Narrative:

With the first officer flying we departed jfk on the kennedy 4 IFR departure (breezy climb). The initial SID clearance was to 5000'. Upon crossing cri VOR we were cleared to 11000'. At approximately 5 mi DME from cri and tracking on the 223 degree right (2249 GMT) we were advised by departure control of VFR traffic '1 O'clock and 7500'.' I responded, 'we are looking.' as we passed through 6500' departure said, 'traffic 5 mi--do you want to level at 7000' or increase your rate?' by the time I responded we were very nearly at 7000' (1500 FPM climb), so I elected to increase the rate of climb. I advised departure of our intentions. We set mct (maximum continuous thrust--a higher climb power) and rotated to approximately 2500 FPM. Just at that point I observed the VFR traffic (commuter twin) as it passed from the 11 O'clock to the 9 O'clock position, disappearing below the nose of our aircraft. At the time we first observed the aircraft the first officer further increased the climb rate to 2800 FPM allowing the airspeed to 'bleed off' to clean minimum maneuver maneuver airspeed (242 KTS). The conflicting VFR traffic appeared to be in an evasive maneuver (right bank and descending attitude). The distance appeared to be approximately 400-500' total distance (300' vertical and 400' horizontal at the point of passing). I subsequently asked the controller his estimate of the passing distance and he said '300 to 400'.' the controller asked if I had seen the traffic. I responded 'yes,' however that was only at the point of passing. In my opinion, we should not have been cleared above our initial 5000' clearance-- even if we had seen and acknowledged the traffic--until we were well clear of the VFR traffic.

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Original NASA ASRS Text

Title: TRAFFIC ADVISORY GIVEN TO DEPARTING WDB ACFT. FLT CREW WAS LATE SIGHTING THE TRAFFIC BUT ELECTED TO INCREASE CLIMB AS AN OPTION OFFERED BY CTLR. CLIMB WAS ALSO LATE AND INSUFFICIENT TO AVOID AN NMAC BETWEEN THE CTLED WDB AND VFR COMMUTER IN THE TCA.

Narrative: WITH THE F/O FLYING WE DEPARTED JFK ON THE KENNEDY 4 IFR DEP (BREEZY CLB). THE INITIAL SID CLRNC WAS TO 5000'. UPON XING CRI VOR WE WERE CLRED TO 11000'. AT APPROX 5 MI DME FROM CRI AND TRACKING ON THE 223 DEG R (2249 GMT) WE WERE ADVISED BY DEP CTL OF VFR TFC '1 O'CLOCK AND 7500'.' I RESPONDED, 'WE ARE LOOKING.' AS WE PASSED THROUGH 6500' DEP SAID, 'TFC 5 MI--DO YOU WANT TO LEVEL AT 7000' OR INCREASE YOUR RATE?' BY THE TIME I RESPONDED WE WERE VERY NEARLY AT 7000' (1500 FPM CLB), SO I ELECTED TO INCREASE THE RATE OF CLB. I ADVISED DEP OF OUR INTENTIONS. WE SET MCT (MAX CONTINUOUS THRUST--A HIGHER CLB PWR) AND ROTATED TO APPROX 2500 FPM. JUST AT THAT POINT I OBSERVED THE VFR TFC (COMMUTER TWIN) AS IT PASSED FROM THE 11 O'CLOCK TO THE 9 O'CLOCK POS, DISAPPEARING BELOW THE NOSE OF OUR ACFT. AT THE TIME WE FIRST OBSERVED THE ACFT THE F/O FURTHER INCREASED THE CLB RATE TO 2800 FPM ALLOWING THE AIRSPD TO 'BLEED OFF' TO CLEAN MINIMUM MANEUVER MANEUVER AIRSPD (242 KTS). THE CONFLICTING VFR TFC APPEARED TO BE IN AN EVASIVE MANEUVER (RIGHT BANK AND DSNDING ATTITUDE). THE DISTANCE APPEARED TO BE APPROX 400-500' TOTAL DISTANCE (300' VERT AND 400' HORIZ AT THE POINT OF PASSING). I SUBSEQUENTLY ASKED THE CTLR HIS ESTIMATE OF THE PASSING DISTANCE AND HE SAID '300 TO 400'.' THE CTLR ASKED IF I HAD SEEN THE TFC. I RESPONDED 'YES,' HOWEVER THAT WAS ONLY AT THE POINT OF PASSING. IN MY OPINION, WE SHOULD NOT HAVE BEEN CLRED ABOVE OUR INITIAL 5000' CLRNC-- EVEN IF WE HAD SEEN AND ACKNOWLEDGED THE TFC--UNTIL WE WERE WELL CLR OF THE VFR TFC.

Data retrieved from NASA's ASRS site as of July 2007 and automatically converted to unabbreviated mixed upper/lowercase text. This report is for informational purposes with no guarantee of accuracy. See NASA's ASRS site for official report.