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NEW YORK v. EADARSO

November 22, 1996

STATE OF NEW YORK, Plaintiff, against CARMEN EADARSO and THERESA EADARSO, Defendant. CARMEN EADARSO, Third-Party Plaintiff, -against- DEPARTMENT OF VETERAN AFFAIRS, Third-Party Defendant.


The opinion of the court was delivered by: SPATT

 SPATT, District Judge.

 The third-party defendant, the Department of Veterans Affairs ("VA" or the "third-party defendant"), moves the Court to dismiss the third-party complaint of the third-party plaintiff Carmen Eadarso ("Eadarso" or the "third-party plaintiff") for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1). The VA submits this motion to dismiss on the ground that the Court's review of the VA's determination not to award benefits to Eadarso is expressly precluded by the provisions of 38 U.S.C. § 511(a).

 I. BACKGROUND

 On or about July 30, 1992, Eadarso was taken to the Veterans' Administration Hospital in Northport, New York after suffering a heart attack. According to the third-party plaintiff, the Veterans Administration Hospital did not have the equipment necessary to treat him. Thus, he was transferred on July 31, 1992 to Stony Brook Medical Center ("Stony Brook"), where he was admitted and received medical treatment through August 6, 1992.

 According to the VA, Eadarso incurred hospital expenses and costs totaling $ 13,126.73 during his stay at Stony Brook and $ 11,354.04 remains outstanding. On March 8, 1996, the State of New York, on behalf of Stony Brook, commenced an action against Eadarso and his wife, Theresa, seeking to recover the unpaid portion of his hospital bill. Subsequently, on April 23, 1996, Eadarso filed this third-party action seeking reimbursement from the VA for whatever amount, if any, that the State of New York recovers from him in this action. Eadarso contends that because he is a veteran, the VA should pay the balance of his bill. As of the commencement of this action, neither Eadarso nor the VA has paid the outstanding amount to Stony Brook.

 II. DISCUSSION

 1. Motion to dismiss for lack of subject matter jurisdiction

 According to the Second Circuit, "in determining whether the federal courts have subject matter jurisdiction over a cause of action, a district court must look to the way the complaint is drawn to see if it claims a right to recover under the laws of the United States." IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1055 (2d Cir. 1993), cert. denied, 130 L. Ed. 2d 38, 115 S. Ct. 86 (1994)(quoting Goldman v. Gallant Sec., Inc., 878 F.2d 71, 73 (2d Cir. 1989)).

 2. 38 U.S.C. § 511(a)

 Section 511 of Title 38 provides:

 
(a) The Secretary [of Veterans Affairs] shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans . . . . Subject to subsection (b), the decision of the Secretary as to any such question shall be final and conclusive and may not be reviewed by any other official or by any court, whether by an action in the nature of mandamus or otherwise.
 
(b) The second sentence of subsection (a) does not apply to--
 
(1) matters subject to section 502 of this title;
 
(2) matters covered by section 1975 and 1984 of ...

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