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FISKO v. U.S. GENERAL SERVICES ADMINISTRATION

October 17, 2005.

BARBARA FISKO, MATTHEW CARDINALE, Plaintiffs,
v.
U.S. GENERAL SERVICES ADMINISTRATION, THE UNITED STATES OF AMERICA, Defendants.



The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge

OPINION

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 dismissed.

Prior Proceedings

  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

  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 ...


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