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MORENO v. UNITED STATES

May 28, 1997

JULIO MORENO, Plaintiff, against UNITED STATES OF AMERICA, UNITED STATES MARSHALS SERVICE, Defendants.


The opinion of the court was delivered by: KRAM

 SHIRLEY WOHL KRAM, U.S.D.J.

 In this personal injury action, defendants the United States of America and the United States Marshals Service (the "USMS") move to dismiss the complaint of plaintiff Julio Moreno ("Moreno"), pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), on the grounds that the Court lacks subject matter jurisdiction to hear Moreno's claim. For the reasons set forth below, defendants' motion is granted.

 On or about October 22, 1992, the USMS seized an apartment building located at 560 West 165th Street in New York (the "Building"), pursuant to a federal seizure warrant. The seizure warrant provided that the USMS was to use its discretion in maintaining the Building. Seizure Warrant, dated Oct. 22, 1992, annexed to the Declaration of Robert Johnson, dated Sept. 3, 1996 (the "Johnson Decl."), as Exh. "A," at 2. On or about November 1, 1992, the USMS executed a contract with P&L Management and Consulting, Inc. ("P&L") for the management of the Building (the "Contract"). Johnson Decl. at P 4.

 Pursuant to the Contract, P&L agreed to "exercise due diligence and care" to

 
cause the Building to be maintained in such condition as may be deemed advisable by the USMS, including interior and exterior cleaning, and cause repairs and alterations of the Building to be made, including, but not limited to, electrical, plumbing, carpentry, masonry, elevator, decorating, and such other incidental alterations or changes therein as may be proper . . . .

 Contract, dated Nov. 1, 1992, annexed to the Johnson Decl. as Exh. "B," at P III(B). In addition, P&L expressly agreed to: (1) perform all ordinary repairs and alterations; (2) determine the need for emergency repairs, including those immediately necessary for the safety of the tenants; (3) make all such emergency repairs; (4) to ensure that the Building was in compliance with all applicable laws; and (5) attend to the complaints of the tenants. Id. Moreover, under the Contract P&L was solely responsible for the daily management of the Building, including, inter alia, keeping the books, executing lease agreements, collecting rents, hiring independent contractors and providing regular reports to the USMS. Id. PP III(D), (G)-(K), (O)-(P). The USMS, on the other hand, was responsible for monitoring the financial condition of the Building by periodically inspecting the records maintained by P&L and approving certain expenditures exceeding $ 500. Id.

 On or about April 15, 1994, Moreno was in a community bathroom on the fourth floor of the Building. *fn1" Moreno claims that he tripped over a loose and/or defective floor drain cover and fell. As a result, Moreno allegedly suffered serious and permanent personal injuries. Specifically, he sustained a "severe shock" to his nervous system, Complaint, filed May 17, 1996, at P 27, which eventually required surgery, caused paralysis of his lower extremities, and resulted in the amputation of his right toes, Pl.'s Mem. of Law, dated March 4, 1997, at 2. Although Moreno claims that he was taken to Columbia Presbyterian Hospital by ambulance, see Affidavit of Julio Moreno, dated March 4, 1997, at P 3, defendants assert that the Building records indicate that no emergency medical services were summoned on either April 14 or April 15, 1994, see Declaration of Nancy Evans, dated Sept. 3, 1996 (the "Evans Decl.") at P 8.

 On or about May 4, 1994, Moreno's counsel sent a letter to the USMS, informing them of Moreno's accident and of his intent to pursue a tort claim. In response, the USMS provided Moreno's counsel with administrative tort claims forms and requested that Moreno forward medical documentation to substantiate his allegations. The USMS claims that despite numerous requests, both oral and written, Moreno never provided supplied medical documentation in support of his claim. On December 8, 1995, Moreno was advised that his administrative tort claim against the USMS was denied as a result of the USMS's investigation of the facts and because of Moreno's failure to provide substantiating documentation.

 On or about May 17, 1996, Moreno initiated the instant action pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. ยงยง 1346(b), 2401(b), 2671, et seq., seeking to recover $ 25 million for the injuries he sustained.

 DISCUSSION

 I. Rule 12(b)(1)


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