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SIEGAL v. ASHKINAZY

April 7, 1994

ZACHARY SIEGAL and GAE SIEGAL, Plaintiff,
v.
ARLENE LOIS ASHKINAZY, Defendant.



The opinion of the court was delivered by: STERLING JOHNSON, JR.

 JOHNSON, District Judge:

 INTRODUCTION

 Before this Court is a motion by the United States of America (the "government") for summary judgment which was joined by Plaintiffs. This motion is joined by Defendant Arlene Lois Ashkinazy.

 BACKGROUND

 On March 31, 1990, Plaintiff Zachary Siegal was a passenger in a vehicle driven by Jacob "Jack" Ashkinazy which was registered in the name of Defendant Arlene Lois Ashkinazy. Mr. Siegal and Mr. Ashkinazy were members of the Army Reserve and were returning from weekend duty when they were involved in an accident in Maryland.

 On October 14, 1990, Zachary Siegal and Gae Siegal brought suit in the Supreme Court of the State of New York, Queens County against Mr. Ashkinazy for damages. The United States certified that Mr. Ashkinazy was acting within the scope of his employment at the time of the accident, substituted itself as defendant, and removed the action to the Eastern District of New York pursuant to 28 U.S.C. §§ 1442 (a)(1) and 2679(d)(2). This action was captioned Siegal v. United States, 91 CV 0105 and was assigned to Judge Nickerson. Upon a motion by the government, Judge Nickerson dismissed Plaintiffs' complaint on September 2, 1992 for failure to file administrative claims as required by the Federal Tort Claims Act, 28 U.S.C. 2675(a). This decision allowed the Plaintiffs sixty days to cure the jurisdictional defect by filing the administrative claims, but Plaintiffs did not do so.

 Another action, Siegal v. Ashkinazy, No. 11469/91, was removed on August 14, 1992 from the Supreme Court of New York, Rockland County to this court pursuant to 28 U.S.C. §§ 1441, 1442, and 2679(d)(2). The Defendant also sought substitution of the United States as a defendant, and on February 17, 1993 Defendant moved, as third-party plaintiff, to serve the summons and complaint upon the United States on the grounds that the government is liable to the defendant for any judgment. Leave to serve was granted on March 17, 1993. *fn1"

 DISCUSSION

 Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The Court's function is not to resolve disputed issues of fact, but only to determine whether there is a genuine issue to be tried. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986).

 Here, all of the parties have explicitly adopted the facts as set forth by the movant, the United States of America. Therefore, the only dispute is over the correct interpretation of the law. *fn2"

 A. Removal Pursuant to 28 U.S.C. § 1442

 Removal pursuant to 28 U.S.C. § 1442(a)(1) *fn3" can only be requested by ...


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