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November 3, 2005.


The opinion of the court was delivered by: PAUL CROTTY, District Judge


On January 14, 2005, plaintiff Louie Vecchio filed this action against defendant The United States of America (the "Government") pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680, seeking damages for an injury that occurred on January 16, 2003 while plaintiff was working at West Point Military Academy ("West Point"), a facility owned by the U.S. Government. The Government now moves, pursuant to Federal Rule of Civil Procedure ("FRCP") 12(b)(1), to dismiss plaintiff's complaint for lack of subject matter jurisdiction. Plaintiff cannot prove that his notice of claim was received by the Claims Department at West Point, as required under the FTCA, see 28 U.S.C. § 2675(a), and so the Government argues that the Court Iacks subject matter jurisdiction. The Court holds that plaintiff did not "present" his claim as required by 28 U.S.C. § 2675(a), and accordingly grants the Government's motion to dismiss the complaint.


  Plaintiff Louie Vecchio ("Vecchio") was previously employed by Crown Waterproofing. (Pl.'s Memorandum of Law in Opp'n to Def.'s Mot'n to Dismiss ("Pl's Memo of Law"), p. 5.) On January 16, 2003, Crown Waterproof was performing repair work on the roof of the football stadium at the U.S. Military Academy at West Point ("West Point"). (Id.) While working on the roof, plaintiff fell off a ladder on the rooftop due to a previous ice and snow condition that had no been cleared. (Id.) As a result of the fall, plaintiff suffered severe damage to his face, collar bone and shoulder, and was forced to undergo surgery. (Id.)

  On May 29, 2003, plaintiff's attorney prepared a claim notification letter to West Point. (Id.) The letter was addressed to "United States Military Academy at West Point Military Academy, West Point, New York 10996, Attention: Legal Department/Claim Department," and mailed the same day, via regular mail, by Michelle Forte, a paralegal employed by plaintiff's attorney. (Id.; Forte Aff. ¶ 7.) While the Claim Department has no record that Mr. Vecchio's claim was ever received, (Id. ¶ 6), the letter was never returned by the U.S. Postal Service as undelivered. (Forte Aff. ¶ 10.) After May 29, 2003, plaintiff made no further attempts to contact the West Point Claims Department or to pursue the claim in any fashion. The matter remained dormant for almost twenty months, until plaintiff filed his complaint on January 14, 2005.

  The Government claims that it never received plaintiff's May 29, 2003 claim notification letter. To support this assertion, the Government submits two employee affidavits. In the first declaration, Ms. Allisa Minchillo, a Claims Examiner in the Claims Division at West Point, testifies that it is ordinary practice and procedure at her office to prepare a potential claim file and log in all pertinent information immediately upon receipt of any writing concerning a potential tort claim. (Minchillo Decl. ¶ 4.) She further testifies that she personally searched all of the open, closed, and potential tort claims against West Point since 1996, but was unable to locate any records of a claim from or on behalf of Mr. Vecchio. (Id. ¶¶ 1, 6.) This creates an inference that no claim was ever received from Mr. Vecchio. Ms. Minchillo also states that the May 29, 2003 claim notification letter did not use the full and correct address of the West Point Claims Department, which should have included the street address of 646 Swift Road, West Point, New York 10996. (Id. ¶ 5.)

  The Government's second declaration is from Mr. Joseph H. Rouse, the Deputy Chief of the Tort Claims Division, U.S. Army Claims Service, the national headquarters for the processing of all tort claims against the U.S. Army. (Rouse Decl. ¶¶ 1-2.) This declaration contains similar statements: It is the ordinary practice and procedure of the U.S. Army Claims Service to enter all tort claims against the U.S. Army into a central electronic database, dating as far back as 1988, to which Mr. Rouse has access. (Id. ¶ 2.) Mr. Rouse personally searched the database, but found no record of an administrative tort claim filed by, or on behalf of, Mr. Vecchio. (Id. ¶ 3.)

  The Government's position is that since West Point never received plaintiff's claim notification letter, plaintiff's administrative claim was not "presented" to the proper federal agency, as required under the FTCA. Therefore, plaintiff failed to exhaust his administrative remedies and so may not institute this action. Plaintiff counters that the Court has subject matter jurisdiction because the Court must presume, based on plaintiff's proof of mailing, that West Point received notice of the claim. Since the Claims Department failed to adjust the claim within six months after it was filed, as required by the FTCA, 28 U.S.C. § 2675(a), plaintiff may initiate this action.

  DISCUSSION A. Legal Standard on a Motion to Dismiss the Complaint

  The Court must dismiss an action for lack of subject matter jurisdiction pursuant to FRCP 12(b)(1) when it "lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). When deciding a motion to dismiss for lack of subject matter jurisdiction, the Court "may also consider evidence outside of the pleadings, such as affidavits and other documents that are relevant to the issue of subject matter jurisdiction." Rodriguez v. United States, No. 02 Civ. 6947 (SHS), 2003 WL 21961121, at *1 (S.D.N.Y. Aug. 14, 2003) (citing Makarova, 201 F.3d at 113, for this proposition). Ultimately, plaintiff bears the burden of establishing, by a preponderance of the evidence, that the Court has subject matter jurisdiction over his complaint. Luckett v. Bure, 290 F.3d 493, 497 (2d Cir. 2002); Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000); Malik v. Meissner, 82 F.3d 560, 562 (2d Cir. 1996).

  B. Jurisdictional Requirements for Waiving Sovereign Immunity Under the FTCA

  Section 2675(a) of the FTCA provides that:
An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury caused by the negligent or wrongful act or omission of any employee of the Government . . . unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied. . . .
28 U.S.C. § 2675(a) (emphasis added). "[A] claim shall have been deemed to have been presented when a Federal agency receives from a claimant . . . written notification of an incident, accompanied by a claim for money damages in a sum certain. . . ." 28 C.F.R. § 14.2(a) (emphasis added). The claimant has two years from the date of the incident to file a claim with the proper Federal agency. 28 U.S.C. § 2401(b). These procedural requirements are "jurisdictional and cannot be waived." Keene Corp. v. United States, 700 F.2d 836, 841 (2d Cir.), cert. denied, 464 U.S. 864 (1983). The Court may not proceed in the absence of these conditions merely because dismissing the case would visit a harsh result upon the plaintiff.*fn1 United States v. Kubrick, 444 U.S. 111, 117-18 (1979) (stating that since the FTCA waives the immunity of the Government, the courts `should not take it upon ourselves to extend the waiver beyond that which Congress intended"); Keene Corp., 700 F.2d at 841 (2d Cir.) ("[B]ecause the FTCA constitutes a waiver of sovereign immunity, the procedures set forth in Section 2675 must be adhered to strictly."); see also Bell v. United States, No. 86 Civ. 1759, 1986 WL 13401, at *1 (D. Mass. Nov. 20, 1986) (declining to permit a claim presented to the Government one day late, even though the Court was "cognizant of the harsh result visited upon the plaintiff . . . [because] the FTCA waives the immunity of the United States").

  Since Plaintiff seeks to invoke the jurisdiction of this court pursuant to the FTCA, plaintiff had the burden of proving by a preponderance of the evidence that he "presented" his claim to West Point within two years of his accident. As the language of the statute makes clear, to meet this burden, plaintiff had to establish not only that he mailed his claim, but that the West Point Claims Department received his claim. In an effort to prove receipt, plaintiff presents evidence that his attorney mailed a claim notification letter, via regular mail, on May 29, 2003, only four months after his accident. The letter was not certified, nor was a return receipt card included. Plaintiff presents no evidence affirmatively establishing that his claim letter was received by the Claims Department at West Point. There is no acknowledgment letter from the West Point Claims Department, as is the normal practice. Instead, plaintiff's attorney urges the Court to find that the mere mailing of the letter on May 29, 2003 establishes a presumption that the letter was received, and therefore "presented." The Government, on the other hand, urges that mere mailing is not sufficient to establish a presumption of receipt under the FTCA; or, in the alternative, that if presumption of receipt were established, it is rebutted by affidavits attesting to the fact that the letter was not received by the Government.

  Thus, the question before the Court, on the facts of this case, is whether proof that a letter was deposited in the postal mail is sufficient to meet the definition of "presentment" as contemplated by § 2675(a) of the FTCA, where plaintiff cannot prove actual receipt of the claim by the appropriate federal agency and where ...

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