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Newman v. Republic of Bulgaria

United States District Court, S.D. New York

May 2, 2017

EDWARD NEWMAN, Plaintiff,
v.
THE REPUBLIC OF BULGARIA, Defendant.

          FOR PLAINTIFF EDWARD NEWMAN: Thomas J. Foley, Esq. FOLEY GRIFFIN, LLP

          FOR DEFENDANT THE REPUBLIC OF BULGARIA: Christina Hioureas, Esq. Theresa Roosevelt, Esq. FOLEY HOAG LLP

          OPINION & ORDER

          JOHN F. KEENAN, United States District Judge

         Before the Court is a motion by Defendant the Republic of Bulgaria (“Bulgaria”) to dismiss the complaint filed by Plaintiff Edward Newman (“Plaintiff”) pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(2). For the reasons discussed below, Bulgaria's motion is granted and the complaint is dismissed in its entirety.

         I. Background

         Unless otherwise indicated, the following facts are drawn from the complaint and declarations submitted by both parties in relation to this motion. Plaintiff is a resident of the County of New York. (“Complaint, ” Def.'s Notice of Removal Ex. A, ECF No. 1-1 at 29 (filed Dec. 19, 2016).) Bulgaria is a foreign sovereign country that maintains embassies and consulates in the United States. (Id. ¶ 2.) On or about August 10, 2015, Bulgaria owned the premises located at 328 E. 86th Street in New York City and utilized it “for the purpose of housing diplomatic personnel representing the Republic of Bulgaria at the United Nations.” (Id. ¶¶ 5, 10.) The front entrance to 328 E. 86th Street (the “Residence”) is covered by a canopy that extends outward from the building and covers the sidewalk in front of the entrance. (Id. ¶ 11; Stoeva Decl. ¶ 7.) As of August 10, 2015, two primary posts supported the canopy and attached to them were two auxiliary poles extending at roughly a 30-degree angle to provide additional support. (Stoeva Decl. ¶ 7.) Each auxiliary pole extended away from the primary post “in a direction parallel to the curb.” (Id.)

         On August 10, 2015, Plaintiff alleges that one of these auxiliary poles-Plaintiff refers to it as a “support brace”-was “laying across the sidewalk in the path of pedestrians . . . constitut[ing] a dangerous and trap-like condition.” (Compl. ¶¶ 14-15.) While Plaintiff was lawfully walking in front of the Residence, he tripped and fell over the auxiliary pole that was lying across the sidewalk and sustained serious injuries, including a nasal fracture, a tear of the medial meniscus of his left knee, and a tear of the rotator cuff in his right shoulder. (Id. ¶¶ 19-20; Newman Decl. ¶ 3.)

         According to Lachezara Stoeva, a Bulgarian diplomat who resides at the Residence, on August 11, 2015, Bulgaria received a Notice of Violation and Hearing from the City of New York “concerning an auxiliary pole on the curb in front of the building.” (Stoeva Decl. ¶¶ 2, 5, 10.) The notice provided that the condition had a “cure date” of September 21, 2015. (Id.) On August 12, 2015, Ms. Stoeva requested that a member of her staff contact a contractor to address the defect and the contractor removed both auxiliary poles that same day. (Id. ¶ 11.)

         Plaintiff filed this action in the Supreme Court of New York on September 16, 2016. (See “Notice of Commencement of Action, ” Def.'s Notice of Removal Ex. A, ECF No. 1-1 at 49-50.) On December 19, 2016, Bulgaria removed Plaintiff's action to this Court pursuant to 28 U.S.C. 1441(d). (See Notice of Removal, ECF No. 1.) Plaintiff asserts two causes of action: (1) negligence based upon the tortious activity exception to the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. § 1602 et seq, and (2) negligence based upon the commercial activity exception to the FSIA. (Compl. ¶¶ 10-37.)

         On January 17, 2017, Bulgaria moved to dismiss Plaintiff's complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(2). (Def.'s Mem. of L. in Support of Mot. to Dismiss at 1.) In its motion to dismiss, Bulgaria argues that this Court lacks subject matter and personal jurisdiction over Bulgaria pursuant to the FSIA. (Id.) In his opposition to Bulgaria's motion to dismiss, Plaintiff withdraws his claims premised on the commercial activity exception to the FSIA, § 1605(a)(2), “in light of [Bulgaria's] submissions” in the motion to dismiss. (Pl.'s Mem. of L. in Opp. to Def.'s Mot. to Dismiss at 1.) Thus, the only issue remaining is whether the tortious activity exception to the FSIA applies to Plaintiff's first claim for negligence against Bulgaria.

         II. Discussion

         A. Legal Standard

         1. Rule 12(b)(1) and Foreign Sovereign Immunity

         “The FSIA is the sole source for subject matter jurisdiction over any action against a foreign state.” Cabiri v. Gov't of the Republic of Ghana, 165 F.3d 193, 196 (2d Cir. 1999). The FSIA provides that a “foreign state shall be immune from the jurisdiction of the courts of the United States and of the States except as provided in sections 1605 to 1607 of this chapter.” 28 U.S.C. § 1604. Once the defendant presents a prima facie case that it is a foreign state, “the plaintiff has the burden of going forward with evidence showing that, under exceptions to the FSIA, immunity should not be granted, although the ultimate burden of persuasion remains with the alleged foreign sovereign.” Cabiri, 165 F.3d at 196 (internal quotation marks omitted). Accordingly, ...


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