Hoch v. Carter
| Court | United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York |
| Writing for the Court | HERLANDS |
| Citation | 242 F. Supp. 863 |
| Parties | Mariann HOCH, infant, by her guardian ad litem Ilona Hoch, and Ilona Hoch, Adela Kleiner, infant, by her guardian ad litem Dora Kleiner, and Dora Kleiner, Plaintiffs, v. Francis CARTER, Defendant. |
| Decision Date | 30 June 1965 |
242 F. Supp. 863
Mariann HOCH, infant, by her guardian ad litem Ilona Hoch, and Ilona Hoch, Adela Kleiner, infant, by her guardian ad litem Dora Kleiner, and Dora Kleiner, Plaintiffs,
v.
Francis CARTER, Defendant.
United States District Court S. D. New York.
June 30, 1965.
Zoltan Neumark, New York City, for plaintiffs.
Robert M. Morgenthau, U. S. Atty., for the Southern District of New York, for defendant, Edward L. Smith, Asst. U. S. Atty., of counsel.
HERLANDS, District Judge.
This is a motion by the defendant (1) for an order substituting the United States of America as sole defendant herein, pursuant to 28 U.S.C. § 2679(d), and (2) for summary judgment under Rule 56 of the Federal Rules of Civil Procedure.
The first part of defendant's motion being unopposed, the relief sought therein is hereby granted; and the United States of America is hereby substituted for Francis Carter as sole defendant in this action.
The undisputed facts, as relevant to defendant's motion for summary judgment are as follows:
Plaintiffs in this action are two infant school children and their mothers.
The alleged injuries for which recovery is sought were sustained when a school bus in which the children were passengers was forced to stop suddenly because of the alleged negligence of defendant Francis Carter in driving a United States mail truck through a stop sign and into the intersection. There was no collision. This incident occurred on November 2, 1962.
Thereafter, on October 30, 1963, the plaintiffs in this action instituted suit in the state courts of New York against the owner of the school bus in which the children were riding.
Not until November 5, 1964 — two years and three days after the accident—, at the examination before trial of the defendant school bus owner, were the plaintiffs apprised of the fact that a United States Post Office truck had been involved in the accident.
Then, according to plaintiffs' attorney's affidavit, "having discovered that the vehicle was a United States mail truck, and also that the two years statute of limitations has sic run, I commenced an action against FRANCIS CARTER, the driver of the said United States vehicle individually in the Supreme Court, Bronx County under the New York three-year statute of limitations."
The action referred to in the preceding paragraph, commenced on January 25, 1965, is the action presently before the court.
Following a certification by the Attorney General that the defendant Francis Carter was acting within the scope of his employment with the United States Post Office at the time of the incident out of which the suit arose, the action was removed from the state court to this federal district court on February 2, 1965, pursuant to the mandate of 28 U.S.C. § 2679(d), which provides:
(d) Upon a certification by the Attorney General that the defendant employee was acting within the scope of his employment at the time of the incident out of which...
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...1957); United States v. Glenn, 231 F.2d 884 (9th Cir.), cert. denied, 352 U.S. 926, 77 S.Ct. 223, 1 L.Ed.2d 161 (1956); Hoch v. Carter, 242 F.Supp. 863 The children's tort claims were filed with the government on June 27, 1977. The effect of the two-year limitation provided by § 2401(b) is ......
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Zeidler v. U.S., No. 78-1190
...352 U.S. 860 (77 S.Ct. 26, 1 L.Ed.2d 71) (1956); and Jackson v. United States, 234 F.Supp. 586 (E.D.S.C.1964). See also Hoch v. Carter, 242 F.Supp. 863, 865 (S.D.N.Y.1965); Wheeler v. Warden, No. L-1154 (D.Kan., 7/20/70, unpublished); and Anderson v. United States, No. 2372 (W.D.Mo., 6/21/6......
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Smith v. United States, Civ. A. No. C-71-138.
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Gush v. Bunker, Civ. A. No. C-72-55.
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