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RODRIGUEZ DEL VALLE v. VA

July 12, 1983

VIRGINIA RODRIGUEZ DEL VALLE, ABRAHAM D. LEVY, Bronx Public Administrator as Administrator of the Estates of ELIZABETH NOEMI SANCHEZ and HAMILTON SANCHEZ PADILLO on behalf of ELIZABETH NOEMI SANCHEZ and HAMILTON SANCHEZ PADILLO, Plaintiffs,
v.
VETERANS ADMINISTRATION, KINGSBRIDGE, VETERANS ADMINISTRATION HOSPITAL, Agency of the United States Government, Defendant



The opinion of the court was delivered by: CARTER

CARTER, District Judge

 Jose Antonio Sanchez Rodriguez was a patient in the Kingsbridge Veterans Hospital in the Bronx on June 1, 1980, when he was wounded by a gunshot. He died as a result of the injury.

 On May 28, 1982, plaintiffs' attorney, Carlos Perez Olivo, filed an administrative "claim for damage [sic] injury, or death" with the Veterans Administration ("VA") on behalf of three of the decedent's alleged heirs. Defendant's Exh. A. The claimants, who were listed as Elizabeth Noemi Sanchez, Hamilton Sanchez Padillo, and Virginia Rodriguez, sought damages of one million dollars for personal injury and one million dollars for wrongful death. Neither in the claim form nor in the letter accompanying it was the relationship of the named claimants to the deceased described, nor was there any indication that Olivo was authorized to act as legal representative, executor, or administrator of decedent's estate.

 On June 10, 1982, Olivo submitted a second claim application, which was changed in only one way from the first -- on the line provided for listing witnesses, the words "unknown at this time" were typed. Defendant's Exh. B.

 On June 11, 1982, the VA sent Olivo a letter stating that the claim form had not been completed in compliance with applicable federal and state law. Defendant's Exh. C. In order to put plaintiffs' attorney on notice with regard to how the form was defective, the VA's letter explained the specific state and federal laws with which plaintiffs had to comply.

 On December 4, 1982, this action was brought against the United States, sued herein as the Veterans Administration, Kingsbridge and the Veterans Administration Hospital. It was brought not on behalf of the decedent's estate, but instead on behalf of the decedent's mother and the administrator of the estates of the decedent's two children. The action, which seeks two million dollars for loss of "services, comfort, support, society, love, affection and inheritance," Complaint paras. 8-9, is brought under the Federal Tort Claims Act (the "FTCA"), 28 U.S.C. §§ 1346(b), 2671-80. Asserting that plaintiffs never submitted a proper claim for administrative review and thus have not satisfied the FTCA's prerequisites, defendant now moves to dismiss or, alternatively, for summary judgment for lack of subject matter jurisdiction and failure to state a claim upon which relief may be granted. The government's motion will be treated as one for summary judgment because the record contains supplementary papers that go beyond the pleadings.

 DETERMINATION

 Under the doctrine of sovereign immunity, the United States may not be sued without its consent, United States v. Mitchell, 445 U.S. 535, 538, 63 L. Ed. 2d 607, 100 S. Ct. 1349 (1980); however, where the federal government consents to be sued, the statutes allowing such suits to be brought must be strictly followed. United States v. Kubrick, 444 U.S. 111, 117-18, 62 L. Ed. 2d 259, 100 S. Ct. 352 (1979); Brown v. General Services Administration, 507 F.2d 1300, 1307 (2d Cir. 1974), aff'd, 425 U.S. 820, 48 L. Ed. 2d 402, 96 S. Ct. 1961 (1976). Under the FTCA, a tort claim may not be brought against the United States "unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency . . . ." 28 U.S.C. § 2675(a).

 In its June 11, 1982 letter to plaintiffs' counsel, the VA explained who the proper parties are for filing an administrative claim for wrongful death under the FTCA. The federal regulations state:

 
A claim based on death may be presented by the executor or administrator of the decedent's estate, or by any other person legally entitled to assert such a claim in accordance with applicable State law.

 28 C.F.R. § 14.3(c) (1982); accord 38 C.F.R. § 14.603(a)(3) (1982). The regulations also state that an administrative claim must be:

 
presented in the name of the claimant, be signed by the agent or legal representative, show the title or legal capacity of the person signing and be accompanied by evidence of his authority to present a claim on behalf of the claimant as agent, executor, administrator, parent, guardian, or other representative.

 28 C.F.R. § 14.3(e).

 Under New York law, only a "personal representative" of the decedent may bring a wrongful death action, i.e., an action for damages sustained by persons who have suffered monetary loss as the result of someone's death, or a survival action, i.e., an action for personal injury suffered by the decedent before dying. N.Y. Est. Powers & Trusts §§ 5-4.1, 11-3.2(b) (McKinney 1981 & Supp. 1982-83). New York law defines a "personal representative" as "a person who has received letters to administer the estate of a decedent," N.Y. Est. Powers & Trusts § 1-2.13 (McKinney 1981), and under New York law neither a wrongful death nor a survival action accrues until a ...


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