Opinion
20-CV-4599 (WFK) (RML)
2022-05-04
Carmen MOSCA, Plaintiff, v. UNITED STATES of America, Defendant.
Richard Eugene Schirmer, Sacco & Fillas, LLP, Astoria, NY, for Plaintiff. Kevin Yim, DOJ-USAO, Brooklyn, NY, for Defendant.
Richard Eugene Schirmer, Sacco & Fillas, LLP, Astoria, NY, for Plaintiff.
Kevin Yim, DOJ-USAO, Brooklyn, NY, for Defendant.
ORDER
WILLIAM F. KUNTZ, II, United States District Judge:
Plaintiff Carmen Mosca ("Plaintiff") commenced this Federal Tort Claims Act ("FTCA") action against the United States ("Government"), alleging she was injured when she slipped and fell on a negligently maintained sidewalk in front of a United States Post Office. The Government now moves for summary judgment and judgment on the pleadings, arguing the Complaint is time-barred under the FTCA. The Court agrees, and therefore GRANTS the motion for summary judgment and DISMISSES the Complaint.
Background
Plaintiff alleges she was injured on September 1, 2017 when she slipped and fell on a negligently maintained sidewalk outside a United States Post Office in Flushing, New York. Compl. ¶¶ 19-22, ECF No. 1. Plaintiff filed an administrative complaint with the United States Postal Service ("USPS") on January 3, 2019, which USPS denied on October 30, 2019. See Claim for Damage, Injury, or Death, ECF No. 1, Ex. A; Oct. 30, 2019 Ltr., ECF No. 1, Ex. B.
On October 2, 2020—nearly one year after USPS denied her administrative claim—Plaintiff commenced the instant action under the FTCA, asserting one claim of negligence against the United States. See Compl. The Government answered the Complaint on January 23, 2021. See Answer, ECF No. 9. On August 6, 2021, the Government moved for summary judgment or, in the alternative, judgment on the pleadings, arguing Plaintiff's claim was time-barred under the FTCA. Mot. at 1, ECF No. 16-1.
Because the Court grants the Government's motion for summary judgment, the Court does not reach the motion for judgment on the pleadings. Moreover, Plaintiff seeks to equitably toll the FTCA's deadlines, and "[q]uestions of equitable tolling ... generally must look outside the pleadings and are therefore better decided on a motion for summary judgment rather than pursuant to Rule 12(c)." Jamieson v. United States Postal Serv. , No. 20-CV-6184, 2022 WL 43767, at *1 n.2, 2022 U.S. Dist. LEXIS 2145, at *2 n.2 (E.D.N.Y. Jan. 5, 2022) (Garaufis, J.).
Summary judgment is appropriate if the record demonstrates "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). The Court must grant summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case." El-Nahal v. Yassky , 835 F.3d 248, 252 (2d Cir. 2016) (quotations and citation omitted). "In such a situation, there can be no ‘genuine issue as to any material fact,’ since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. (quoting Celotex Corp. v. Catrett , 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). The Court must view all the facts "in the light most favorable" to the non-moving party. Holcomb v. Iona Coll. , 521 F.3d 130, 132 (2d Cir. 2008).
Discussion
Plaintiff's Complaint must be dismissed because her claims are untimely. The FTCA requires all tort claims against the United States to be filed within six months of "notice of final denial of the claim by the agency to which it was presented." 28 U.S.C. § 2401(b) ; see Jamieson , 2022 WL 43767, at *2, 2022 U.S. Dist. LEXIS 2145, at *4 ("The FTCA imposes a time-bar that requires suits ... to be filed within six months of notice of final denial of the claim by the agency") (citations and quotations omitted). There is no dispute Plaintiff filed the Complaint nearly twelve months after USPS denied her administrative claim. Plaintiff's Complaint is thus time-barred under the FTCA.
Although she concedes her claims are untimely, see Decl. in Opp. ("Opp.") ¶¶ 12, 19, 34, ECF No. 17, Plaintiff nonetheless argues she is entitled to equitably toll the FTCA's deadlines because of the Covid-19 pandemic and its disruption on legal services. Id. ¶¶ 24-26. To qualify for the "rare and exceptional" remedy of equitable tolling, Walker v. Jastremski , 430 F.3d 560, 564 (2d Cir. 2005), Plaintiff must establish "extraordinary circumstances prevented her from filing her claim on time, and that she acted with reasonable diligence throughout the period she seeks to toll." Arciello v. Cty. of Nassau , No. 16-CV-3974, 2019 WL 4575145, at *10, 2019 U.S. Dist. LEXIS 161167, at *25-26 (E.D.N.Y. Sept. 20, 2019) (Spatt, J.) (alterations omitted) (quoting Parada v. Banco Indus. De Venez. C.A. , 753 F.3d 62, 71 (2d Cir. 2014) ). "[E]xtraordinary" refers "not to the uniqueness of a party's circumstance, but rather to the severity of the obstacle impeding compliance with a limitations period." PT Rahajasa Media Internet v. Telecomm. & Informatics Fin. Provider & Mgmt. Ctr. , No. 20-CV-11035, 2022 WL 992841, at *4, 2022 U.S. Dist. LEXIS 61723, at *12 (S.D.N.Y. Mar. 31, 2022) (Gardephe, J.) (citation omitted). There must also be some "link of causation between the extraordinary circumstances and the failure to file." Gunn v. Aquafredda , No. 19-CV-10039, 2021 WL 3115488, at *5, 2021 U.S. Dist. LEXIS 136061, at *13 (S.D.N.Y. July 21, 2021) (Seibel, J.) (citations omitted); Watson v. United States , 865 F.3d 123, 132 (2d Cir. 2017) ("[I]t is not enough for a party to show that he experienced extraordinary circumstances. [Sh]e must further demonstrate that those circumstances caused [her] to miss the original filing deadline.") (citation and quotations omitted) (emphasis in original).
Plaintiff argues the pandemic is an "extraordinary circumstance" that justifies equitable tolling, but this claim falls short. "[A] plaintiff must plead more than the existence of the pandemic to show the extraordinary circumstances required for equitable tolling." Rodriguez v. Hudson Valley Chrysler , No. 20-CV-9646, 2021 WL 5910173, at *3, 2021 U.S. Dist. LEXIS 239129, at *8 (S.D.N.Y. Dec. 14, 2021) (Roman, J.) (citing cases); see Jamieson, 2022 WL 43767, at *2, 2022 U.S. Dist. LEXIS 2145, at *5 (denying request to equitably toll the FTCA's deadlines where plaintiff "never actually articulated how the pandemic personally affected her"). While Plaintiff points to the delays and confusion caused by the pandemic and the transition to remote work, Plaintiff does not explain how these events specifically prevented her and her attorneys from timely filing the Complaint. Nor does Plaintiff explain why her counsel could not have filed the Complaint in the five months after USPS denied her administrative claim but before the March 2020 lockdowns. See Delrosario v. United States , No. 21-CV-224, 2021 WL 5833974 at *3, 2021 U.S. Dist. LEXIS 235686 at *9 (D.R.I. Dec. 9, 2021) (denying request to equitably toll the FTCA's deadlines where plaintiff did not diligently pursue its claim before the pandemic restrictions).
Moreover, Plaintiff's claim that the pandemic caused the "[j]udicial system" to "shut down entirely" such that "no legal filings could be made in New York," Opp. ¶¶ 23-24, are not only unavailing, but also false. The record shows attorneys from Plaintiff's law firm continued to litigate cases in the Eastern District of New York throughout the pandemic. While Plaintiff argues those cases were handled by attorneys not assigned to the instant case, courts look to the experience of the law firm, and not just the particular attorney. See Phillips v. Generations Family Health Ctr. , 657 Fed. App'x 56, 59 (2d Cir. 2016) (summary order); see also Hood v. Catholic Health Sys. , No. 20-CV-673, 2020 WL 8371205 at *4, 2020 U.S. Dist. LEXIS 249477 at * 12 (W.D.N.Y. Sept. 28, 2020) (denying request to equitably toll deadlines where, among other things, plaintiff's law firm "commenced two new civil actions" at the height of the pandemic and "made electronic case filings in a number of other cases"). And contrary to Plaintiff's assertions, the "general effects of the pandemic and the governmental response have not halted the operations of law offices or the courts," Hood, 2020 WL 8371205, at *7, 2020 U.S. Dist. LEXIS 249477, at * 18, and the Eastern District has "always remained technically open for business." Jamieson, 2022 WL 43767, at *3, 2022 U.S. Dist. LEXIS 2145, at *7. Plaintiff has thus failed to provide a convincing reason why she was unable to timely file her Complaint.
CONCLUSION
For the foregoing reasons, the Court GRANTS the Government's motion for summary judgment and DISMISSES the Complaint.