Marino v. United States

• Decision Date: 30 December 1948
• Citation: 82 F. Supp. 190
• Parties: MARINO et al. v. UNITED STATES.
• Court: U.S. District Court — Southern District of New York

82 F. Supp. 190

MARINO et al. v. UNITED STATES.

United States District Court S. D. New York.

December 30, 1948.

Allan Taub, of New York City, for plaintiffs.

John F. X. McGohey, U. S. Atty., of New York City (Nathan Skolnik, Asst. U. S. Atty., of New York City, of Counsel), for defendant United States.

KAUFMAN, District Judge.

Defendant, the United States of America, moves to dismiss the complaint on the ground that the court lacks jurisdiction over the subject matter of the action.

The action was brought under the Federal Tort Claims Act¹ and the parties have stipulated as to the facts.

On December 21, 1946, plaintiffs Sylvio Marino and his wife Vivian Marino were riding in an automobile owned by plaintiff Manuel Peno. The car became involved in a collision with a United States Coast Guard jeep, as a result of which both personal and property damage were alleged to have been sustained by plaintiffs.

On April 22, 1947, plaintiffs submitted a joint claim to the United States Coast Guard, which claim contained three separate items aggregating $4,550 consisting of the following: Property damage $50 (Manuel Peno), personal injuries $3,000 (Vivian Marino), and loss of wife's services $1,500 (Sylvio Marino).

By letter dated October 23, 1947, plaintiffs' attorney was advised by the Chief Counsel to Coast Guard Headquarters (Treasury Department), by direction of the commandant, that each claimant was required to submit a separate claim, and the attorney's attention was directed to the fact that under the Federal Tort Claims Act the Treasury Department had no authority to settle administratively any claim in excess of $1,000.

During November of 1947 three separate claims were submitted on behalf of plaintiffs in the following amounts: Manuel Peno — $45, Vivian Marino — $3,000, and Sylvio Marino—$1,500. Thereafter the Coast Guard (Treasury Department), by letter dated January 22, 1948, again informed counsel for plaintiffs that it had no authority to consider claims over $1,000 and that "if you care to reduce these amounts to amounts within the cognizance of the Treasury Department, consideration will be given to these claims."

On January 28, 1948, plaintiffs' attorney wrote to the Coast Guard authorizing such reduction. Subsequently the Coast Guard, by letter dated April 8, 1948, wrote plaintiffs' attorney: "Reference is made to the claims against the Government of your clients Mr. and Mrs. Sylvio N. Marino, for damages alleged to have resulted from a traffic accident which occurred on December 21, 1946" and, after some discussion of the facts, concluded: "The claims of Mr. and Mrs. Marino must, therefore, be disapproved." The letter made no mention of the claim of Manuel Peno or the disposition thereof. To date there has been no notice by the federal agency as to the final disposition of the claim and the claim has not been withdrawn.

This action was commenced on July 12, 1948, by the filing of a complaint with the clerk of the court. Marino and his wife claim damages in the sum of $1,000 each and Peno claims damages in the sum of $50.

Section 403(a) of the Federal Tort Claims Act, 28 U.S.C. 921(a) now 28 U.S.C.A. § 2672, provides that the head of the Federal Agency involved has authority "to consider, ascertain, adjust, determine, and settle any claim against the United States * * * where the total amount of the claim does not exceed $1,000 * * *."

Section 420, 28 U.S.C. 942, now 28 U. S.C.A. § 2401, provides that "every claim against the United States * * * shall be forever barred, unless within one year after such claim accrued * * * it is presented in writing to the Federal Agency out of whose activities it arises, if such claim is for a sum not exceeding $1,000; or unless within one year after such claim accrued * * * an action is begun * * *. In the event that a claim for a sum not exceeding $1,000 is presented to a Federal agency as aforesaid, the time to institute a suit * * * shall be extended for a period of six months from the date of mailing of notice to the claimant by such Federal agency as to the final disposition of the claim or from the date of withdrawal of the claim from such Federal agency pursuant to section 410 of this title, if it would otherwise expire before the end of such period."

The sections quoted are not...