The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge
The defendant the United States of America (the "Government")
has moved under Rule 12(b) (1), Fed.R.Civ.P., to dismiss the
complaint of plaintiffs Barbara Fisko ("Fisko" or the
"Plaintiff") and her husband Matthew Cardinale ("Cardinale"),
(collectively, the "Plaintiffs") seeking damages for a fall
resulting from a defective sidewalk and drain. For the reasons
set forth below, the motion is granted, and the complaint
The Plaintiffs filed their complaint on December 20, 2004,
pursuant to the Federal Tort Claims Act ("FTCA"),
28 U.S.C. §§ 1346, 2671-80, alleging that Fisko was injured on April 2, 1997
while walking on a thoroughfare between buildings Five, Six, and
Seven of the former World Trade Center, when she tripped and fell
due to a defective sidewalk and an unsecured drainage cover and
that the Government was negligent in failing to maintain these
premises in a reasonably safe condition. In addition to the
Government, the Plaintiffs named as a defendant "U.S. General
Services Administration, as an Executive Agency of the United
States of America." Since the only proper defendant in an FTCA
action is the United States of America, 28 U.S.C. § 2679 (a), the
US General Services Administration is dismissed from this action,
Diaz v. U.S. Postal Service, No. 02 Civ. 8892 (NRB), 2003 WL
21767530, at *1, n. 1, 2003 U.S. Dist. LEXIS 13199 (S.D.N.Y. July 31,
2003), a proposition not challenged by the Plaintiffs. Cardinale
maintains that he is entitled to compensation for lost services,
companionship, consortium, and comfort of his wife.
The Government's motion to dismiss was heard and marked fully
submitted on May 25, 2005. By affidavit of counsel for the
Plaintiffs, the Plaintiffs have conceded that the claim of
Cardinale is barred by a failure to exhaust his administrative
remedies, that Fisko's claim is limited to $2 million, the amount
of her administrative claim, and that there is no right to a jury
trial. The remaining issue is whether or not Fisko has
established jurisdiction in this Court.
The facts are described in the complaint as follows.
On April 2, 1997, Fisko was injured while she was walking on
the Plaza, a public thoroughfare located between buildings Five,
Six, and Seven of the former World Trade Center when she tripped
and fell due to a "defective sidewalk and an unsecured drainage
cover" and was "violently propelled to the ground." See
Complaint ("Compl."), ¶¶ 1, 8, 9. The complaint alleges that the
Government was negligent in failing to properly inspect,
maintain, or repair the sidewalk and the drain, and in failing to
provide a safe environment for Fisko and that as a result, Fisko required
extensive medical attention and treatment. See Compl. ¶ 9.
On or about April 2, 1999, Fisko filed an administrative claim
with the General Services Administration ("GSA") seeking $2
million in damages for injuries sustained when she "was walking
in the plaza area near 7 World Trade Center" and "tripped and
fell over a drainage hole." See Claim For Damage, Injury, or
Death Filed by Claimant Barbara Fisko, dated April 2, 1999,
attached as Exhibit A to the Declaration of Mark S. Johnson
("Johnson Decl."). The GSA denied Plaintiff's claim on June 22,
2004. See Letter from Mark S. Johnson, dated June 22, 2004,
attached as Exhibit B to the Johnson Decl.
Certain additional facts are relevant to the jurisdictional
issue raised by the Government and are appropriate for
consideration without the necessity to convert the Government's
motion to that for summary judgment. See Perezic v. Crespo,
No. 94 Civ. 8238 (SHS), 1996 WL 233687, at *3, 1996 U.S. Dist.
LEXIS 6046 (S.D.N.Y. May 7, 1997).
GSA entered into a lease with the Port Authority, dated June 2,
1970, for space which comprised the entire premises known as Six
World Trade Center for use primarily by the United States Customs
Service. On April 2, 1997, GSA was using the space pursuant to the terms of the lease. See Declaration of Florine
Rhodes, dated March 17, 2005 ("Rhodes Decl."), ¶ 2.
On October 1, 1995, the Government, through GSA, entered into a
contract with Eastco Building Services, Inc. (the "Eastco
Contract"). Id. ¶ 5. Pursuant to the Eastco Contract, Eastco
was responsible for the maintenance, supervision, and repair of
the sidewalks and drainage systems in the plaza area surrounding
World Trade Center Six. Id. ¶ 4. Section C, paragraph 1 of the
Eastco Contract, entitled "Scope of Work," specified in
subsection A, that "the Contractor shall provide all management,
supervision, labor, material, supplies, repair parts, tools and
equipment, and shall plan, schedule, coordinate, and ensure
effective and economical completion of all work and services
specified in this contract." Id. ¶ 6. In addition, Section C,
paragraph 8 of the Eastco Contract, entitled "Architectural and
Structural Repairs," specified in subsection A that "The
Contractor shall provide all labor, equipment and materials
necessary to perform all architectural and structural maintenance
and repairs to the interior and exterior of the facility
including but not limited to: . . . sidewalks . . ." Id. ¶ 7.
Subsection B further provided: "The level of maintenance shall
assure that the property is free of missing components or defects
which affect the safety . . . of the facility." Id. Section J, Exhibit 1, Paragraph B(1) (i) of the Eastco Contract
included "storm drainage equipment and systems" as equipment to
be "operated, maintained and repaired" by Eastco. Id. ¶ 8.
Paragraph B (2) of Section J, Exhibit 1, stated that: "The GSA
Form 1736 (Equipment Inventory List) provides an inventory of the
equipment and systems installed in the building(s) which must be
serviced." Id. Section J, Exhibit 2, of the Eastco Contract,
which contains GSA Form 1736 (Equipment Inventory List), includes
"40 areaway drains" located on the Plaza among the equipment to
be maintained and serviced by Eastco. Id. ¶ 9.
The Contract includes a section pertaining to "Preventive
Maintenance," which according to Fisko limits Eastco's duty with
respect to repair and maintenance of the areaway drains to annual
inspection of the drains, and establishes that the Government,
and not Eastco, had responsibility for any further repairs. See
Plaintiffs' Memorandum of Law in Opposition to Government's
Motion to Dismiss the Complaint ("Pl. Br."), at 2-3. Nelson
Palma, Buildings Manager of the Greater Manhattan Field Office of
GSA, Region II, has stated by affidavit that preventive
maintenance is maintenance performed to prevent the failure and
breakdown of equipment and occurs on a less frequent basis than
repair of equipment. See Declaration of Nelson Palma ("Palma
Decl."), ¶ 4. Eastco was responsible for both preventive
maintenance and supervision of the equipment and repairs as
needed and had a separate obligation under the Contract to
maintain and repair the equipment covered under the Contract, including the drains, on a
regular basis. Id.; see also Rhodes Decl., ¶¶ 7-9.
According to Palma, this responsibility included patrolling the
plaza on a daily basis and looking for any defects in equipment,
such as loose drains, that might occur on the property and
providing for their repair. Palma Decl. ¶ 4.
No GSA employee supervised the day-to-day operations of Eastco,
which performed maintenance of the sidewalks, storm drainage
system, and equipment in the Plaza. See Rhodes Decl. ¶ 11. No
GSA employee supervised or directed the work of Eastco employees.
Id. Eastco maintained ...