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Yesina v. United States

United States District Court, E.D. New York

December 27, 2012

Irina YESINA, Plaintiff,
v.
UNITED STATES of America, Defendant.

Page 218

William Pager, Law Offices of William Pager, Brooklyn, NY, for Plaintiff.

James R. Cho, United States Attorneys Office, Brooklyn, NY, for Defendant.

MEMORANDUM & ORDER

ROSLYNN R. MAUSKOPF, District Judge.

Plaintiff Irina Yesina brings this action against the United States of America for monetary relief arising out of the USA's alleged negligence in supervising, maintaining, inspecting, repairing, or otherwise controlling the operation of the Ferris wheel at Floyd Bennett Field, a recreational facility located within the National Park System. Presently before the Court is the United States' motion to dismiss Yesina's complaint under Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction. (Doc. No. 10.) Yesina opposed the motion (Doc. No. 9), to which the United States replied (Doc. No. 13.) [1] For the following reasons, the United States' motion is granted.

BACKGROUND[2]

Floyd Bennett Field (" FBF" ) is located in Brooklyn, NY. FBF is part of the Gateway National Recreation Area (" Gateway" ). Gateway, in turn, is a unit of the National Park System. The National Park System is administered by the National Park Service (" Park Service" ), a division of the United States Department of Interior. (Finley Decl. (Doc. No. 11) ¶ 2.)

The United States, acting through the Park Service, contracted with Arklow-FBF, LLC, d/b/a Aviator Sports and Recreation Center (" Aviator" ) on or about December 31, 2008 for Aviator to manage and operate recreational facilities at FBF. ( Id. ¶ 3.) As part of Aviator's duties, the

Page 219

contract allocated day-to-day management and responsibility over the hiring, training, managing and monitoring of its employees to Aviator. ( See Ex. 1 to Finley Decl. (Doc. No. 11-1) (the " Contract" ) at US21-22.) The Contract requires Aviator to provide all personnel necessary to operating FBF. ( Id. at US21.) It requires Aviator to establish screening, hiring, training, employment, and termination policies. ( Id. at US22.) It requires Aviator to " review the conduct of any of its employees whose action or activities are considered ... inconsistent with the proper administration of [the Contract] and ... take such actions as are necessary to correct the situation." ( Id. ) It also requires Aviator to hire a " lead manager" who is responsible for " carrying out the terms of this Contract." ( Id. at US52.)

The Contract also assigned Aviator responsibility to maintain the facilities at FBF. The Contract provides that Aviator " shall be solely responsible for maintenance, repairs, housekeeping, and groundskeeping for all Concession Facilities ...." ( Id. at US31.) The Contract required the Park Service to " undertake appropriate inspections." ( Id. ) John Finley, the Business Management Specialist at Gateway, inspected FBF approximately four times a year. (Finley Decl. ¶¶ 1, 19.)

Ensuring safety was the responsibility of Aviator under the Contract. The Contract requires Aviator to " address all aspects of personal safety and protection of property." (Contract at US64.) It also states that " Concession-operated facilities will be patrolled 7 days per week and 24 hours per day either by Concession employees or bonded guard service in order to secure government, concessioner and visitor property from theft, vandalism and fire." ( Id. ) Aviator was also responsible for designing a safety and security plan, to be reviewed by the Park Service on an annual basis. ( Id. )

Aviator agreed in the Contract to " assume liability for and ... to save, hold harmless, protect, defend, and indemnify the United States of America ... from and against any and all liabilities, obligations, losses, damages or judgments ... claims, actions, suits, costs and expenses ... of any kind and nature whatsoever...." (Contract at US34.) The Contract required Aviator to obtain and maintain insurance necessary to fulfill its obligations under the Contract at its sole expense. ( Id. at US35.)

Under the Contract, Aviator may hold special events at FBF, without the advance approval of the Park Service. ( Id. at US59.) Security requirements for special events are to be determined by Aviator, in consultation with the Park Service. ( Id. at 64-66.) The Park Service participates in ensuring safety at special events; the Contract required Park Service police to patrol FBF during these events. (Contract at US64-66.) One such special event was the Kings County Fair, held between May 19 and May 30, 2011. (Finley Decl. ¶ 8.) Aviator subcontracted with Reithoffer ...


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