The opinion of the court was delivered by: William M. Skretny United States District Judge
Plaintiff Anthony Cerrone commenced this action against Defendant United States of America under the Federal Tort Claims Act ("FTCA"). Presently before this Court is Defendant's Motion to Dismiss Plaintiff's Complaint pursuant to Rules 12(b)(1) and (6), and alternatively, Rule 56 of the Federal Rules of Civil Procedure.*fn1 Having considered the parties' written submissions and the applicable law, this Court will grant Defendant's motion and dismiss Plaintiff's Complaint.
On or about May 10, 1999, the Army Corps of Engineers ("the Corps") issued a Solicitation for Bid for the construction of a Consolidated Maintenance Facility at the United States Air Base located in Niagara Falls, New York. (Defendant's Statement, ¶ 1.*fn2 ) On June 30, 1999, the Corps awarded Sicoli and Massara ("Sicoli"), a local contractor, the contract to build the new facility. (Defendant's Statement, ¶ 3.) Under the terms of the contract, Sicoli was required to, among other things, procure and maintain proper insurance (Defendant's Statement, Exhibit B, pp. 214, 244*fn3 ), to superintend the worksite (Defendant's Statement, Exhibit B, p. 231), to comply with all applicable laws, regulations and codes (Defendant's Statement, Exhibit B, p. 231), and to be generally responsible for worksite safety and accident prevention (Defendant's Statement, Exhibit B, pp. 229-230).
Plaintiff worked as a laborer for Sicoli on the construction of the new maintenance facility. (Defendant's Statement, ¶ 4.) On August 16, 2000, Plaintiff fell and injured himself while pouring concrete. (Defendant's Statement, ¶ 5.) At the time, Plaintiff was standing on a grid of steel bars approximately 12 inches apart raking concrete when he slipped. His feet dropped into the opening between the bars and his upper body fell backwards onto the bars. (Plaintiff's Statement, Exhibit E, pp. 39-41.*fn4 ) Plaintiff suffered multiple injuries as a result of this accident.
Plaintiff filed his Complaint in the United States District Court for the Western District of New York on November 12, 2003, seeking damages in the amount of $20,000,000 on each claim. Defendant filed an Answer to the Complaint on April 22, 2004, and an Amended Answer on August 18, 2004. Thereafter, Defendant filed the instant motion on November 16, 2005. After full briefing, this Court took the motion under advisement on February 10, 2006, without oral argument.
Defendant's motion, although brought under various provisions of the federal rules, principally seeks dismissal of Plaintiff's Complaint based on lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). "A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).
In considering a Rule 12(b)(1) motion, the allegations contained in the Complaint are deemed true, and the court may consider affidavits and other material beyond the pleadings to resolve the jurisdictional question.*fn5 See id. (citing Kamen v. Am. Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986)). It is the plaintiff's burden to establish proper jurisdiction by a preponderance of evidence. Lunney v. United States, 319 F.3d 550, 554 (2d Cir. 2003); Malik v. Meissner, 82 F.3d 560, 562 (2d Cir. 1996).
A. Plaintiff's First Cause of Action
Plaintiff's first cause of action is brought under the FTCA and alleges that Defendant acted negligently by failing to (1) provide Plaintiff a safe place to work, (2) ensure the existence of adequate safety devices, such as planking, and (3) provide adequate supervision. (Complaint, ¶¶ 9-11.) Defendant argues that this Court lacks subject matter jurisdiction over these claims because sovereign immunity shields the United States from liability with ...