R. § 104.61.
Both the VCF’s authorizing statute and the Zadroga Act
explicitly prelude judicial review by stating that
determinations by the VCF Special Master “shall be final and not
subject to judicial review.” Air Stabilization Act, § 405
(b)(3).
It is clear that Congress intended that VCF award

recipients be precluded from challenging their awards in state
or federal court. See Virgilio v. City of New York, 407 F.3d
105, 112–13 (2d Cir. 2005)(“In our view, the waiver provision is
unambiguous . . . Fund claimants waive their right to bring
civil actions resulting from any harm caused by the 9/11
attacks.”) VCF award determinations are not subject to review
by federal courts. See id.; Schneider v. Feinberg, 345 F.3d
135, 145 (2d Cir. 2003) (“Congress has confided each award to
the sealed box of a Special Master's mind, has refrained from
meaningful prescriptions, and has placed the result beyond the
reach of review.”); In re Sept. 11th Litig., No. 21 MC 97 (AKH),
2007 WL 1965559, at *1 (S.D.N.Y. July 5, 2007) (“those who

applied to the Victim Compensation Fund gave up their right to
bring claims in this Court.”)
This court agrees with the VCF in that “by filing his
claim with the VCF, Plaintiff made the choice to waive the right
to any judicial review of his damage award.” (ECF No. 35, Def.
Memo at 7.) The Air Stabilization Act and Zadroga Act make
clear that sovereign immunity has not been waived; thus, this
court lacks subject matter jurisdiction to review plaintiff’s
challenges to his VCF award.
III. Failure to State a Claim
Plaintiff separately alleges in his complaint that MSM
“should provide to the VCF the correct date of the surgery”,

which is also the “onset date of economic loss.” (Compl. at 3.)
MSM argues in its motion to dismiss that “plaintiff has not
stated a cause of action for which relief can be granted”
because “he does not request any monetary relief from MSM,” nor
does he plead “any allegations that MSM acted improperly in any
way.” (ECF No. 38, Memorandum in Support of MSM’s Motion to
Dismiss for Failure to State a Claim, at 6.) MSM also contends
that “the action is rendered moot should the claims against VCF
be dismissed” since “there is no ‘case or controversy’ for the
Court to decide with respect to MSM as plaintiff’s request that
MSM be compelled to provide the correct date of surgery to VCF
is moot if the claims against VCF are dismissed.” Id. See
Stewart v. NYNEX Corp., 78 F. Supp. 2d 172, 179 (S.D.N.Y. 1999);
see also International Organ of Master, Mates & Pilots v. Brown,

498 U.S. 466, 473 (1991) (“A case becomes moot when interim
relief or events have eradicated the effects of defendant’s act
. . . . A case may not be moot if the underlying dispute between
the two parties is capable of repetition, yet evading review.”)
The court agrees with defendant. The court has already
determined that it does not have subject matter jurisdiction to
review plaintiff’s claims challenging VCF’s award determination.
As such, plaintiff’s claim against MSM is moot as the claim is
intrinsically linked to the claim against VCF, which this court
does not have jurisdiction to entertain.

CONCLUSION
For the reasons set forth above, the VCF’s motion to
dismiss for lack of subject matter jurisdiction, and the MSM’s
motion to dismiss for failure to state a claim are granted, and
Plaintiff’s claims against VCF and MSM are dismissed. It is
“well established that leave to amend a complaint need not be
granted when amendment would be futile.” Ellis v. Chao, 336
F.3d 114, 127 (2d Cir. 2003) (citing Foman v. Davis, 371 U.S.
178, 182 (1962)); see also Burch v. Pioneer Credit Recovery,
Inc., 551 F.3d 122, 126 (2d Cir. 2008) (“[M]otions to amend
should generally be denied in instances of futility.”) Because
amendment would be futile because of this court’s lack of

subject matter jurisdiction, judgment will be ordered in favor
of defendants. The Clerk of Court is respectfully directed to
serve plaintiff with a copy of this Memorandum and Order. SO
ORDERED.
Dated: February 11, 2021
Brooklyn, New York

_________/s/_________________
KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10305629. Public record. Not legal advice.