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FURMAN v. U.S. POSTAL SERVICE

December 20, 2004.

ALEKSANDR FURMAN, Plaintiff,
v.
UNITED STATES POSTAL SERVICE, CLARENCE ROBINSON, CITY OF LONG BEACH AND RONALD PAGANINI, Defendants.



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 a claim.

  I. BACKGROUND

  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 ยง 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.

  II. DISCUSSION

  1. Standard of Review for a Motion to Dismiss

  a. Rule 12(b)(1)

  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 ...


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