Narrative:

Initial takeoff clearance from jfk was depart runway 13R, right turn to 185 degrees, climb to 5000'. On a heading of 185 degrees, departure controller (we think on 120.85) gave us a right turn to 270 degrees, 'radar vector for your climb,' vector to rbv and on course. Shortly after we were on the 270 degree heading, the controller said we had, 'traffic at 12-1 O'clock...transponder indicates maintaining 5500'.' it took us a short while to see the other aircraft--we were looking into the sun. When the first officer did see and call out the traffic, it was at 12:30, passing from right to left, less than 1 mi away. We had leveled at 5000', indicating about 240 KTS. It appeared to me that the other aircraft was only slightly above our own altitude, approximately 100-200'. I made a descent at moderate rate to 4600' MSL, and at the same time the first officer told the departure controller west were descending a short distance to increase the vertical sep. At this, another controller's voice came on the frequency to complain that we had unnecessarily deviated from our altitude clearance to increase the vertical sep between the 2 aircraft to nearly 1000'. We did not enter into a discussion with the controller or make any comment; however: 1) the controller told us only that the altitude readout on the other aircraft was 5500'. 2) the other aircraft (single engine type) was in the ny TCA, apparently with a clearance, but not talking to our controller. 3) there was no question in our minds that the aircraft appeared to be below 5500' (was he on an incorrect altimeter setting?). In the interest of safety, we increased the vertical sep between the 2 aircraft. If the same incident were to occur again tomorrow, I would have to do the same thing. Evasive action avoided a near miss incident.

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Original NASA ASRS Text

Title: ACR LGT CAPT DECIDES HE IS TOO CLOSE TO VFR TRAFFIC AND INITIATES EVASIVE ACTION.

Narrative: INITIAL TKOF CLRNC FROM JFK WAS DEPART RWY 13R, RIGHT TURN TO 185 DEGS, CLB TO 5000'. ON A HDG OF 185 DEGS, DEP CTLR (WE THINK ON 120.85) GAVE US A RIGHT TURN TO 270 DEGS, 'RADAR VECTOR FOR YOUR CLB,' VECTOR TO RBV AND ON COURSE. SHORTLY AFTER WE WERE ON THE 270 DEG HDG, THE CTLR SAID WE HAD, 'TFC AT 12-1 O'CLOCK...XPONDER INDICATES MAINTAINING 5500'.' IT TOOK US A SHORT WHILE TO SEE THE OTHER ACFT--WE WERE LOOKING INTO THE SUN. WHEN THE F/O DID SEE AND CALL OUT THE TFC, IT WAS AT 12:30, PASSING FROM RIGHT TO LEFT, LESS THAN 1 MI AWAY. WE HAD LEVELED AT 5000', INDICATING ABOUT 240 KTS. IT APPEARED TO ME THAT THE OTHER ACFT WAS ONLY SLIGHTLY ABOVE OUR OWN ALT, APPROX 100-200'. I MADE A DSNT AT MODERATE RATE TO 4600' MSL, AND AT THE SAME TIME THE F/O TOLD THE DEP CTLR W WERE DSNDING A SHORT DISTANCE TO INCREASE THE VERT SEP. AT THIS, ANOTHER CTLR'S VOICE CAME ON THE FREQ TO COMPLAIN THAT WE HAD UNNECESSARILY DEVIATED FROM OUR ALT CLRNC TO INCREASE THE VERT SEP BTWN THE 2 ACFT TO NEARLY 1000'. WE DID NOT ENTER INTO A DISCUSSION WITH THE CTLR OR MAKE ANY COMMENT; HOWEVER: 1) THE CTLR TOLD US ONLY THAT THE ALT READOUT ON THE OTHER ACFT WAS 5500'. 2) THE OTHER ACFT (SINGLE ENG TYPE) WAS IN THE NY TCA, APPARENTLY WITH A CLRNC, BUT NOT TALKING TO OUR CTLR. 3) THERE WAS NO QUESTION IN OUR MINDS THAT THE ACFT APPEARED TO BE BELOW 5500' (WAS HE ON AN INCORRECT ALTIMETER SETTING?). IN THE INTEREST OF SAFETY, WE INCREASED THE VERT SEP BTWN THE 2 ACFT. IF THE SAME INCIDENT WERE TO OCCUR AGAIN TOMORROW, I WOULD HAVE TO DO THE SAME THING. EVASIVE ACTION AVOIDED A NEAR MISS INCIDENT.

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.