The opinion of the court was delivered by: ARTHUR SPATT, District Judge
MEMORANDUM OF DECISION AND ORDER
The claims of the Plaintiff Aleksandr Furman's ("Furman" or the
"Plaintiff") against the United States Postal Service ("USPS"),
Clarence Robinson ("Robinson"), the City of Long Beach ("Long
Beach"), and Ronald L. Paganini ("Paganini") arise out of a
collision that allegedly occurred on July 22, 2002 involving a
motor vehicle owned by Long Beach and a USPS motor vehicle
operated by Robinson.
Presently before the Court is a motion by the USPS and Robinson
pursuant to Rule 12(b)(1) and Rule 12(b)(6) of the Federal Rules
of Civil Procedure ("Fed.R.Civ.P.") to dismiss the complaint
for lack of subject matter jurisdiction and for failure to state
According to the Complaint, on July 22, 2002, Robinson, an
employee of the USPS, while operating a USPS vehicle, collided
with a Long Beach transit bus that was operated by Ronald L.
Paganini. Furman was a passenger in the bus and alleges that as a
result of this accident he suffered serious injuries as defined
by New York Insurance Law § 5102(d) and economic losses.
The Plaintiff, through his attorney Guy R. Vitacco, Esq., filed
an administrative claim with the USPS by submitting a Standard
Form 95 dated September 12, 2002 (the "SF-95"). In the SF-95, the
Plaintiff claimed that he sustained "serious, severe and
permanent injuries" as a result of the July 22, 2002 accident and
requested damages in the amount of $350,000.
By letter dated September 23, 2002, Robert Ural, an
Accident/Claims Investigator for the USPS, acknowledged receipt
of the Plaintiff's claim and advised Vitacco that he must
substantiate his claim in accordance with Paragraph (a) of the
"Instructions" section on the Standard Form 95 ("Paragraph (a)").
Paragraph (a) states:
In support of the claim for personal injury or death,
the claimant should submit a written report by the
attending physician, showing the nature and extent of
injury, the nature and extent of treatment, the
degree of permanent disability, if any, the
prognosis, and th period of hospitalization, or
incapacitation, attaching itemized bills for medical,
hospital, or burial expenses actually incurred.
The September 23, 2002 letter also indicated that "incomplete
or incorrectly submitted forms, bills, etc. will cause delay in
adjudication of the claim. You are therefore advised to exercise
extreme care in completion of said forms." The Plaintiff did not
respond or provide any documentation in response to this letter.
By letters dated May 15, 2003 and June 27, 2003, the USPS
further advised Vitacco of the need to provide medical reports,
itemized medical bills, and wage loss statements. The June 27,
2003 letter also advised the Plaintiff that Paragraph (a) must be
complied with before the claim can be considered for
adjudication. This letter further warned that if the Plaintiff
does not submit the requested materials within 21 days from the
date of the letter, the USPS will be unable to properly evaluate
the claim and will have no recourse but to issue a denial. By
letter dated July 18, 2003, the USPS denied the Plaintiff's claim
because it did not receive the requested information.
On July 28, 2003, the Plaintiff commenced the instant action.
Thereafter, ten months later, on May 24, 2004, Vitacco mailed to
the USPS, by certified mail, return receipt requested, copies of
the Plaintiff's medical records and medical bills regarding the
incident in question. The mailing records indicate that these
documents were received by the USPS on June 4, 2004.
1. Standard of Review for a Motion to Dismiss
When considering a motion to dismiss for lack of subject matter
jurisdiction under Rule 12(b)(1), the Court may consider
affidavits and other materials beyond the pleadings to resolve
jurisdictional questions. See Robinson v. Gov't of Malaysia,
269 F.3d 133, 141 n. 6 (2d Cir. 2001). Under Rule 12(b)(1), the
court must accept as true all material factual allegations in the
complain but will not draw inferences favorable to the party
asserting jurisdiction. See Shipping Fin. Servs. Corp. v.
Drakos, 140 F.3d 129, 131 (2d Cir. 1998). Hearsay statements
contained in the affidavits may not be considered. See Kamen v.
AT&T, 791 F.2d 1006, 1011 (2d Cir. 1986).
The party asserting jurisdiction has the burden of pleading and
proving compliance with the procedural requirements of the FTCA.
In re Agent Orange Product Liability Litigation, 818 F.2d 210,
214 (2d Cir. 1987). Absent sufficient proof by the ...