Joseph v. United States

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FOR DEFENDANTS-APPELLEES: P HILIP R. DEPAUL (Rachel G. Balaban, Varuni Nelson on the brief), Assistant United States Attorneys, Of Counsel, for Breon

Peace, United States Attorney for the Eastern District of New York, Brooklyn, N.Y.

Appeal from a judgment of the United States District Court for the Eastern District of New York (Gonzalez, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED. Plaintiffs-Appellants Joanna Joseph and Santford Rucker appeal from the district court's grant of summary judgment to Defendant-Appellee United States of America on their Federal Torts Claim Act ("FTCA") claim.¹We assume the parties' familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

"We review the District Court's entry of summary judgment de novo. Summary judgment is appropriate when, construing the evidence in the light most favorable to the non- moving party, there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Rojas v. Roman Cath. Diocese of Rochester, 660 F.3d 98, 104 (2d Cir. 2011) (cleaned up).

We conclude that the district court properly granted summary judgment. Under the FTCA, a "tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues," 28 U.S.C. § 2401(b), and "a claim shall be deemed to have been presented when a Federal agency receives

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from a claimant . . . written notification of an incident," 28 C.F.R. § 14.2(a). See Cooke v. United States, 918 F.3d 77, 82 (2d Cir. 2019) ("The statute and corresponding regulation make clear that actual receipt is required.").

Here, Plaintiffs failed to create a genuine dispute as to whether the appropriate agency actually received their notice of claim within two years of when the claim accrued. Plaintiffs contend that process server Zanekee Pow provided the United States Postal Service with a notice of their claim a day before the FTCA's two-year limitations period ended, but Pow's affidavits do not permit a reasonable juror to find for Plaintiffs.

First, Pow's affidavits are inconsistent and contradictory. Pow claims to have given Plaintiffs' notice of claim to someone named "S. Pilna," but his 2021 and 2023 affidavits are inconsistent as to whether S. Pilna is a man or woman. Moreover, Pow states in his 2023 affidavit that S. Pilna gave Pow a stamped copy of the notice of claim, but Plaintiffs fail to produce that stamped copy. These "inconsistent and contradictory statements transcend credibility concerns and go to the heart of whether the party has raised genuine issues of material fact." Rojas, 660 F.3d at 106.

Second, Pow's affidavits do not refute the government's evidence that the United States Postal Service did not receive the notice of claim within the limitations period. In fact, the record shows that no person with the surname "Pilna" worked in the government building where Pow claims to have served the notice of claim. "When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court

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should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." Scott v. Harris, 550 U.S. 372, 380 (2007).

We have considered Plaintiffs' remaining arguments and find them to be without merit. For the foregoing reasons, the judgment of the district court is AFFIRMED.

FOR THE COURT:

Catherine O'Hagan Wolfe, Clerk of Court

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