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Dendy v. United States

March 30, 2009

VICTORIA L. DENDY, PLAINTIFF,
v.
UNITED STATES OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: Scullin, Senior Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

On March 7, 2007, Plaintiff Victoria L. Dendy filed this action against Defendant United States of America pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq., for injuries she allegedly suffered during an automobile accident in Syracuse, New York.

Currently before the Court is Defendant's motion for summary judgment on the following grounds: (1) the FTCA limits Plaintiff's claim to $58,800.00, the amount specified in Plaintiff's administrative claim;*fn1 (2) New York State's No-Fault Law bars Plaintiff's claim for non-economic loss; (3) Plaintiff cannot show that the accident is the proximate cause of her injuries; and (4) Plaintiff cannot show economic loss in excess of $50,000.

II. BACKGROUND

On February 14, 2003, Plaintiff was involved in an automobile accident where her car collided with a government-operated vehicle at 12:50 p.m at Thompson Road and Burnett Avenue in Syracuse, New York.*fn2 Plaintiff alleges that a Federal Bureau of Investigation ("FBI") employee was driving too fast, failed to look for other cars, did not have control of the vehicle, did not take precautions, and was reckless and negligent. On February 1, 2005, Plaintiff submitted an administrative claim to the FBI for $58,800.00, which the FBI denied on September 19, 2006.

III. DISCUSSION

A. Standard of Review

Summary judgment is appropriate where "'there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.'" Ancekewicz v. Long Island Univ., No. 02-CV-4490, 2005 WL 1411917, *3 (E.D.N.Y. June 15, 2005) (quotation omitted).In response to such a motion, the non-moving party cannot rely exclusively on unsupported assertions or the allegations in her pleadings. See id. at *4 (citations omitted).

Furthermore, under Fed. R. Civ. P. 56(e), if a non-moving party does not oppose a summary judgment motion, judgment shall be entered against that party if appropriate - meaning that, "when faced with an unopposed motion of summary judgment, a district court 'must still assess whether the moving party has fulfilled its burden of demonstrating that there is no genuine issue of material fact and its entitlement to judgment as a matter of law.'" Id. (quotation and other citations omitted).*fn3

B. Plaintiff's Personal Injury Claim

Pursuant to the FTCA, "the federal government has consented to be sued for the 'negligent or wrongful acts or omissions' of its employees acting within the scope of their employment 'under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.'" Patrello v. United States, 757 F. Supp. 216, 218 (S.D.N.Y. 1991) (quoting 28 U.S.C. § 1346(b)).

Since this accident occurred in New York, "liability is determined under the law of New York." Id. (citations omitted). If the United States were a private person, the applicable law under these circumstances for recovery for personal injury would be Article 51 of New York's Insurance Law," commonly referred to as New York's "No-Fault Law." Id. (citing N.Y. Insurance Law §§ 5101-5108 (McKinney 1985 & Supp. 1988)). Thus, the FTCA requires the Court to apply such law to the facts of this case. See id. (citations omitted).*fn4

Section 5104 of New York's No-Fault Law, however, "imposes two limitations on tort recovery for personal injuries in actions between 'covered persons' as defined in § 5102(j), that is, persons entitled to [reimbursement for basic economic loss]." Patrello, 757 F. Supp. at 219. "First, the injured party . . . may recover in tort only that basic economic loss which exceeds $50,000." Id. "Second, with regard to 'non-economic loss' or pain and suffering (see § 5102(c)), recovery is limited to that associated with 'serious injury' as defined in § 5102(d)." Id. Therefore, to determine whether Plaintiff can maintain this action under § 5104, the Court must determine whether her basic economic losses exceeded $50,000; and, ...


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