Petition for Writ of Certiorari — In re Morris

Supreme Court, U.S.

FILED

9714 29 DEC 3 4 1997

ee NOE RT NO:

In The

Supreme Court of the United States

October Term, 1997

»

ATHANASIOS RODITIS and CATHY RODITIS

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

ae en

PETITION FOR WRIT OF CERTIORARI

a Too

GOLDMAN & Rio, Esqs.

Attorneys for Plaintiffs-Appellants

386 Park Avenue South, Suite 1101

New York, N.Y. 10016

TEL: (212) 545-9011

FAX: (212) 545-9016

Counsel of Record - MICHAEL L. GOLDMAN

a

QUESTIONS PRESENTED FOR REVIEW

I. It is not disputed that on March 25, 1992 Petitioner,

plaintiff Athanasios Roditis, slipped and fell and severely hurt

himself on icy, slippery steps of a post office at Great Neck,

New York. Should the trial court have granted Respondent’s

cross-motion for summary judgment dismissing this action

supported solely by statements from attorneys with no personal

knowledge of the facts plus excerpts from contradictory and

confusing deposition testimony from another individual, a

caretaker/janitor who had no personal knowledge of the facts?

II. In compliance with the Federal Tort Claims Act, a

notice of claim form for both Mr. Roditis and for Cathy Roditis,

his wife, was filed. The form was signed only by Mr. Roditis.

The form specifically permits an agent to sign a claim form on

another’s behalf. Should the trial court have granted Petitioners’

motion dismissing Respondent’s “Second Defense” that

Petitioner Cathy Roditis, due to her failure to sign the claim

form, failed to exhaust her administrative remedies even though

the form was signed by her husband; her claim was noted on the

form; the instructions on the form indicate that an agent may

sign on behalf of a claimant; and, as a matter of law, the form

contained information sufficient to give notice of the

occurrence?

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ....... i

TABLE OF AUTHORITIES .............. ili

CITATIONS TO OFFICIAL AND UNOFFICIAL 1

JUDGMENTS AND ORDERS

BASIS FOR JURISDICTION ............. l

STATEMENT OF CASE ................ ]

ARGUMENT -ISSUBT ... 2... ....00.- 4

ARGUMENT -ISSUEII .............. 13

GMI sv nv csuuvecacvshwenee 18

APPENDIX

iii

TABLE OF AUTHORITIES

CASES PAGE(S)

Adams v. U.S. 615F.2d284 ........ 16

Adickes v. S.H. Kress, 398 U.S. 144... 1]

Borgren v. U.S,,723 F. Supp. 581 ........ 13

Celotex Corp, v, Catrett, 477U.S.317 .... 1]

Erxlebenv. U.S.,668F.2d268 ......._. 16

Frantzv,U,S., 29F.2d1435......... 16

| GAF Corp. US., 818 F.2d 901,191 ....._. 15

Hanlon v. U.S, 134,F.R.D.42. .....__ 14

Hilburn v, U.S, 789 F. Supp. 338. ....... 14

Berea yy as 12

Kokara v. US., 750 F. Supp.542 ...... 15,16

Lopezv. US. 758F.2d806 ......._.. 15,16

Pignataro v. Coen v. ConEdv. Webcoy. .. 12

City of New York, 150 A.D.2d 222:

514 NYS2d 392

Quaratino v, Tiffany & Co, 71F.3d58 13

iv

Santiago-Ramirez v. Sec’y of the Dept. of .. 16

Defense, 984 F.2d 16

Transco Lsg, Corp, v. U,S., 896 F.2d 1435 . 16

US. v. Diebold, 369 U.S. 654 ........... 1]

STATUTES CITED

RS 5:5 Wake Rie waa hw CR 1, 2, 4, 11, 14

eee Tee Cua Pee cc e wv auseecoaters 12

OTHER AUTHORITIES

103 N.Y. Jur 2d 389, 394,395 .......... 12

CITATIONS TO OFFICIAL AND UNOFFICIAL JUDGMENTS

AND ORDERS

Petitioners seek review of the Judgment of the United

Stated Court of Appeals for the second circuit dated August 6,

1997, docket number 96-6231; and the judgment (by visiting

judge Manuel Real) of the District Court for the Eastern District

of New York dated July 2, 1996, docket number 93 CV 4480.

A petition for rehearing was denied on October 2, 1997. Copies

of the judgments and opinions are annexed hereto in the

appendix.

BASIS FOR JURISDICTION OF THIS COURT

This petition involves an appeal from the second

circuit Court of Appeals over which this Court has jurisdiction.

Jurisdiction was placed in the court of first instance because the

United States of America is the defendant and the action arose

under the Federal Tort Claims Act (FTCA).

STATEMENT OF THE CASE

This is an action for damages arising out of a serious

personal injury suffered by Petitioner, plaintiff Athanasios

Roditis. On March 25, 1992 Roditis slipped and fell on slippery,

J BEST AVAILABLE COPY

2 =

icy steps at a post office in Great Neck, N.Y. He suffered a

herniated disk. Petitioner Cathy Roditis is the wife of Petitioner

Athanasios Roditis and, as plaintiff, set forth causes of action

for loss of consortium, support and companionship.

Roditis had just parked his vehicle in a parking lot

behind the aforesaid post office. He left the parking lot through

a westward facing walk-way that led to a ianding which was

located approximately behind the left-most 1/3 of the post

office. The landing was sandwiched between the rear of the post

office and the parking lot. To the right of the landing was a

stairway where the accident occurred. The stairway is a 3-step

stairway leading down to a sidewalk that heads north to the

public sidewalk which borders the public street. According to

Respondent’s witness, this post office stairway and sidewalk

which led to the street was open to members of the public on

the day of the occurrence and was not under construction. This

stairway is where the accident occurred. Forward of the landing

was another longer stairway down to a door that led to a lower

level of the post office. This longer stairway was not barricaded

or otherwise inaccessible. To the left of the landing was a

stairway up to a doorway that was barricaded. Ostensibly,

construction was taking place behind the barricade.

As a result of his injury Mr. Roditis has not been

employed and the Roditis family was forced to surrender their

home and move in with Mr. Roditis’ family. They are currently

on welfare.

After a timely filed Claim for Damage form was

presented under the Federal Tort Claims act ("FTCA" hereafter)

on behalf of both Petitioners and no adjustment of the claim was

undertaken, an action was instituted in the district court. In their

3

answer, the defendant-respondent included a defense labelled

“Second Defense” which alleged that Petitioner Cathy Roditis

failed to exhaust administrative remedies due to her failure to

sign the claim form. The claim form was signed by her husband;

her name was printed thereon; her claim was noted on the form;

and the instructions on the form indicate that an agent may sign

on behalf of a claimant.

After the completion of discovery, Petitioners moved

to strike the second defense regarding the failure to exhaust

administrative remedies and Respondent cross-moved for

summary judgment dismissing the action on the grounds that the

Respondent had relinquished control of the place of occurrence

to a construction company, an independent contractor. The

Respondent’s motion was supported by affirmations of

attorneys who had no personal knowledge of the facts and a

copy of the deposition testimony of Mr. Edgar Penny, a

maintenance employee who also had no personal knowledge of

the facts.

The motion for summary judgment was opposed by a

sworn affidavit of Athanasios Roditis in which he stated that

there was no construction taking place in the area where he fell

and that there were no signs, notifications or other warning

devices stating that the place of occurrence was off-limits to

anyone. He also stated that the place of the occurrence was

open to all and that access to the site was unimpeded.

In his deposition, Mr. Penny, the Respondent’s

maintenance employee, discussed several locations on the post

office premises. Some of the locations discussed were under the

control of the construction company and some were not. When

discussing the specific site of the occurrence Mr. Penny clearly

4

and unequivocally stated that the site was open to the public on

the day of the occurrence and available for the public’s use.

The action was reassigned from Judge Allyn Ross to

visiting Judge Manuel Real. Petitioners’ motion. was denied and

Respondent’s motion was granted.

ARGUMENT

Issue I

Petitioners do not dispute the concept that under the

Federal Torts Liability Claims Act (FTCA) the United States

bears no liability under Federal, State or other law for the

tortious acts of its contractors. What Petitioners are attempting

to communicate is that the Petitioner had his accident on a

portion of the Respondent’s premises which was not under the

control of a contractor. If this is the case then, under local law,

the Respondent may bear liability for the occurrence herein. At

the very least, the issue is in dispute and warrants a

trial.

Edgar Penny, Respondent’s only deposition witness,

was not an eyewitness to the accident. In fact, he testified that

he first heard about the accident when he was contacted by the

U.S. Attorney’s office about a month-and-a-half before his

deposition which was 3 1/2 years after the accident. He testified

that he first saw the Respondent’s three Polaroid photos of the

site about a week before his deposition. The undersigned is the

only attorney still connected with this case who was present at

the Penny deposition.

5

What we have here is a classic case of “apples and

oranges’. In his deposition, Penny spoke of two different areas -

one area which includes the site of the occurrence and which

was not under construction and a second site which was behind

a barricade and probably had construction activity.

The error in the Court of Appeals decision is evident

in their finding that Penny, on at least five occasions stated that

the area in which plaintiff fell was off limits. Penny said nothing

of the sort. Penny never saw the accident and never said that

plaintiff fell in one place or another. Penny discussed different

areas, some of which were off-limits due to construction and

some that were not. The fact is that plaintiff fell ina area that

was not off limits and was not included in the area that Penny

said was off limits. In fact, in the only part of the deposition

where Penny discusses the site of the occurrence Penny testified

clearly and unequivocally that there was no construction taking

place there; and that the area was open to the public for bulk

mailing on the day of the accident. Furthermore, when directly

questioned as to whether this was the case at the time of the

accident, March 25, 1992, Penny said “sure”.

What follows is the verbatim exchange between Mr.

Penny and the Petitioners’ counsel regarding the precise area of

the occurrence. When asked if there was a customer entrance in

the back of the post office Penny stated the following:

A. I assume if people want to come in for some

reason, for bulk mailing, they could use the back

entrance, yes, but not usually.

Defendant’s Attorney. (to plaintiffs’ attorney) Is

there a time frame you are talking about here?

Plaintiffs’ Attorney. At any time.

A. (By Penny) At any time, it’s the same thing.

Q. Was that the case back in March of ‘92.

A. Sure.

6

Q. Was there any construction taking place in the area

forward from this doorway to the sidewalk along this

path?

A. No.

With further regard to the loading docks in the back

which were open to the public, Mr. Penny was asked “Were

those loading docks in use around March 25, 1992 to load and

unload mail?” Mr. Penny’s response was “I would assume so...

yes.” How could this be any clearer? As such, Roditis, by

Penny’s admission, fell in an area which was not only owned

and operated by the Respondent and but which was open to the

public for the public’s use on the day of the occurrence! This

means that the area in question was under the control of the

Respondent and not any contractor and was being used for the

Respondent’s benefit in furthering their business interests..

Furthermore, when asked if the site of the occurrence

was “blocked or open” on March 25, 1992, Penny said it was

“open”. When asked if there were signs indicating that the area

in question was off-limits Penny said there weren’t any. When

asked if the area in question ‘vas in any way cordoned off,

Penny said “it wasn’t condoned off that I know of, no.”

The further fact is that Penny himself that he himself

was going to clean snow from the area in question until some

supervisor negligently told him to only clean the perimeter of

the building. Petitioners submit that it was negligence for Penny

not to clean the area in question; that, if the supervisor did

indeed tell Penny not to clean a public area, that it was

negligence for the supervisor to have given Penny this

erroneous instruction; and if the supervisor, when speaking to

7

Penny, did not tell Penny to refrain from cleaning this public

area that it was negligent for Penny to misconstrue what the

supervisor told him.

At the time of the accident the construction project

had been underway for several months. Mr. Penny had been at

this particular post office for about 11 years and was, in fact,

the head of its maintenance department. Nevertheless, he

indicated that he was about to clean the area in question and

came in an hour early that day to perform his snow removal

duties until told by one “Bobby G.” not to do so. If Penny, until

stopped by “Bobby G.”, thought that the post office was

responsible for the area in question how was a member of the

general public, like Mr. Roditis, supposed to think otherwise?

Furthermore, if the place of the occurrence was under the

control of the contractors as the Respondent asserts, it was

negligence for the Respondent, who is not an absentee property

owner, to fail to insist that their contractor remedy the situation.

To illustrate that Penny was talking about two

different areas in his deposition testimony the Court will note

that when Penny was asked whose job it was to remove snow

on the day in question, Mr. Penny said “That area was not

removed. That was off-limits to all postal employees, including

myself, because of contract work. It had a barrier there which

nobody could get through, a platform.” Ignoring the fact that

Penny’s answer was wholly unresponsive to the question, the

area referred to by Penny as “that area” was not the area where

Roditis fell. Penny was talking about a platform that was behind

a barricade which may have been in the construction area. In

fact the barricade he is talking about is a plywood barricade that

was nailed to a doorway, completely covering it. The barricade

is visible in the doorway at the end of a walkway in a photo

taken by Respondent. The platform is behind the barricade and

was a part of the construction area. Furthermore, Penny

alternately described the construction area as a “roped-off’ area

and as an off-limits area beyond a wooden barrier. Roditis never

ventured behind any barricades or roped-off area. Roditis did

not fall in the area described by Penny in this portion of his

deposition there nor did he attempt to go into that area. If he

had we would have no dispute with the outcome of this action

and we would quietly go away.

It is not disputed that Roditis never entered upon any

area that was roped off, barricaded or otherwise restricted to

members of the public. He used only those areas that were open

to the general public as of the day of the occurrence. Even

Respondent’s own photos failed to reveal any roped off area.

We also have serious problems with the Court of

Appeals reasoning. They stated:

That the stairs themselves were not under

construction, or immediately surrounded by active

construction work, is not dispositive. The span of a

construction site is not limited to the precise area

where the construction is taking place; it includes

adjacent areas as well. Moreover, the absence of

barricades or warning signs does not establish that the

area was outside the control of the independent

contractor. (Appendix, page A-7, last paragraph, next-

to-last line.)

9

First of all, while the span of a construction site may

not be limited to the precise area where construction is taking

place there is no absolute measurement that can be used to

make this determination. Is it 10 feet? 25 feet? 100 feet? More?

Less? This all depends upon the particular circumstances which

a trial should determine. In any event, in our case, we would

argue that the construction site began, more or less, at the place

where the premises was cordoned off.

Furthermore, while it may be true that the absence of

barricades does not dispositively establish that an area is outside

the control of the independent contractor the absence of the

barricades certainly does not indicate the it is within the control

of an independent contractor.

In addition, we respectfully take exception with the

Second Circuit’s discussion in regard to photographs. The

Second Circuit said:

... plaintiffs’ own photographs indicate that the rear

entrance of the post office, which is immediately

adjacent to the spot where Athanasios fell, was

boarded up - an unmistakable indication that the area

where the accident occurred was within the zone of

construction. (Appendix, page A-8, first full

paragraph, ninth line.)

Firstly, it is not disputed that the photographs referred

two are three (3) Polaroid instant photos taken by the

Respondent not the Petitioner. Secondly, only one of the three

photos shows the site of the occurrence. A boarded up doorway

is visible in the background. Plaintiff never ventured beyond the

10

areas that were open to the public nor did he attempt to breach

the boarded up doorway. We would say that a boarded up

doorway indicates construction activity behind the boarded

area, not in front of it.

With regard to the proceedings in the district court,

what happened there was, in our view, with all respect, a

matter of expediency. A visiting judge was brought in to help

move the calendar. On or about May 20, 1996 Petitioners

served its motion, returnable on June 3, 1996, to dismiss the

Respondent’s second defense. At the Respondent’s request,

Petitioners consented to an adjournment to July 2, 1996. In the

interim, the assistant U.S. attorney that had been assigned to

this case was replaced and this action was reassigned from the

judge to whom it was previously assigned to the visiting judge.

A so-called “status/settlement” conference was previously

scheduled for Thursday, June 20, 1996.

On or about June 19, 1996 we were served with the

Respondent’s response to our motion plus a cross-motion to

dismiss based on the Respondent’s “first defense” of lack of

control. The status/settlement conference was attended by the

incoming assistant United States attorney, another person from

her office, the undersigned and another attorney from the office

of the undersigned. The status/settlement conference was

presided over by the visiting judge, not the assigned judge.

Petitioner spoke first. After discussing the facts we mentioned

that motions were pending and described their objectives. On

the spot, without having read one document or viewed one

exhibit the visiting judge indicated that he was inclined to grant

the motion to dismiss. Despite the fact that the rules, (Rule

56(c)) require 10-days notice and the fact that the previously

OO

a Wii initial

set date for the hearing of this motion and cross-motion was

July 2, 1996, the visiting judge gave us until Monday June 24,

1996 at 4:30 p.m. to respond to the cross-motion to dismiss and

produce authorities to persuade him not dismiss the action.

On June 24, 1996 we appeared with our papers,

including authorities, at the appointed time and place. We were

informed that the judge left early and that we would now be

expected to appear at 8:30 a.m. on June 25, 1996, which is a

half-hour before the building opens and one hour before |

business customarily commences in the district. The necessary

moving papers plus accompanying memorandums were

submitted to the visiting judge. Each side had about a minute or

two to verbally support the arguments in their papers. The court

immediately rendered its decision dismissing this case without

consulting papers, authorities, exhibits or anything, a process

referred to by this Court in the case Celotex Corp. v. Catrett,

477 U.S. 317, as “railroaded”.

On a motion for summary judgment, the inferences to

be drawn from the underlying facts contained in (the moving

party's) materials must be viewed in the light most favorable to

the party opposing the motion. Adickes v. S.H. Kress, 398 U.S.

144 citing United States v. Diebold, Inc., 369 U.S. 654.

Petitioners have more than met their burden of

showing that there are material facts in dispute. As such,

summary judgment is unwarranted and should have been denied.

Celotex Corp. v. Catrett, supra.

There was discussion that Petitioners were trying to

hold the Respondent strictly liable for the occurrence.

Petitioners do not dispute that the FTCA does not confer strict

liability upon the United States. However, Petitioners have

aE

12

never cast this action in strict liability terms. In fact, there is no

strict liability in New York in regard to cases like this. In New

York, strict liability is limited to statutory violations, products

liability and some vicious animal cases. 103 N.Y. Jur 2d 389,

394, 395. New York is a pure comparative negligence state.

CPLR 1411. Petitioner in this case can be found anywhere from

100% to 0.0% culpable for the occurrence herein.

One last point - Petitioners’ papers included a copy of

a page from a document called “Specifications” which was

supplied by the Respondent in connection with the construction

work in question. The document, a drawing of the post office

premises with notations as to the proposed construction project,

failed to show that any construction was planned for the site of

the occurrence, which, in fact, is consistent with Penny’s

testimony. Even if this site were to later come under

construction, which as far as we know it did not, under New

York law it cannot be deemed part of the construction area.

Where there is no evidence that a contractor for a public

authority has actually commenced repairs at the site of an

occurrence, the public authority remains liable even though the

contractor might at some unspecified time make repairs.

Kenyon v. City of New York, 194 A.D.2d 398; 598 NYS2d

508. When the contractor takes over the site liability will shift.

A contractor cannot be held liable where an accident took place

near but not at the site of construction. Pignataro v. Coen v.

Con Ed v. Webco v, City of New York, 150 A.D.2d 222; 514 r

NYS2d 392. The circumstances herein clearly place liability for

the occurrence on the Respondent.

The Petitioners’ point is that the area in question was

open to the public on the day of the occurrence and that it was

——E~ A ee

13

not part of the construction area. At the very least, Penny’s

testimony, even when read in a light most favorable to the

moving party, the Respondent, (which happens to be the

reverse of what we’re supposed to do when deciding motion for

summary judgment), suggests that there is more than enough

material to make out a prima facia case in favor of the

Petitioners due to the Respondent’s negligence. When we have

testimony such as that of Mr. Penny’s, which can be interpreted

one way or the other, summary judgment based on such

testimony is certainly not warranted. After all, the purpose of

the summary judgment procedure is not to decide issues but to

see if there are issues. Quaratino v. Tiffany & Co,, 71 F. 3d 58

(2d Cir. 1995). In this case there is most certainly an issue as to

who controlled the area in question, among others.

If this were an action against any other proprietor or

property-owner a motion such as this would have been denied

in the bat of an eyelash as the Petitioners have clearly met their

burden under Rule 56 by setting forth its theory and debunking

Respondent’s theories upon which it relied to support is

application for summary judgment.

The fact that there can be good faith disagreement

about what Penny said or meant to Say Clearly indicates that

there exist at least some triable issues of fact warranting

remand.

Issue II

In the case Borgren v. United States, 723 F.Supp.

581, a case in which the spouse of the injured party failed to

sign a notice of claim, the court found that “the administrative

claim filed by the Petitioner _. adequately provided sufficient

14

‘nformation to enable the administrative agency to conduct a full

investigation of the incident which resulted in the Petitioner’s

injuries. That being the case, Respondent had adequate notice

as required under 28 U.S.C. 2675.

In Hanlon v. United States, 134 F.R.D. 42, Judge

Weinstein a most respected jurist of the very court where the

instant action was pending decided, in an analogous case against

the same Respondent, the Postal Service, that where one spouse

did not sign a claim form, not only is the omission of a signature

not fatal, the form of the notice to Respondent need not even be

on the official claim form. Since serious injuries were alleged on

Claim Form 95 with regard to the injured Petitioner, “an

experienced agency such as the legal branch of the Postal

Service should have anticipated [a] claim for loss of

consortium”... “To satisfy the statutory requirement, the form

of the notice must simply be sufficient to afford the agency the

opportunity to investigate the claim.” The court, in allowing the

claim, noted that the complaint always referred to two

Petitioners and included a derivative claim for loss of

services/consortium. This is the standard which should be

applied in this part of the country.

Where the administrative agency acknowledges a

claim, even though the claim form was not signed by one

claimant the government had sufficient notice and the tort claim

could be maintained. Hilburn v. ULS., 789 F.Supp. 338.

In our case, the Respondent did acknowledge the

claim-of Cathy Roditis on at least one occasion prior to suit.

After the Petitioners filed their first claim form counsel received

Respondent’s letter dated July 15, 1992. In said letter the

Respondent clearly noted the names of both Petitioners which

15

makes it undeniable that they were aware of the claim of Cathy

Roditis. In fact, after the institution of this action, her deposition

was taken by the Respondent on September 28, 1995.

In another Postal Service case, very much like the case

at bar, where both spouses were noted on the claim form but

only one spouse signed the claim form, and unlike our case a

sum certain was not filled in, the court allowed a loss of

consortium claim against the Postal Service. Kokara v. U.S.,

750 F.Supp. 542. The court held:

Relevant legislative history supports a liberal

construction of the exhaustion requirement. Congress

had two main purposes in enacting section 2675(a) of

the FTCA. First Congress sought to “ease court

congestion and avoid unnecessary litigation, while

making it possible for the government to expedite the

fair settlement of tort claims against the United

States.” .... Second, Congress wanted to provide “fair

and equitable treatment of private individuals and

claimants when they deal with the government or are

involved in litigation with the government” The

dominant theme of section 2675(a), therefore, is to

apprise the agency involved in the activity which gave

rise to the claim so that fair settlement can be

effectuated if warranted. See GAF Corp. US., 818

F.2d 901, 919 (D.C.Cir. 1987) (“Congress repeatedly

characterized presentment as a simple requirement of

notice.”) In Lopez v, ULS., 758 F.2d 806 (1985), the

First Circuit stated, “The claims process is meant

largely to furnish notice to the government sufficient

to allow it to investigate the alleged negligent episode

to determine if settlement would be in the best

interests of all.” .... Moreover, it seems fair to

conclude that the FTCA is “intended to provide a

meena

16

framework conducive to administrative settlement of

claims, not to provide a basis for a regulatory checklist

which, when not fully observed, permits the

termination of claims regardless of their merits.”

Erxleben v. ULS., 668 F.2d 268.

Furthermore, the Kokaras court went on to say that

since Mrs. Kokaras name was on the claim form, even though

she did not sign it, the claim was validly presented and held that

her husband’s signature was sufficient because “28 C.F.R. 14.3

allows one’s agent to file a claim of her behalf.” This is exactly

the theory propounded by these Petitioners in their motion to

strike the Respondent’s Second Defense and a similar result

should ensue in our case.

A claim is properly presented within the meaning of

section 2675(a) when the agency receiving the claim is given

sufficient notice to commence investigation and the claimant

places a value on the claim. Transco Lsg. Corp. v. ULS., 896

F.2d 1435 citing Adams v. ULS., 615 F.2d 284. Frantz v. U.S.,

29 F.3d 222. In our case a value was put on the claim.

Espousing these same principals the court in Santiago-Ramirez

v. Secretary of the Dept. of Defense, 984 F.2d 16 stated “the

law was not intended to put up a barrier of technicalities to

defeat [Petitioners’] claims.” (Citing Lopez v, ULS., 758 F.2d

806.) “A flexible approach is in keeping with the original

purpose behind the filing of an administrative claim.... This

approach to the notice requirement recognizes that Congress

intended to leave the ultimate choice between settlement and

suit in the hands of the claimant.... [The administrative agency]

must have enough information that it may reasonably begin an

investigation of the claim”. In other words, in a case such as

17

that presently before the Court, where a sum certain is claimed

and both Petitioners are named in the claim forms both claims

are to be construed as valid and there is no justification for the

dismissal of the claim of the spouse who did not sign a claim

form.

Given the state of the law, particularly in the district

where this action was pending, the Petitioners’ motion to

dismiss Respondent’s Second Defense should have been

granted.

18

CONCLUSION

For the reasons stated herein, it is respectfully

requested that this Honorable Court grant the instant Petition

and, thereafter, (i) restore Petitioners’ action and remand the

case to the trial court, thereby reversing the order of the court

below granting summary judgment to Respondent; and (ii) grant

Petitioners’ motion to strike Respondent’s “Second Defense”

thereby reversing the order of the court below denying

Petitioners’ motion to dismiss the Respondent’s said second

defense.

Dated: New York, New York

February 25, 1998

Respectfully submitted,

GOLDMAN & RIO, ESQS.,

386 Park Avenue South

New York, N.Y. 10016

(212) 545-9011

MICHAEL L. GOLDMAN

Attorney for Petitioner

APPENDIX

GEORGE LANGE lil.

CLERK

Ata stated Term of the United States Court of Appeals for the Second

Circuit. held at the United States Courthouse, Foley Square, in the City

of New York, on the Second day of October, one houtend nine

hundred and ninety-seven.

Present:

HON. Ellsworth A. Van Graafeiland

HON. John M. Walder, Jr.

Circuit Judges

HON. J. Garvan Murtha

District Judge.*

ATHANASIOS RODITIS and CATHY RODITIS,

Plaintiffs-Appellants,

v.

Docket No. 96-6231

UNITED STATES OF AMERICA,

USCA

FILED 8/6/97

Defendant-Appellee.George Lane II]

Clerk 2d Cir.

Appcal from United States District Court for the Eastern

District of New York.

This cause came on to be heard on the transcript of record from

the Eastern District of New York and was argued by counsel.

ON CONSIDERATION WHEREOF, it is now ORDERED,

ADJUDGED. and DECREED that the judgment of said district court

be and it hc :eby is affirmed in accordance with the opinion of this

court.

ie

For the Court

George Lange III.

Clerk

By:

/s/

Beth J. Meadbor

Administrative

Attomcy

*The Honorable J. Garvan Murtha, Chicf Judge of the United States

District Court for the District of Vermont, sitting by designation.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

No. 1203—August Term 1996

(Argued April 8, 1997 Decided August 6, 1997)

Docket No. 96-6231

ATHANASIOS RODITIS and CATHY RODITIS,

Plaintiffs-Appellants,

—against—

UNITED STATES OF AMERICA,

Defendant-Appellee.

Before:

VAN GRAAFEILAND, WALKER, Circuit Judges,

and MURTHA, District Judge.*

Plaint ffs appeal from a judgment of the United States

District Court for the Eastern District of New York

(Real, J., sitting by designation) granting the United

* The Honorable J. Garvan Murtha, Chief Judge of the United States

District Court for the District of Vermont, sitting by designation.

States’ motion for summary judgment in this action for

personal injuries and loss of consortium under the Fed-

eral Tort Claims Act.

Affirmed.

MICHAEL L. GOLDMAN, Goldman & Rio,

New York, New York, for plaintiffs-

appellants.

TRACEY L. SALMON, Assistant United States

Attorney, Eastern District of New York,

Brooklyn, New York (Varuni Nelson,

Assistant United States Attorney,

Zachary W. Carter, United States Attor-

ney, on the brief) for defendant-

appellee. :

PER CURIAM:

Plaintiffs, Athanasios and Cathy Roditis, appeal from

a judgment of the United States District Court for the

Eastern District of New York (Manuel L. Real, District

Judge, of the United States District Court for the Central

District of California, sitting by designation), granting

summary judgment in favor of the United States and dis-

missing plaintiffs’ suit seeking recovery under the Fed-

eral Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671-80,

for personal injuries Athanasios Roditis suffered while

delivering building material to an independent contrac-

tor performing construction work on the premises of the

United States Post Office in Great Neck, New York.

A-5

Plaintiffs assert (1) that the district court erred in grant-

ing defendant’s motion for summary judgment because

there exists a material issue of fact as to whether the

location at which the injury occurred was within the con-

trol of the United States at the time of the accident and

(2) that, even if the injury occurred within an area under

the control of an independent contractor, the United

States is liable because, under New York tort law, a

landowner owes a nondelegable duty to maintain its

property. We reject both assertions and affirm.

I. BACKGROUND

On March 25, 1992, Athanasios Roditis (“Athana-

sios”) slipped and fell on a patch of ice while attempting

to negotiate a three-step flight of stairs in the rear of the

United States Post Office in Great Neck, New York,

injuring his back. At the time of the accident, Beys Spe-

cialty Contracting Corporation (“Beys Specialty”) was

constructing an underground parking area at the post

office pursuant to a contract with the United States

Postal Service (“USPS”). On the day of the incident,

Athanasios was delivering materials to the construction

site, located to the rear of the post office, for one of the

project’s subcontractors.

According to Athanasios, the accident occurred as he

walked from the post office’s parking lot to Beys Spe-

cialty’s foreman to tell the latter that he had just arrived

with a delivery of construction material. On the way,

Athanasios claimed that he slipped on the stairs because

snow and ice had not been properly cleared. According

to plaintiffs, Athanasios was taken to a hospital and

diagnosed as suffering from a recurrent herniated disc

and other injuries.

Pursuant to 28 U.S.C. § 2675(a), plaintiffs filed two

administrative claim forms, dated June 18 and July 21,

1992, alleging entitlement to recovery for injuries suf-

fered as a result of the fall. On the forms, plaintiffs

sought as much as $2,000,000 in recovery. Although

Cathy Roditis (“Cathy”), Athanasios’s wife, is named as

a “claimant” on the forms, she did not sign the form or

state, even in the most general terms, an injury con-

nected with the accident. Following the denial of plain-

tiffs’ claims, they filed an action in the United States

District Court for the Eastern Dtstrict of New York seek-

ing $5,000,000 in damages for Athanasios’s injuries and

$1,000,000 in damages for Cathy’s alleged loss of con-

sortium. The United States answered alleging that an

independent contractor, not the United States, was

responsible for Athanasios’s injuries and that Cathy had

not stated a claim because she had failed to exhaust her

administrative remedies as required by the FTCA.

A-6

After a period of discovery, plaintiffs moved to strike

the United States’ defense to Cathy’s claim. The United

States opposed the plaintiffs’ motion to strike and filed

a cross-motion for summary judgment on the entire com-

plaint. After oral argument, the district court denied

plaintiffs’ motion to strike and granted defendant's

motion for summary judgment. The district court con-

cluded that, under the FTCA, the United States is not

liable for the negligence of its independent contractors

and that the area in which the accident occurred was

controlled by the general contractor, Beys Specialty, and

not the United States.

A-7

II. DISCUSSION

On appeal, plaintiffs contend that the district court

erred in granting summary judgment because there exists

a genuine issue of material fact with respect to whether

the accident site was under the control of Beys Specialty

or the United States. In the alternative, plaintiffs argue

that even if Athanasios fell within an area controlled by

Beys Specialty, the United States is liable because under

New York tort law a landowner owes a nondelegable

duty to maintain its property.

A. Control Over the Accident Site

On appeal, we review a district court’s grant of sum-

mary judgment de novo, drawing all inferences from the

underlying facts in favor of the nonmovant. See

Quaratino v. Tiffany & Co., 71 F.3d 58, 64 (2d Cir.

1995). The party moving for summary judgment has the

burden of showing the absence of a genuine issue of

material fact. See Adickes v. S.H. Kress & Co., 398 U.S.

144, 157 (1970). Mindful of these standards, we agree

with the district court that there is no genuine issue of

material fact and that the United States is entitled to

judgment as a matter of law. See Fed. R. Civ. P. 56.

Plaintiffs’ affidavit, filed in opposition to the United

States’ motion for summary judgment, states that no

construction work was being done on the steps at the

time of the accident and that there were no barricades or

warning signs indicating that the area was off-limits.

This evidence, however, even:viewed in the light most

favorable to plaintiffs, fails to establish that the USPS

controlled or otherwise had responsibility for the area in

question. That the stairs themselves were not under con-

struction, or immediately surrounded by active con-

BEST AVAILABLE COPY

A-8

struction work, is not dispositive. The span of a con-

struction site is not limited to the precise area where the

construction is taking place; it includes adjacent areas as

well. Moreover, the absence of barricades or warning

signs does not establish that the area was outside the

control of the independent contractor.

Additional evidence leads conclusively to the fact that

the locus of the accident was within the zone controlled

by the Beys Specialty. Edgar Penny, the chief custodian

of the Great Neck Post Office, on at least five occasions

during his deposition, firmly and unequivocally stated

that the area in which Athanasios fell was “off limits” to

postal workers and used solely by the construction work-

ers. Plaintiffs proffered no reasonably credible evidence

in rebuttal. In addition, plaintiffs’ own photographs indi-

cate that the rear entrance of the post office, which is

immediately adjacent to the spot where Athanasios fell,

was boarded up—an unmistakable indication that the

area where the accident occurred was within the zone of

construction. See Brief for the United States, Addendum

A, at 1.

B. Nondelegable duty

Plaintiffs argue in the alternative that, even assuming

that the accident site was not within the control of the

USPS, the United States is nonetheless liable because,

under New York law, a landowner who holds property

open to the public has a nondelegable duty to ensure that

the premises are safe. See, e.g., Thomassen v. J & K

Diner, Inc., 549 N.Y.S.2d 416, 417 (N.Y. App. Div.

1989). Even assuming such a nondelegable duty exists,

plaintiffs nonetheless are foreclosed under the FTCA

from a recovery based on such a duty.

A-9

Consent of the United States to be sued “ ‘cannot be

implied, but must be unequivocally expressed.’ ” United

States v. Testan, 424 U.S. 392, 399 (1976) (quoting

United States v. King, 395 U.S. 1, 4 (1969)). In the

FTCA, Congress waived the United States’ sovereign

immunity for suits arising from any 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.

§ 1346(b)(1). “Employee” under the FTCA, however,

specifically excludes “any contractor with the United

States.” 28 U.S.C. § 2671; United States v. Orleans, 425

U.S. 807, 813-14 (1976); Logue v. United States, 412

U.S. 521, 526-27 (1973). Thu:, as a general rule,

sovereign immunity precludes suits against the United

States for injuries caused by its independent contractors.

The facts, viewed in the light most favorable to plain-

tiffs, fail to support a reasonable inference that Beys

Specialty was an “employee” within the meaning of the

Act. The United States did not maintain control of “the

detailed physical performance of the contractor,” Logue,

412 US. at 527-28, or supervise “its day-to-day opera-

tions,” Orleans, 425 U.S. at 815. The only arguable indi-

cia of control, the government's retention of a right to

inspect the progress of construction, does not convert a

contractor into a federal employee. See, €.8- Leone v.

United States, 910 F.2d 46, 50 (2d Cir. 1990).

Plaintiffs, however, contend that under New York's

putative nondelegable duty, see 28 U.S.C. § 1346(b)

(noting that liability under the FTCA is determined “in

accordance with the law of the place where the act or

omission occurred”), recovery is possible notwith-

standing the FTCA’s independent contractor exception.

This argument fails for two reasons.

A-10

First, as the Supreme Court has explained, in adopting

the independent contractor exception to liability,

Congress did not simultaneously adopt the exceptions to

that doctrine. See Logue, 412 U.S. at 528; see also

Basher v. United States, No. 92-CV-186, 1995 WL

646343, at *3 (D. Conn. Mar. 14, 1995) (Cabranes, J.).

Thus, any state [law nondelegable duty cannot, on its

own, override the United States’ sovereign immunity

from suits for injuries caused by its independent con-

tractors. See Berkman v. United States, 957 F.2d 108,

112 (4th Cir. 1992) (holding FTCA exemption of lia-

bility for government contractors preempts state law

where it imposes nondelegable duties); Hall v. United

States, 825 F. Supp. 427, 431-32 (D.N.H. 1993) (United

States not liable where plaintiff was injured in an ele-

vator in government building and elevator maintenance

delegated to independent contractor); Rowell v. United

States, No. 89-Civ-8418, 1992 WL 315653, at *2

(S.D.N.Y. Oct. 16, 1992) (noting that if plaintiff “could

predicate government liability upon New York laws

imposing nondelegable duties upon landowners. . . he

would subvert the express mandates of the FTCA that

preclude making the government liable for acts of its

independent contractors”); Smith v. United States, 674 F.

Supp. 683, 686 (D. Minn. 1987); Aetna Life & Cas. Ins.

Co. v. United States, 508 F. Supp. 298, 301 (N.D. IIl.

1981). But see Dickerson, Inc. v. United States, 875 F.2d

1577, 1582-83 (11th Cir. 1989) (holding that “the inde-

pendent contractor exception in the FTCA would not

insulate the Government from the contractor's negli-

gence if the duty was non-delegable under [state] law”).

Plaintiffs’ theory fails for a second reason. State law

nondelegable duties imposed on landowners would

result, in cases such as this, in a form of strict liability

A-11

Consent of the United States to be sued “ ‘cannot be

implied, but must be unequivocally expressed.’ United

States v. Testan, 424 U.S. 392, 399 (1976) (quoting

United States v. King, 395 U.S. 1, 4 (1969)). In the

FTCA, Congress waived the United States’ sovereign

immunity for suits arising from any 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.

§ 1346(b)(1). “Employee” under the FTCA, however,

specifically excludes “any contractor with the United

States.” 28 U.S.C. § 2671; United States v. Orleans, 425

U.S. 807, 813-14 (1976); Logue v. United States, 412

U.S. 521, 526-27 (1973). Thus, as a general rule,

sovereign immunity precludes suits against the United

States for injuries caused by its independent contractors.

The facts, viewed in the light most favorable to plain-

tiffs, fail to support a reasonable inference that Beys

Specialty was an “employee” within the meaning of the

Act. The United States did not maintain control of “the

detailed physical performance of the contractor,” Logue,

412 US. at 527-28, or supervise “its day-to-day opera-

tions,” Orleans, 425 U.S. at 815. The only arguable indi-

cia of control, the government's retention of a right to

inspect the progress of construction, does not convert a

contractor into a federal employee. See, e.g., Leone v.

United States, 910 F.2d 46, 50 (2d Cir. 1990).

Plaintiffs, however, contend that under New York’s

putative nondelegable duty, see 28 U.S.C. § 1346(d)

(noting that liability under the FTCA is determined “in

accordance with the law of the place where the act or

omission occurred”), recovery is possible notwith-

standing the FTCA’s independent contractor exception.

This argument fails for two reasons.

A-12

First, as the Supreme Court has explained, in adopting

the independent contractor exception to liability,

Congress did not simultaneously adopt the exceptions to

that doctrine. See Logue, 412 U.S. at 528: see also

Basher v. United States, No. 92-CV-186, 1995 WL

646343, at *3 (D. Conn. Mar. 14, 1995) (Cabranes, J.).

Thus, any state law nondelegable duty cannot, on its

own, override the United States’ sovereign immunity

from suits for injuries caused by its independent con-

tractors. See Berkman v. United States, 957 F.2d 108,

112 (4th Cir. 1992) (holding FTCA exemption of lia-

bility for government contractors preempts state law

where it imposes nondelegable duties); Hall v. United

States, 825 F. Supp. 427, 431-32 (D.N.H. 1993) (United

States not liable where plaintiff was injured in an ele-

vator in government building and elevator maintenance

delegated to independent contractor); Rowell v. United

States, No. 89-Civ-8418, 1992 WL 315653, at *2

(S.D.N.Y. Oct. 16, 1992) (noting that if plaintiff “could

predicate government liability upon New York laws

imposing nondelegable duties upon landowners. . . he

would subvert the express mandates of the FTCA that

preclude making the government liable for acts of its

independent contractors”); Smith v. United States, 674 F.

Supp. 683, 686 (D. Minn. 1987); Aetna Life & Cas. Ins.

Co. v. United States, 508 F. Supp. 298, 301 (N.D. III.

1981). But see Dickerson, Inc. v. United States, 875 F.2d

1577, 1582-83 (11th Cir. 1989) (holding that “the inde-

pendent contractor exception in the FTCA would not

insulate the Government from the contractor’s negli-

gence if the duty was non-delegable under [state] law”).

Plaintiffs’ theory fails for a second reason. State law

nondelegable duties imposed on landowners would

result, in cases such as this, in a form of strict liability

A-13

against the United States for injuries caused by its inde-

pendent contractors. The FTCA, however, precludes

government liability absent a negligent act, and, thus,

“does not extend to liability without fault.” Dalehite v.

United States, 346 U.S. 15, 44 (1953); see also Schnei-

der v. United States, 734 F. Supp. 239, 248 (E.D. La.

1990); Maltais v. United States, 546 F. Supp. 96, 101

(N.D.N.Y. 1982) (Miner, J.), aff'd, 729 F.2d 1442 (2d

Cir. 1983) (mem.); Dumansky v. United States, 486 F.

Supp. 1078, 1093 (D.N.J. 1980).

Accordingly, in rejecting plaintiffs’ arguments, we

hold that in this suit under the FTCA, where the United

States is wholly without fault, the federal government

may not be held liable for a negligent or wrongful act or

omission of an independent contractor even where state

law would impose liability in such instances.

Ill. CONCLUSION

We have considered all of plaintiffs’ remaining con-

tentions and have found them to be without merit. For

the reasons set forth above, the judgment of the district

court is hereby AFFIRMED.

A-14

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

FILED in

! Clerks OfficeEDNY

‘ ATHANASIOS RODITIS and July 2, 1996

CATHY RODITIS,

JUDGMENT

| Plaintiffs, |

-against-

CV-93-4480 (ARR)

THE UNITED STATES OF AMERICA,

Defendant.

en ee

An order of Honorable Manuel L. Real, United States

District Court Judge, sitting by intercircuit assignment from the United

States District Court for the Central District of California, having been

filed on July 1, 1996, denying plaintiffs’ motion to strike the second

affirmative defense of the defendant; granting defendant’s cross-motion

for summary judgement and dismissing the action, it is

ORDERED and ADJUDGED that plaintiffs take nothing

of the defendant: that plaintiffs’ motion to stride the second affirmative

defense of the defendant is denied: thaf defendant's cross-motion for

summary judgement is granted; and, that the action is dismissed.

Dated: Brooklyn, N.Y.

July 1 , 1996

| Is/

Robert C. Heinemann

Clerk of Court

GEORGE LANGE Ill,

CLERK

At a stated Term of the United States Court of Appeals for the

Second Circuit, held at the United States Courthouse, Foley Square. in

the City of New York, on the Second dav of October, one thousand

nine hundred and ninety-seven.

Present: HON. Filsworth A. Van Graafeiland

HON. John M. Walder, Jr.

Circuit Judges

HON. J. Garvan Murtha

District Judge.*

ATHANASIOS RODITIS and CATHY RODITIS,

Plaintiffs-Appellants,

w.

Docket No. 96-6231

UNITED STATES OF AMERICA,

USCA

FILED 10/2/97

Defendant-Appellec.George Lane Ill

Clerk 2d Cir.

A Petition for Rehearing having been filed herein by

Appellants Athanasios and Cathy Roditis

Upon consideation thercof, it is Ordered thatr said motion is hereby

denicd.

For the Court

George Lange III,

Clerk

By:

a

Beth J. Mcadbor

Administrative

Attomey

*The Honorable J. Garvan Murtha, Chief Judge of the United States

District Court for the District of Vermont, sitting by designation.