Moudis v. United States

EASTERN DISTRICT OF NEW YORK

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LESLIE MOUDIS,

Plaintiff, MEMORANDUM & ORDER

20-CV-05674 (JMA) (AYS)

-against-

UNITED STATES OF AMERICA,

Defendant.

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AZRACK, United States District Judge:

Presently before the Court is the motion by Defendant United States of America to dismiss

Plaintiff Leslie Moudis’ claims under the Federal Tort Claims Act (“FTCA”) for lack of

jurisdiction pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(1). (See ECF No. 74.)

Plaintiff’s claims arise from an incident in March 2019 where a United States Postal Service

(“USPS”) employee negligently drove a USPS truck into Plaintiff’s vehicle at an intersection in

Roslyn, New York. (See generally, Compl., ECF No. 1; ECF No. 57.) For the following reasons,

the Court GRANTS Defendant’s motion to dismiss.

I. BACKGROUND

A. Relevant Facts1

The Court assumes familiarity with the underlying facts of the March 27, 2019 incident,

where Plaintiff was struck by a USPS driver. (See generally, ECF No. 57.) On or about April 4,

2019, Plaintiff retained the Law Offices of Michael S. Lomonsoff to assist in filing a claim for

damages resulting from her injuries. (ECF No. 74-1, Herbst Decl. Ex. A; Pl’s Opp’n, at 6.) On

1 The facts set forth in this Opinion are drawn from Plaintiff’s Complaint (ECF No. 1 (“Compl.”)) and the

parties’ submissions in connection with Defendants’ motion to dismiss. These include the declarations of: Kimberly

A. Herbst, manager of Tort Program and Adjudication with the USPS (“Herbst Decl.,” ECF No. 74-1); Krista

Riemma, Tort Claims Specialist for the USPS (“Riemma Decl.,” ECF No. 72-2); and Kenneth J. Gorman, special

and appellate counsel to the Law Offices of Michael Lamonsoff, PLLC (“Gorman Decl.,” ECF No. 74-6). For ease

of reference, the Court refers to Defendants’ brief in support of their motion to dismiss as “Defs.’ Br.” (ECF No. 74-

3), to Plaintiff’s opposition brief as “Pl.’s Opp.” (ECF No. 74-13), and to Defendants’ reply brief as “Defs.’ Reply

(“SF-95.2”) The SF-95 describes the incident as occurring on March 27, 2019, at 10:32AM, and

states that Plaintiff “was traveling straight through the intersection with a green light, when a motor

vehicle, owned by the US Postal service and operated by Robert West, made a left turn into

claimant’s vehicle. As a result, claimant suffered personal injuries.” (Herbst Decl., Ex. B.) The

SF-95 further states that Plaintiff “suffered injuries to her head, neck, back, shoulders, knees, and

hips,” and claims damages of $1 million. (Id.) Plaintiff’s counsel sent this SF-95 with a cover

letter to “Accident/Claims Investigator, Long Island District, PO Box 8304, Melville, New York

11760-9331.” (Id., Ex. A; see also Riemma Decl. ¶ 8.) Also enclosed were “two (2) Copies of

Ms. Leslie Moudis claim for Injury along with the retainer agreement executed by Ms. Moudis,

the police report, and two photographs depicting the site of the occurrence.” (Herbst Decl., Exs.

A-B; Gorman Decl. ¶ 5.) This mailing did not include any medical records pursuant to Plaintiff’s

claimed injuries. (Herbst Decl. ¶ 9; Riemma Decl. ¶ 9.) USPS received this mailing on or about

January 16, 2020. (Id.)

By letter dated March 10, 2020, the National Tort Center, an arm of the Law Department

of USPS, acknowledged receipt of the mailing. (Herbst Decl. ¶ 11; Herbst Decl., Ex. C.) In that

letter, the USPS requested medical records and itemized bills from Plaintiff. (Id.) The letter states:

Before this claim can be considered for adjudication it must be supported by

competent evidence as defined with the SF95 claim form. Accordingly, please

provide me with your client’s medical records and itemized bills for treatment

received in connection with the above-referenced incident as well as support for

any claimed property damage and/or wage loss. (See the back side of the SF 95

2 See 28 C.F.R. § 14.2 (“For purposes of the provisions of 28 U.S.C. 2401(b), 2672, and 2675, 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.”)

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evaluate the claim and will have no recourse but to issue a denial.

(Id.) Plaintiff did not send any medical or billing records in response to the March 10, 2020 letter.

(Herbst Decl. at ¶ 12; see Riemma Decl. at ¶ 10.) On September 25, 2020, USPS left a voicemail

message with Plaintiff’s counsel, once again requesting Plaintiff’s medical and billing records.

(Herbst Decl. at ¶ 13.) Defendant claims that USPS “did not receive any medical or billing records

from Plaintiff or her counsel until December 7, 2020.” (Def’s Br’ at 11; Herbst Decl. at ¶¶ 15-16;

Riemma Decl. at ¶¶ 10-11.)

Plaintiff’s counsel asserts that, in response to the September 25, 2020 voicemail, on

October 2, 2020, he mailed a letter and attached medical records to USPS Tort Claims

Investigation. (Gorman Decl. ¶ 12, Ex. 1.) Plaintiff also attaches an affidavit from Irina

Shterenberg, the litigation paralegal assigned to Plaintiff’s case, who states that on October 2,

2020, she mailed the letter and medical records United States Postal Service Tort Claims

Investigation, Long Island District, P.O. Box 8304, Melville, NY 11760, Attn: Krista Riemma.

(Gorman Decl. ¶ 13; Gorman Decl., Ex. 2 (“Shterenberg Affidavit”) ¶¶ 2-3.) Additionally,

Plaintiff’s counsel provides a log entry from Trialworks, “the legal practice management software

used by our office,” which contains an entry titled “Insurance – Letter Enclosing Specials Package

– Updated 7.14.20,” purportedly referring to the mailing of the letter and attached medical records.

(Gorman Decl., Ex. 4.)

B. Procedural History

On November 20, 2020, Plaintiff filed her initial Complaint. (ECF No. 1.) At the

conclusion of discovery, the parties proposed holding a bifurcated bench trial before the

undersigned. (See Minute Entry for Jan. 12, 2024 Conference, ECF No. 44.) On January 16, 2024,

the undersigned held a bench trial to determine liability for the March 27, 2019 incident. (See

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Findings of Fact and Conclusions of Law pursuant to the bench trial. (ECF No. 57.) In relevant

part, the Court concluded that USPS driver Robert West’s “negligence served as the sole proximate

cause of the Accident and Defendant is liable for any resulting damages proven at the next portion

of the bench trial.” (Id. at 14.) On August 9, 2024, Defendant for the first time moved for a pre

motion conference to dismiss the Complaint for lack of jurisdiction. (ECF No. 63.) On August

16, 2024, Plaintiff filed her response in opposition. (ECF No. 65.) The Court then waived its pre-

motion conference requirement and directed the parties to submit a joint briefing schedule. (See

August 19, 2024 Order.) On January 4, 2025, Defendant filed its fully briefed motion to dismiss.

(ECF No. 74.)

II. LEGAL STANDARDS

On a motion to dismiss pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction,

“[t]he party asserting subject matter jurisdiction carries the burden of establishing, by a

preponderance of the evidence, that jurisdiction exists.” Branch of Citibank, N.A. v. De Nevares,

74 F.4th 8, 15 (2d Cir. 2023). A court must dismiss a case for lack of subject matter jurisdiction

when it “lacks the statutory or constitutional power to adjudicate it.” Makarova v. United States,

201 F.3d 110, 113 (2d Cir. 2000). “Failure of subject matter jurisdiction, of course, is not waivable

and may be raised at any time by a party or by the court sua sponte.” Oscar Gruss & Son, Inc. v.

Hollander, 337 F.3d 186, 193 (2d Cir. 2003) (citing Lyndonville Sav. Bank & Trust Co. v. Lussier,

211 F.3d 697, 700 (2d Cir. 2000)).

Summary judgment is appropriate “if the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P.

56(a). Summary judgment should be granted “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

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of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). In other words, “summary

judgment is appropriate only where the record taken as a whole could not lead a rational trier of

fact to find for the non-movant.” Borley v. United States, 22 F.4th 75, 78 (2d Cir. 2021) (applying

this standard to an FTCA claim). The moving party has the burden of demonstrating that there is

no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “Where the

moving party demonstrates the absence of a genuine issue of material fact, the opposing party must

come forward with specific evidence demonstrating the existence of a genuine dispute of material

fact.” Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011). In its analysis, the Court must

“construe the evidence in the light most favorable to the non-moving party and draw all reasonable

inferences in its favor.” ING Bank N.V. v. M/V Temara, 892 F.3d 511, 518 (2d Cir. 2018).

Ultimately, “[t]he role of the district court on summary judgment is ‘not to resolve disputed issues

of fact but to assess whether there are any factual issues to be tried.’” McKinney, 49 F.4th at 738

(quoting Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir. 2011)).

Rule 12(d) authorizes courts to convert motions to dismiss for failure to state a claim into

motions for summary judgment if “matters outside the pleadings are presented to and not excluded

by the court.” FED. R. CIV. P. 12(d). The rule requires that “[a]ll parties must be given a reasonable

opportunity to present all the material that is pertinent to the motion.” Id. This Circuit explains

that Rule 12(d), therefore, gives courts “only two options” when they are presented with

documents outside the complaint on a motion to dismiss: “(1) the court may exclude the additional

material and decide the motion on the complaint alone or (2) it may convert the motion to one for

summary judgment under Fed. R. Civ. P. 56 and afford all parties the opportunity to present

supporting material.” Palin v. N.Y. Times Co., 940 F.3d 804, 810–11 (2d Cir. 2019). “[T]he

conversion of a Rule 12(b)(6) motion into one for summary judgment is governed by principles of

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should reasonably have recognized the possibility that the motion might be converted into one for

summary judgment.” Id. at 811–12.

III. DISCUSSION

A. Defendants Are Entitled to Summary Judgment Due to Plaintiff’s Failure to

Adequately Present Her Claim

The sole issue before the Court is whether Plaintiff complied with the FTCA’s presentment

requirement by providing sufficient information about her claim to USPS prior to filing suit. For

the following reasons, the Court concludes that no rational trier of fact could find that Plaintiff

satisfied this requirement. Thus, the case must be dismissed for lack of subject matter jurisdiction.

1. The Court Treats Defendant’s Motion as a Summary Judgment Motion

As a threshold matter, Defendant moves to dismiss Plaintiff’s claims against the United

States for lack of subject matter jurisdiction under Rule 12(b)(1), or alternatively, for summary

judgment under Rule 56. (See Def’s Br. at 5-10.) Because both parties have presented “matters

outside the pleadings” and the Court cannot exclude them in resolving the motion, the Court must

treat the motion as one for summary judgment. See Fed. R. Civ. P. 12(d); e.g., Joseph v. United

States, No. 22-CV-07007, 2024 WL 360663, at *3 (E.D.N.Y. Jan. 31, 2024) (treating motion for

dismissal as a motion for summary judgment with respect to FTCA claims involving USPS); Burke

v. USPS, No. 19-cv-2539, 2020 WL 9816003, at *3 & n.3 (E.D.N.Y. Sept. 28, 2020) (same).

“Treatment of the motion under Rule 56 is appropriate here because Plaintiff[] had both ‘sufficient

notice’ and ‘an opportunity to respond.’” Joseph, 2024 WL 360663, at *3 (quoting Hernandez v.

Coffey, 582 F.3d 303, 307 (2d Cir. 2009)). Here, Plaintiff does not dispute that the motion should

be treated as a motion for summary judgment, and “most importantly, Plaintiff[] presented

additional materials outside of the pleadings.” Id. at 3; (See generally, Gorman Decl.; Pl’s Opp’n.)

Thus, the Court treats Defendant’s motion as a motion for summary judgment.

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1. FTCA Presentment Requirement

A claimant may not sue for damages under the FTCA “unless 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.” 28 U.S.C. § 2675(a). The claim

must be presented “in writing to the appropriate Federal agency within two years after such claim

accrues.” Id. § 2401(b). With respect to the FTCA,

Congress expressly waived sovereign immunity by stating that “[t]he United States

shall be liable, respecting the provisions of this title relating to tort claims, in the

same manner and to the same extent as a private individual under like

circumstances.” 28 U.S.C. § 2674; see Cooke v. United States, 918 F.3d at 81. But

the waiver is subject to a jurisdictional prerequisite: a tort action “shall not be

instituted ... against the United States for money damages ... unless the claimant

shall have first presented the claim to the appropriate Federal agency” for its review.

28 U.S.C. § 2675(a) (emphasis added). Further, an FTCA action “shall not be

instituted for any sum in excess of the amount of the claim presented to the federal

agency.” Id. § 2675(b). Such presentment must be made within two years after a

tort claim accrues. See id. § 2401(b).

Collins v. United States, 996 F.3d 102, 109 (2d Cir. 2021). Therefore, the presentment requirement

is “jurisdictional and thus cannot be waived,” and must be satisfied prior to filing suit. See

Celestine v. Mount Vernon Neighborhood Health Center, 403 F.3d 76, 82 (2d Cir. 2005) (citing

McNeil v. United States, 508 U.S. 106, 111 (1993)); see also Phillips v. U.S. Postal Serv., No. 23-

819, 2024 WL 1613897, at *2 (2d Cir. Apr. 15, 2024) (“The Supreme Court made clear in McNeil

that if a plaintiff files an FTCA claim in federal court prematurely -- before the administrative

process has been exhausted -- the claim should be dismissed, even if it might become ripe at a later

date during the pendency of the action.”) (summary order). Additionally, because the FTCA is a

limited waiver of sovereign immunity, the Court “must strictly construe matters concerning the

waiver of sovereign immunity in favor of the government.” Cooke v. United States, 918 F.3d 77,

80 (2d Cir. 2019) (citing United States v. Sherwood, 312 U.S. 584, 590 (1941)).

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agency with sufficient notice of his claim to permit the agency to conduct an inquiry into the merits

of his demand for compensation.” Collins, 996 F.3d 102 at 109; see also Romulus v. United States,

160 F.3d 131, 132 (2d Cir. 1998) (hereinafter “Romulus II”) (presentment of a claim requires “a

written notice of the claim which provides enough information to enable an agency to investigate

and ascertain the strength of a claim.”) To satisfy the presentment requirement, then, a Plaintiff

must provide to the agency “detailed information, [more] than the assertion of unspecified injuries

to a claimant's head, body, and extremities.” Id. at 112.

2. Analysis

Defendant asserts that Plaintiff’s SF-95 is insufficient to satisfy the presentment

requirement of the FTCA. (See generally, Def’s Br.) Plaintiff’s SF-95 “contains only the

following vague description of her alleged injuries: ‘Claimant suffered injuries to her head, neck,

back, shoulders, knees, and hips.’” (Def’s Br. at 22) (citing Herbst Decl., Ex. B.) That ambiguous

description does not provide the USPS with enough information to “conduct an inquiry into the

merits of his demand for compensation.” Collins, 996 F.3d 102 at 109. Plaintiff does not dispute

this conclusion. Nor could she. Numerous courts in this Circuit have held that similarly vague

descriptions do not satisfy the FTCA’s presentment requirement. See, e.g., Beretin v. United

States, No. 22CV7570, 2024 WL 707282, at *2 (E.D.N.Y. Feb. 21, 2024) (dismissing claims for

failure to satisfy the presentment requirement where “Plaintiff's SF-95 contains only a vague and

conclusory description of her alleged injuries: that plaintiff sustained severe permanent personal

injuries, the full extent of which are not presently known, but include, upon information and belief,

severe and permanent injuries to her both ankles, both shoulders, right knee, neck and back.”)

(internal quotations and citation omitted); Harrison v. United States, 707 F. Supp. 3d 245, 249

(E.D.N.Y. 2023) (dismissing for failure to satisfy the presentment requirement where SF-95 stated

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right knee.”); Ruffin v. United States, No. 20-CV-04128, 2021 WL 4408039, at *3 (E.D.N.Y. Sept.

27, 2021) (dismissing action based on insufficient presentment where the SF-95 stated “[m]y

injuries include, but are not necessarily limited to, [right] side neck [and] shoulder; mid[dle] [and]

lower back.”); Guzman v. United States Postal Serv., No. 21CV4415L, 2022 WL 17169529, at *1

(S.D.N.Y. Nov. 17, 2022), report and recommendation adopted, No. 21-CV-4415, 2022 WL

17417527 (S.D.N.Y. Dec. 5, 2022) (dismissing for insufficient presentment where Plaintiff merely

“described his injuries as ‘serious injuries to his head, neck, shoulders, arms, hands and back,’ but

he did not provide any detail and did not submit any supporting documentation regarding the extent

of treatment, medical bills, and/or hospital stays.”) (internal citation omitted). Thus, Plaintiff’s

SF-95 alone is insufficient to meet the presentment requirement of the FTCA.

In response to this argument, Plaintiff claims that the SF-95 was not the only method of

presentment made to the USPS. Rather, Plaintiff asserts that on October 2, 2020, she mailed

additional medical records, upon request, to the USPS tort claims department prior to the

commencement of this action. (See Gorman Decl. ¶ 12, Ex. 1.) Defendants, however, maintain

that they did not receive medical records until December 7, 2020, about two weeks after Plaintiff

filed suit on November 20, 2020 (see ECF No. 1), and therefore could not properly evaluate the

worth of Plaintiff’s claims prior to suit. (See Def’s Br’ at 11; Herbst Decl. at ¶¶ 15-16; Riemma

Decl. at ¶¶ 10-11.) In connection with Plaintiff’s opposition, she submits declarations and

affidavits from her counsel and litigation paralegal, a cover letter dated October 2, 2020, with

attached medical exhibits, and a log entry from Trialworks. (See supra part I.A.) The Court finds,

however, that even accepting the veracity of these supporting documents, Plaintiff fails to meet

her burden to demonstrate sufficient presentment.

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demonstrate that Defendant received the medical records, or whether it is sufficient for Plaintiff to

rely on the common-law presumption that a piece of mail, properly addressed and mailed in

accordance with regular office procedures, has been received by the addressee, the so-called

“mailbox rule.” (See Pl’s Opp’n at 11-13; Def’s Reply Br. at 5-10.) With respect to the FTCA,

the rule in this Circuit is clear:

the mailbox rule is inapplicable to claims brought under the FTCA, and that

therefore the mere mailing of a notice of claim does not satisfy the FTCA's

presentment requirement. The statute and corresponding regulation make clear that

actual receipt is required, and applying the mailbox rule to claims under the FTCA

would be inconsistent with the principle that waivers of sovereign immunity must

be strictly construed and limited in scope in favor of the sovereign.

Cooke, 918 F.3d 77 at 82 (emphasis added).

Even accepting the authenticity of Plaintiff’s supporting documents and drawing all

inferences in her favor, then, the most Plaintiff demonstrates is that the medical records were

mailed on October 2, 2020. This showing is insufficient to meet Plaintiff’s burden to demonstrate

receipt of the medical records. See, e.g., Feng Liu v. DiCarlo, No. 19-CV-8031, 2021 WL 22738,

at *3 (S.D.N.Y. Jan. 4, 2021) (dismissing for lack of presentment where “Plaintiff has alleged that

he mailed the Standard Form 95 . . . However, Plaintiff has not shown that the appropriate Federal

Agency received the form. Further, in support of its motion to dismiss, the Government submitted

an affidavit by Elijah Jenkins, a Supervisory Technical Support Specialist within the Department

of Justice, stating . . . that he caused the appropriate Records Systems within the Civil Division of

the Department to be searched and there is no record of an administrative claim being presented

by Feng ‘Kevin’ Liu.”’) (internal citations and quotations omitted); Young v. United States, No.

12-cv-2342, 2014 WL 1153911, at *8 (E.D.N.Y. Mar. 20, 2014) (holding that presentment

requirement was not satisfied where a plaintiff “asserted in his deposition that he mailed” the notice

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Jaghama v. United States, No. 11-cv-5826, 2013 WL 508497, at *2 (E.D.N.Y. Feb. 11, 2013)

(rejecting argument that presentment was satisfied where a plaintiff “provide[d] only a copy of the

SF-95 ... along with a representation in his brief that the form was mailed” on a specified date.);

c.f. Shore v. United States, No. 23-cv-3681, 2024 WL 4350692 at * (E.D.N.Y. Sept. 30, 2024)

(denying motion to dismiss where Plaintiff “provided documentation that [records] were delivered

by USPS priority mail inside the DOT's headquarters. Specifically, Plaintiffs attached to their

opposition brief the tracking information for each of the SF-95s, which shows that the three

packages were delivered at the “FRONT DESK/RECEPTION/MAIL ROOM” at DOT on October

21, 2022.”) (emphasis in original). Therefore, Plaintiff is not entitled to the mailbox rule

presumption that the medical records were received by USPS and thus cannot meet her burden to

demonstrate that Defendant received the records.

Because Plaintiff does not satisfy her burden to demonstrate Defendant received the

medical records prior to the lawsuit, Plaintiff’s presentment of her claim is limited to the original

SF-95. As stated above, the descriptions on that form alone are insufficient to meet the presentment

requirement. (See supra at 8-9.) Thus, Plaintiff does not meet the presentment requirement, and

her claims must be dismissed for lack of jurisdiction.

IV. CONCLUSION

For the foregoing reasons, Defendant’s motion for summary judgment is GRANTED and

this case is DISMISSED.

SO ORDERED.

Dated: April 11, 2025

Central Islip, New York

(/s/ JMA)

JOAN M. AZRACK

UNITED STATES DISTRICT JUDGE

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