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February 3, 2000


The opinion of the court was delivered by: Trager, District Judge.


The City of New York and the Department of Parks and Recreation of the City of New York (collectively, "City defendants"); the State of New York, the Department of State, the Department of Environmental Conservation, and the Office of General Services (collectively, "State defendants"); and the United States of America have moved to dismiss the complaint filed by plaintiffs pro se, Linda and Arkady Vaizburd ("Vaizburds"), under Rule 12(b)(1) and (6).*fn1 The Vaizburds allege various causes of action in their eight count complaint (some easier to discern than others) and seek monetary damages totaling $110 million. Their claims arise from damage done to their home and property as a result of the allegedly negligent design and implementation of a storm damage reduction and shoreline protection project on the Coney Island beachfront ("Project").


This huge influx of sand from the Bay is the result of a project undertaken by the United States Army Corps of Engineers ("ACE"). See Mem.Supp. United States' Mot. Dismiss at 2 [hereinafter U.S.Mem.]; Pls.' Aff. Opp'n Def.U.S.Mot. Summ.J., ltr. from the N.Y. State Dept. of Envtl. Conserv. of 7/16/98 ("[A]s a result of the Coney Island/Seagate beach nourishment project undertaken by the U.S. Army Corps of Engineers[,][s] and washed around the western tip of Seagate and accumulated on your property on the lee shoreline."). The Project, which began in April of 1994 and ended in March of 1995, involved filling the Coney Island beach with approximately 2.3 million cubic yards of sand, constructing a stone groin,*fn2 and placing "a fillet*fn3 of sand downdrift of the groin." U.S.Mem. at 2. ACE proposed nine alternative projects that would accomplish these goals and, in a General Design Memorandum, evaluated each project in terms of expense and environmental impact. See id. at 3. ACE initially approved a version of the Project that put the groin at Norton Point and required access through the Sea Gate community. See id. at 4. However, due to strong local opposition, ACE had to adopt an alternative project plan that involved construction of a groin at West 37th Street, on the eastern border of the Sea Gate community. See id. To help minimize any negative impact the groin might have on the shoreline, a fillet of beach was also created, which extends along the downdrift side of the groin for 2,300 feet. See id. The execution of the project, including the construction of the groin and fillet, was not actually performed by ACE but by an independent contractor — Bean Horizon-Weeks Marine Joint Venture. See id. at 5.

Plaintiffs allege*fn4 that the additional sand dumped onto the Coney Island beach, placed around the groin, and placed on the fillet has eroded more rapidly than ACE had predicted. See Compl. ¶¶ 11, 18, 19. This sand has drifted downstream, accumulating directly in front of the Sea Gate community. See id. Plaintiffs are seeking damages from the United States for improper and negligent design and maintenance of the Project; and continuing nuisance.*fn5 See id. ¶¶ 26-32. They seek damages from the State and City defendants for unlawful taking of their property, in violation of the Fourteenth Amendment; conspiracy to deprive them of their civil rights under 28 U.S.C. § 1983 and 18 U.S.C. § 241, 242; violations of various state environmental laws; and continuing and attractive nuisance. See id. ¶¶ 38-53, 58-65. Plaintiffs also seek damages from the City defendants for negligently withholding police assistance. See id. at ¶¶ 54-57.



The United States*fn6

Although the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2401 et seq., waives the sovereign immunity of the United States, allowing it to be sued for its torts, immunity is not waived when one of the exceptions to the FTCA is applicable. The United States maintains that the "discretionary function" exception applies here, negating its waiver of immunity under the FTCA and, thus, removing the jurisdiction of the court.*fn7

The FTCA does not apply to "any claim . . . based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." 28 U.S.C. § 2680(a). A two-prong test has been established by the Supreme Court as a guide to determining which governmental functions are discretionary and which are not. The first prong of the test requires a court to decide whether the act in question "involves an element of judgment or choice." Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 1958, 100 L.Ed.2d 531 (1988). If a "federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow," there is no choice to be made, no judgment to be exercised, and, thus, no discretion. In such a case, the exclusion does not apply. Id.

Once the threshold element of discretion has been found, the second prong of the test must be satisfied with a determination that the "governmental action[] and decision[] [was] based on considerations of public policy." Id. at 537, 108 S.Ct. at 1959. "Because the purpose of the exception is to `prevent judicial "second-guessing" of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort,'" the governmental action must be one that is based upon considerations of public policy in order to qualify for the discretionary function exception. United States v. Gaubert, 499 U.S. 315, 323, 111 S.Ct. 1267, 1273, 113 L.Ed.2d 335 (1991) (quoting Berkovitz, 486 U.S. at 536-37, 108 S.Ct. at 1959). Often, these two prongs intertwine so that "[w]hen established Government policy . . . allows a Government agent to exercise discretion, it must be presumed that the agent's acts are [also] grounded in policy when exercising that discretion." Id. at 324, 111 S.Ct. at 1274.

While "there is no doubt that planning-level decisions establishing programs are protected by the discretionary function exception," id. at 325, 111 S.Ct. at 1275, until the Supreme Court's decision in Gaubert, it was less clear whether actions taken on an operational level could ever be discretionary. Gaubert, however, elucidated the issue by pronouncing the planning-level/operational-level distinction "a nonexistent dichotomy." Id. at 326, 111 S.Ct. at 1275. Since the exception turns on the presence or absence of discretion and since "[d]iscretionary conduct is not confined to the policy or planning level," id. at 325, 111 S.Ct. at 1275, there is no reason that "decisions made at an operational level [can] not also be based on policy." Id. at 326, 111 S.Ct. at 1275. These operational decisions must be examined to determine whether policy-based discretion was exercised in the execution of the project. If the project plan is sufficiently detailed, leaving little or nothing to the exercise of judgment, the negligent implementation of the plan will fall "outside the scope of the discretionary function exception," and the government will be held liable. Id., 111 S.Ct. at 1276; see, e.g., Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955) (because no policy judgment was exercised in the daily maintenance of a lighthouse, the government's failure to keep it in good working condition was not immunized by the FTCA's discretionary function exception); Andrulonis v. United States, 952 F.2d 652, 654 (2d Cir. 1991) (the discretionary function exception did not apply to a government employee's negligent failure to warn, because there was no policy discretion involved in deciding whether or not the warning should be given).

The question of whether a beach erosion project conducted by ACE falls under the discretionary function exception to the FTCA was recently answered affirmatively in this district by Judge Seybert, who adopted the report and recommendation of Magistrate Judge Azrack on this issue. See Devito v. United States, 12 F. Supp.2d 269 (E.D.N.Y. 1998) (Seybert, J.); DeVito v. United States, No. 95-CV-2349, 1997 WL 1038120 (E.D.N.Y Sept. 5, 1997) (Azrack, M.J.). In Devito, plaintiffs sought money damages under the FTCA for the accelerated erosion of their beachfront property which was allegedly caused by various ACE projects undertaken in an effort to stabilize the South Shore of Long Island. See Devito, ...

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