United States District Court, E.D. New York
ROSEANN SALADINO, as Administratrix of the goods, chattels and credits of Salvatore Scarpinito, deceased Plaintiff,
UNITED STATES OF AMERICA, Defendant.
& SOFFEY LLC Attorneys for Plaintiff.
STATES ATTORNEYS OFFICE Attorneys for Defendant.
MEMORANDUM AND ORDER
R. HURLEY, UNITES STATES DISTRICT JUDGE
Saladino (“plaintiff” or “Saladino”)
commenced this action as Administratrix of the estate of
Salvatore Scarpinito (“Scarpinito”) pursuant to
the Federal Tort Claims Act (“FTCA”), 28 U.S.C.
§ 2671, et seq. Presently before the Court is a
motion to dismiss the Complaint by the United States
(“defendant” or the “government”).
Despite the Court having set a briefing schedule setting
forth the date by which plaintiff was to serve any opposition
papers, plaintiff has not responded to the motion. For the
reasons set forth below, the government's motion is
father, Scarpinito, was a veteran of the United States Armed
Services. On or about September 19, 2013, while Scarpinito
was a patient at a medical facility operated by the
Department of Veterans Affairs, an employee of the facility
injured Scarpinito's ear drum while attempting to remove
ear wax from his ear. As a result, Scarpinito suffered
permanent loss of hearing.
30, 2014, Scarpinito filed an administrative claim with the
United States Department of Veterans Affairs. By letter dated
March 26, 2015, the Department of Veterans Affairs notified
Scarpinito's counsel that said claim was “not
amenable to administrative resolution.” (Compl. ¶
14.) Subsequently, Scarpinito died on May 5, 2015. The
“Letters for the estate of [the] decedent” naming
plaintiff administratrix of Scarpinito's estate were
issued by the Surrogate of Nassau County on November 20,
2015. (Id. ¶ 3.) Plaintiff commenced this
action on March 15, 2016.
deciding a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), a court should “draw all
reasonable inferences in Plaintiff['s] favor, assume all
well-pleaded factual allegations to be true, and determine
whether they plausibly give rise to an entitlement to
relief.” Faber v. Metro. Life Ins. Co., 648
F.3d 98, 104 (2d Cir. 2011) (internal quotation marks
omitted). The plausibility standard is guided by two
principles. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S.
544 (2007)); accord Harris v. Mills, 572
F.3d 66, 71-72 (2d Cir. 2009). First, the principle that a
court must accept all allegations as true is inapplicable to
legal conclusions. Thus, “threadbare recitals of the
elements of a cause of action supported by mere conclusory
statements, do not suffice.” Iqbal, 556 U.S.
at 678. Although “legal conclusions can provide the
framework of a complaint, they must be supported by factual
allegations.” Id. at 679. A plaintiff must
provide facts sufficient to allow each named defendant to
have a fair understanding of what the plaintiff is
complaining about and to know whether there is a legal basis
for recovery. See Twombly, 550 U.S. at 555.
Second, only complaints that state a “plausible claim
for relief” can survive a motion to dismiss.
Iqbal, 556 U.S. at 679. “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged. The
plausibility standard is not akin to a ‘probability
requirement, ' but asks for more than a sheer possibility
that defendant acted unlawfully. Where a complaint pleads
facts that are “merely consistent with” a
defendant's liability, it ‘stops short of the line
between possibility and plausibility of ‘entitlement to
relief.' ” Id. at 678 (quoting
Twombly, 550 U.S. at 556-57) (internal citations
omitted); see In re Elevator Antitrust Litig.,
502 F.3d 47, 50 (2d Cir. 2007). Determining whether a
complaint plausibly states a claim for relief is “a
context specific task that requires the reviewing court to
draw on its judicial experience and common sense.”
Iqbal, 556 U.S. at 679; accord Harris, 572
F.3d at 72.
Plaintiff's FTCA Claim
doctrine of sovereign immunity generally precludes suit
against the federal government and its agencies. F.D.I.C.
v. Meyer, 510 U.S. 471, 475 (1994). In passing
the FTCA, however, Congress “waived the sovereign
immunity of the United States for certain torts committed by
federal employees.” Id. The FTCA provides that
a suit against the United States is the exclusive remedy for
injury “caused by the negligent or wrongful act or
omission of any employee of the Government while acting
within the scope of his office or employment.” 28
U.S.C. § 2675(a). In other words, the FTCA provides
individual government employees with immunity from common law
tort claims if the allegedly tortious conduct occurred within
the scope of their employment. Rivera v. United
States, 928 F.2d 592, 608 (2d Cir. 1991). Additionally,
the FTCA requires that before bringing suit “the
claimant shall have first presented the claim to the
appropriate Federal agency and his claim shall have been
finally denied by the agency in writing and sent by certified
or registered mail, ” otherwise known as the exhaustion
requirement. 28 U.S.C. § 2675(a); see
McNeil v. United States, 508 U.S. 106, 112-113
(1993). Specifically, “a tort claim against the United
States shall be forever barred unless it is presented to the
appropriate Federal agency within two years after such claim
accrues and then brought to federal court within six months
after the agency acts on the claim.” United States
v. Kwai Fun Wong, 135 S.Ct. 1625, 1629 (2015) (internal
quotation marks and citations omitted).
the Supreme Court held that “the FTCA's time bars
are nonjurisdictional and subject to equitable tolling,
” meaning that a court “may pause the
running” of the FTCA's time limitations. Kwai
Fun Wong, 135 S.Ct. at 1631, 1638. “Generally, a
litigant seeking equitable tolling bears the burden of
establishing two elements: (1) that he has been pursuing his
rights diligently, and (2) that some extraordinary
circumstance stood in his way.” Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005).
there is no dispute that plaintiff filed her claim in federal
court more than six months after the Department of Veterans
Affairs denied Scarpinito's administrative claim.
Approximately a year passed between the March 26, 2015 denial
letter and the filing of this action on March 15, 2016.
Moreover, in failing to respond to defendant's motion,
plaintiff has failed to meet her burden of establishing that
equitable tolling is warranted here. The Court notes that in
a pre-motion letter to the Court dated June 1, 2016,
plaintiff's counsel states that he “assum[ed] . . .
that the [FTCA's six month limitation period] was tolled
from the time of Mr. Scarpinito's demise and did not
continue until someone was appointed as an
Administrator.” However, having not filed any motion
papers addressing the issue, plaintiff has not provided any
evidence suggesting that Scarpinito's death resulted in
extraordinary circumstances that required a tolling of the 6
month limitation period. Compare Genao v. United
States, 2010 U.S. Dist. LEXIS 86079, at *12-13 (E.D.N.Y.