Court of Appeals has held that CPLR § 205(a) is not available because the original action was never "commenced" for the purposes of section 205(a). Markoff v. South Nassau Community Hosp., 61 N.Y.2d 283, 473 N.Y.S.2d 766, 461 N.E.2d 1253 (1984); George v. Mt. Sinai Hosp., 47 N.Y.2d 170, 175, 417 N.Y.S.2d 231, 234, 390 N.E.2d 1156 (1979). While the Carrick court explicitly held that an action deficient due to lack of a personal representative was not a jurisdictional defect that would render CPLR § 205(a) unavailable to the plaintiff, this Court finds that a different rule must obtain in actions arising under the FTCA due to the waiver of sovereign immunity effected therein and the regulations issued by the Attorney General. Thus, the reference to state law in the Code of Federal Regulations does not provide plaintiff in this action a vehicle for curing his deficient notice.
2. Due Notice Under 28 U.S.C. § 2675
As discussed above, plaintiff's claims fail if the regulations embodied in 28 C.F.R. § 14 apply to the notice provision of section 2675 and thus define the jurisdictional prerequisites to suit under the FTCA. The Second Circuit's ruling in Keene Corp. v. United States sets out the controlling law concerning the effect of a deficient notice of claim. A close reading of that case is necessary to determine the precise scope of the court's ruling. The panel clearly stated that the requirement that a notice of claim be filed under 28 U.S.C. § 2675 is jurisdictional and cannot be wavied. 700 F.2d at 841. In discussing whether the notice of claim in that case was valid, the Court noted considerable conflict among the circuits concerning whether the notice required by section 2675 must meet the specifications of 28 C.F.R. § 14. As discussed above, that section of the Code is issued under authority of 28 U.S.C. § 2672, which provides that the head of each federal agency shall adjust and settle claims in accordance with regulations promulgated by the Attorney General. The Keene Court ruled that a claimant who fails to state a sum certain in his statement of damages fails to satisfy the notice provision of section 2675; the district court is therefore deprived of jurisdiction to entertain the claim. 700 F.2d at 842. The Court, however, explicitly declined to rule on the issue presented to this Court in the present action: whether notice pursuant to 28 U.S.C. § 2675 must meet the requirements of 28 C.F.R. § 14. Noting the split of authority concerning whether all the regulations of 28 C.F.R. § 14 were jurisdictional prerequisites to a validly presented claim under 28 U.S.C. § 2675, the Court found general agreement that failure to state a sum certain in the claim for damages rendered the notice defective for all purposes. Thus, the Keene Court explicitly declined to rule on the issue presented in the case at bar.
Numerous Courts of Appeals that have decided the issue have determined that the regulations in 28 C.F.R. § 14 do not apply to the notice requirement. See, e.g., Knapp v. United States, 844 F.2d 376, 379 (6th Cir. 1988); GAF Corp. v. United States, 260 U.S. App. D.C. 252, 818 F.2d 901, (D.C. Cir. 1987); Charlton v. United States, 743 F.2d 557, 559-60 (7th Cir. 1984); Warren v. United States Dep't of Interior, 724 F.2d 776 (9th Cir. 1984); Tucker v. United States Postal Serv., 676 F.2d 954 (3d Cir. 1982); Adams v. United States, 615 F.2d 284, 290 (5th Cir. 1980). Because the regulations were not promulgated under the jurisdictional notice provision of the FTCA--indeed, section 2675 makes no provision for the promulgation of regulations under its authority--courts have declined to find that strict compliance with the regulations is a jurisdictional requirement. Knapp, 844 F.2d at 379. Rather, there is general agreement that section 2675 merely requires that the claimant provide minimal notice that "(1) gives the agency written notice of his or her claim sufficient to enable the agency to investigate and (2) places a value on his or her claim." Douglas v. United States, 658 F.2d 445, 447 (6th Cir. 1981) (quoting Adams, 615 F.2d at 289).
The Court notes that 28 C.F.R. § 14.2 was amended in 1987 to specifically reference 28 U.S.C. § 2675, following a spate of decisions declining to apply the regulations to section 2675. However, the amendment cannot overcome the holdings of numerous courts finding that the Attorney General simply lacks the statutory authority to promulgate jurisdictional regulations under section 2675. As the Ninth Circuit explained in Warren v. United States:
We find the relevant statutes and their legislative histories reveal that Congress did not intend to treat regulations promulgated pursuant to section 2672 as jurisdictional prerequisites under section 2675(a) . . . . The regulations in question [sections 14.2-14.3] were promulgated by the Attorney General pursuant to this authority [section 2672]. Nothing in this language suggests that these regulations are to be applied jurisdictionally under section 2675(a). If Congress intended to authorize the promulgation of jurisdictional regulations, it would have created that authority directly. Congress has never delegated such authority under section 2675(a).
724 F.2d at 778.
The amendment to section 14.2 is ineffective because it cannot overcome the Attorney General's lack of statutory authority to promulgate jurisdictional regulations under section 2675.
The government relies on Pringle v. United States, 419 F. Supp. 289 (D.S.C. 1976), and Del Valle v. Veterans Administration, 571 F. Supp. 676 (S.D.N.Y. 1983), in arguing that this Court does not have jurisdiction over this case. The district court in Pringle determined that the requirements in 28 C.F.R. § 14 applied to the notice provision of section 2675. Similarly, the Court in Del Valle, relying in part on Pringle, held that failure to meet the requirements of 28 C.F.R. § 14.3 deprived the district court of jurisdiction under 28 U.S.C. § 2675(a). Having reviewed the statutes and regulations in question and the legal authority interpreting the FTCA, the Court must agree with the weight of authority and find that Pringle and Del Valle are without support. Thus, the Court declines to follow those decisions.
Plaintiff met the requirements of 28 U.S.C. § 2675(a) by filing the claim form prior to the expiration of the two year statute of limitations. Although plaintiff was not the personal representative of the decedent at that time, his submission provided the government with the minimal notice required under the FTCA so that it could adequately investigate the claim. Moreover, plaintiff was the decedent's duly appointed executor at the time this action was commenced. Thus, plaintiff has met the minimal requirements of 28 U.S.C. § 2675(a) and this Court has subject matter jurisdiction over this action. Defendant's motion to dismiss the action must therefore be denied.
For the foregoing reasons, defendant's motion for dismissal pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure hereby is denied.
Dated: October 26, 1992
New York, New York
Peter K. Leisure