Byrne v. US

• Decision Date: 26 October 1992
• Docket Number: No. 92 Civ. 342 (PKL).,92 Civ. 342 (PKL).
• Parties: George BYRNE, individually and as Administrator for the Estate of Thomas Byrne, Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Southern District of New York

804 F. Supp. 577

George BYRNE, individually and as Administrator for the Estate of Thomas Byrne, Plaintiffs, v. UNITED STATES of America, Defendant.

No. 92 Civ. 342 (PKL).

United States District Court, S.D. New York.

October 26, 1992.

Martin R. Kramer, Brooklyn, N.Y., for plaintiffs.

Otto G. Obermaier, U.S. Atty. for the Southern District of New York, New York City (M. Chinta Gaston, of counsel), for defendant.

OPINION AND ORDER

LEISURE, District Judge.

Defendant seeks an order pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure dismissing the complaint in this action for lack of subject matter jurisdiction or, in the alternative, for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the following reasons, defendant's motion to dismiss the action is denied.

BACKGROUND

The essential facts relevant to this motion are undisputed. This action arises under the Federal Tort Claims Act (the "FTCA"), 28 U.S.C. §§ 1346(b), 2671-80. Plaintiff George Byrne alleges that personnel at the Veterans Administration Medical Center in Castle Point, New York, were negligent in their medical treatment of Thomas Byrne, who is now deceased. Plaintiff is the sole surviving heir of Thomas Byrne and sues individually and in his capacity as administrator of the estate of Thomas Byrne.

Thomas Byrne was a patient at the Veterans Administration Medical Center at Castle Point, New York, when he died of pneumonia on February 6, 1989. On September 13, 1990, plaintiff filed an administrative claim with the Veterans Administration, demanding recovery of 1.2 million dollars on the grounds that medical malpractice had caused the decedent's death. On the claim form, plaintiff described himself as "sole survivor and petitioner for letters of administration."

By letter dated September 18, 1990, the Veterans Administration advised plaintiff that his claim was defective because he lacked legal authority to make a claim on behalf of the decedent's estate. The letter advised plaintiff of the applicable two year statute of limitations and advised him that he should petition the New York State Surrogate's Court for letters of administration.

Plaintiff's attorney, Martin Kramer, responded to the Veterans Administration by letter dated September 27, 1990, explaining that plaintiff was in the process of filing a petition for letters of administration and that the defective claim form was "merely a precautionary effort" designed to "notify the Veterans Administration at the earliest possible time concerning the matter." He also indicated that a valid claim would be filed once plaintiff received letters of administration.

Plaintiff failed to file a claim form with proof of his designation as the decedent's personal representative prior to the lapse of the statute of limitations on February 6, 1991. On February 11, 1991, the Veterans Administration received a new claim form, dated December 25, 1990. This claim also failed to provide proof of plaintiff's status as representative of the decedent. The Veterans Administration informed plaintiff's lawyer that proof of plaintiff's capacity was a requirement for a validly presented claim. The Veterans Administration finally received plaintiff's letters of administration on March 25, 1991. Oddly, the Letters of Administration show that they were issued to plaintiff on November 15, 1990. Plaintiff commenced the instant action by serving the United States with a summons and complaint on January 15, 1992.

DISCUSSION

The FTCA effects a partial waiver of sovereign immunity by the United States with respect to the negligent acts of federal employees. 28 U.S.C. §§ 1346(b), 2671 et seq. Tort claims against the United States must be "presented in writing to the appropriate Federal agency within two years after such claim accrues" or be "forever barred." 28 U.S.C. § 2401(b). Similarly, the FTCA specifically requires that "an action shall not be instituted upon a claim against the United States under the FTCA ... unless the claimant shall have first presented the claim to the appropriate Federal agency." 28 U.S.C. § 2675. If a plaintiff fails to comply with this procedure, the federal courts are without jurisdiction to entertain the case. Wyler v. United States, 725 F.2d 156, 159 (2d Cir. 1983); Group Health, Inc. v. United States, 662 F.Supp. 753, 763 (S.D.N.Y. 1987). Because the FTCA effects a waiver of sovereign immunity, its terms must be strictly construed. Keene Corp. v. United States, 700 F.2d 836, 841 (2d Cir.1983), cert. denied, 464 U.S. 864, 104 S.Ct. 195, 78 L.Ed.2d 171 (1983). Moreover, the notice procedures cannot be waived by consent or operation of law. Id., 700 F.2d at 841. Thus, the notice provisions of the FTCA are jurisdictional in nature and cannot be satisfied by nonconforming procedures, even if the federal agency is in possession of all the information that would otherwise be provided in the claims process.

The FTCA does not define what shall be considered sufficient notice under section 2675. Regulations promulgated by the Attorney General, pursuant to the authority granted in 28 U.S.C. § 2672, purport to specify those parties that may validly present an administrative claim for wrongful death under section 2675:

A claim based on death may be presented by the executor or administrator of the decedent's estate, or by any other person legally entitled to assert such a claim in accordance with applicable state law.

28 C.F.R. § 14.3(c). Furthermore, the Code provides

a claim shall be deemed to have been presented when a Federal agency receives from a claimant, his duly authorized agent or legal representative, an executed Standard Form 95 or other written notification of an incident, accompanied by a claim for money damages in a sum certain for injury to or loss of property, personal injury, or death alleged to have occurred by reason of the incident; and the title or legal capacity of the person signing, and is accompanied by evidence of his authority to present a claim on behalf of the claimant as agent, executor, administrator, parent, guardian, or other representative.

28 C.F.R. § 14.2(a). Thus, if these regulations are properly applied to the notice provision of section 2675, plaintiff's original notice of claim was clearly deficient because it failed to present evidence of plaintiff's authority to present the claim. Assuming that the regulations do apply, plaintiff argues that dismissal is unwarranted because New York law, which this Court must apply pursuant to 28 C.F.R. § 14.3(c), tolls the statute of limitations under the facts of this case, and that plaintiff's claim is thus validly presented to this Court.

1. Parties Entitled to Initiate Claims for Wrongful Death Under New York Law

New York law provides that wrongful death actions and survival actions may properly be brought only by the decedent's personal representative, defined as the "person who has received letters to administer the estate of a decedent." N.Y. Est., Powers & Trusts § 1-2.13 (McKinney 1981 & Supp.1992). Plaintiff concedes he was not the decedent's personal representative at the time the administrative claim was initially filed. He therefore relies on the tolling provisions of New York's Civil Practice Law and Rules to validate his otherwise defective filing. The Court has determined that plaintiff cannot avail himself of the procedure provided by CPLR 205 to cure the deficiency in his claim and that New York law provides no other basis for excusing plaintiff's failure to comply with the requirements of the FTCA.

First, the Court notes that, with the possible exception of CPLR 205, New York contains no provision for "relation back" in wrongful death or survival actions. Goldberg v. Camp Mikan-Recro, 42 N.Y.2d 1029, 1029-30, 398 N.Y.S.2d 1008, 1009, 369 N.E.2d 8 (1977). Such a provision would allow a plaintiff to cure a defective filing by amending the claim to reflect the subsequent grant of letters of administration, with the amendment relating back to the original date of the filing of the claim. In Goldberg, the Court of Appeals ruled that the relation back provisions of CPLR § 203(e)¹ cannot be employed by a plaintiff seeking to amend a defective complaint to reflect his subsequent appointment as administrator. Rather, CPLR § 203(e) applies only where there is a "validly pre-existing action to which an amendment can relate back;" the action in Goldberg was not a "validly preexisting action" because plaintiff's failure to demonstrate in the initial filing that he was the decedent's personal representative was an incurable defect. Carrick v. Central General Hosp., 51 N.Y.2d 242, 248-49, 434 N.Y.S.2d 130, 133, 414 N.E.2d 632, 635 (1980).

Plaintiff contends that he can avail himself of CPLR § 205(a),² to cure the deficiency in the claim form filed on September 13, 1990. Section 205(a) provides a six month grace period following a dismissal of the complaint, during which a plaintiff may commence a new action. The grace period is available only if the prior action, although flawed, was timely commenced within the meaning of CPLR § 304. Carrick, 51 N.Y.2d at 249, 434 N.Y.S.2d at 134, 414 N.E.2d at 636. Although the Carrick court ruled that the plaintiff could properly maintain her action pursuant to CPLR § 205(a), it reaffirmed the principle that the plaintiff's status as the decedent's personal representative is a necessary element of the cause of action. 51 N.Y.2d at 250, 434 N.Y.S.2d at 134, 414 N.E.2d at 636. Carrick therefore did not change the applicable state law, which provides that a plaintiff lacking letters of administration is not a person authorized to bring a wrongful death action.

Plaintiff argues that "although the long standing New York rule requires the appointment of a representative, the absence of one does not prevent the valid commencement of an action in New York." Plaintiff, however, misreads Carrick; that case applies only where a...