13-3880-cv
Haskin v. United States
              UNITED STATES COURT OF APPEALS
                  FOR THE SECOND CIRCUIT

                          SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
2007 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE
32.1.1.   WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED
WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL
APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
"SUMMARY ORDER").   A PARTY CITING TO A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
          At a stated term of the United States Court of
Appeals for the Second Circuit, held at the Thurgood
Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 11th day of June, two thousand
fourteen.

PRESENT: JOHN M. WALKER, JR.,
         DENNY CHIN,
         CHRISTOPHER F. DRONEY,
                  Circuit Judges.
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GREGORY HASKIN, STEPHANIE BUCK HASKIN,
                  Plaintiffs-Appellants,
                  -v-                              13-3880-cv
UNITED STATES OF AMERICA, ANDIFRED REALTY CORP.,
                  Defendants-Cross Defendants-
                  Cross Claimants–Appellees,
PRECISE DETAILING, LLC,
                  Defendant-Cross Defendant-
                  Cross Claimant.
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FOR PLAINTIFFS-APPELLANTS:
         JOHN V. DECOLATOR, Esq., Garden City, New York.

FOR DEFENDANTS-CROSS DEFENDANTS-CROSS CLAIMANTS-APPELLEES:
         ROBERT W. SCHUMACHER (Varuni Nelson, on the
         brief), Assistant United States Attorneys, for
         Loretta E. Lynch, United States Attorney, Eastern
         District of New York, Central Islip, New York.
         KEVIN J. SPENCER, Esq., New York, New York, for
         Andifred Realty Corporation.

         Appeal from the United States District Court for
the Eastern District of New York (Brodie, J.).
         UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is
VACATED and the case is REMANDED.

         Plaintiffs-appellants Gregory Haskin ("Haskin")
and Stephanie Buck Haskin appeal from the judgment of the
district court entered September 11, 2013, dismissing their
complaint for lack of subject matter jurisdiction.    This
matter arises from a slip-and-fall incident, in which
Haskin sustained injuries on an icy sidewalk outside a
branch of the United States Postal Service (the "USPS").
We assume the parties' familiarity with the facts,
procedural history, and issues for review, which we
summarize briefly below.




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1.    Relevant Facts and Procedural History

           On December 19 and December 20, 2009,
approximately 15 inches of snow fell outside the USPS

branch (the "Branch") in Glen Head, New York.                The Branch
is located in a business complex owned by defendant-
appellee Andifred Realty Corporation ("Andifred").                 Between
December 19 and December 21, 2009, defendant Precise
Detailing LLC ("Precise"), a snow-plowing company that the
USPS had contracted to provide snow and ice removal
services, visited the Branch at four different times to
remove snow and ice and apply ice melt chemicals.1
           In its contract with the USPS (the "Contract"),

Precise agreed to provide snow and ice removal services at
the Branch from November 15, 2009 through November 14,
2010.    Precise agreed to "furnish all labor, materials,
supervision, and equipment necessary to provide snow
removal, snow/ice plowing and salt/sanding services" for
specified areas of the Branch's premises.              J.A. 627
(capitalization altered).          The Contract required Precise to
plow snow "automatically . . . without notification" when
snow accumulation reached two inches.             J.A. 628
(capitalization altered).          The Contract also provided that


      1
            In the proceedings below, Precise asserted that it visited the
Branch at approximately 5:00 a.m. on December 21, 2009, the morning of
Haskin's slip-and-fall. The Haskins disagreed, arguing that, had Precise
actually applied ice melt chemicals that morning, there would have been no ice
on the Branch's sidewalks when Haskin fell.

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the USPS could summon Precise for snow removal even when
snowfall was less than two inches.   Under the Contract,

Precise was required to respond to the USPS's calls within
one hour and to respond within two hours to snowfall of two
inches or more.    The USPS also reserved the right to call
Precise back to remove snow in areas Precise missed or did
not plow to the USPS's satisfaction.    The USPS, however,
also kept shovels and ice melt at the Branch.   If USPS
employees saw any snow or ice on sidewalks leading to the
Branch, they would either call Precise or remove the
precipitation themselves.

          On December 21, 2009, less than two inches of snow
fell.   At approximately 5:15 a.m., USPS employee Fred
Nizzari arrived at the Branch; he unlocked the Branch's
front door at approximately 5:30 a.m.   Nizzari normally
inspected the sidewalks surrounding the Branch to make sure
they were clear.   Later that morning, at approximately 8:00
a.m., Haskin slipped and fell on an icy sidewalk in front
of the Branch.
          On November 3, 2010, Haskin and his wife Stephanie
Buck Haskin filed suit against the United States under the
Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346, and
against Andifred and Precise for state law negligence.
           On September 4, 2013, the district court (1)
granted the Government's motion to dismiss for lack of

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subject matter jurisdiction and (2) declined to exercise
supplemental jurisdiction over the Haskins' state law

negligence claims against Andifred and Precise.    This
appeal followed.

2.   Standard of Review and Applicable Law

         We review de novo a district court's grant of a
Rule 12(b)(1) motion to dismiss for lack of subject matter
jurisdiction, construing all ambiguities and drawing all
inferences in the non-moving party's favor.   Triestman v.
Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006);
Makarova v. United States, 201 F.3d 110, 113 (2d Cir.
2000).

         Dismissal of a case for lack of subject matter
jurisdiction under Rule 12(b)(1) is proper "when the
district court lacks the statutory or constitutional power
to adjudicate it."    Marakova, 201 F.3d at 113.   "The
plaintiff bears the burden of proving subject matter
jurisdiction by a preponderance of the evidence."

Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635,
638 (2d Cir. 2005).
         "[A]s a general rule, sovereign immunity precludes

suits against the United States for injuries caused by its
independent contractors."   Roditis v. United States, 122
F.3d 108, 111 (2d Cir. 1997).   Under the FTCA, however,
parties may sue the United States for "injur[ies] . . .

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caused by the negligent or wrongful act or omission of any
employee of the Government."    28 U.S.C. § 1346(b)(1).   As

it creates a waiver of sovereign immunity, the FTCA "is to
be strictly construed in favor of the government."   Liranzo
v. United States, 690 F.3d 78, 84 (2d Cir. 2012) (internal

quotation marks omitted).   Under the FTCA's independent
contractor exception, "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."   Roditis, 122 F.3d at 112 (emphasis added).

3.   Application

         On appeal, the Government argues that the district
court correctly dismissed the Haskins' FTCA claims as
barred by sovereign immunity.    The district court -- the
Government asserts -- correctly read the Contract to
"unambiguously delegate[] all snow removal responsibility
to Precise when snow accumulation was over two inches."
Gov't Br. at 9 (citing Haskin v. United States, No. 10-cv-
5089, 2013 WL 4761110, at *9 (E.D.N.Y. Sept. 4, 2013)).
The Government contends that, as the record contained "no

evidence that the United States controlled Precise’s
physical performance of the Contract or instructed Precise
on a daily basis," the district court "properly held that
the United States had not waived sovereign immunity with

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respect to [the Haskins'] claims."   Gov't Br. at 11.   We
are not persuaded.

         We conclude that the district court prematurely
dismissed the Haskins' suit for lack of subject matter
jurisdiction, as genuine issues of material fact existed
concerning the alleged negligence of USPS employees.    See
Logue v. United States, 412 U.S. 521, 532-33 (1973)
(vacating dismissal of FTCA claim and remanding to

determine whether government employee's negligence --
separate from independent contractor's negligence -- caused
injuries); see also, e.g., Pelchy v. United States, 549 F.
Supp. 2d 198, 204 (N.D.N.Y. 2008) (denying Government's
motion to dismiss FTCA claim on sovereign immunity ground
because "it is not yet clear as a matter of law that [the
independent contractor] was solely responsible for the
defective property condition").
         The record contains evidence from which a
reasonable jury could find that Haskin's injury resulted
from the negligence of USPS employees.   Here, the USPS
chose to contractually delegate some -- but not all -- of
its snow removal responsibilities to Precise.   Cf. Roditis,
122 F.3d at 110 (noting that construction area in which
plaintiff fell was "off limits" to government employees and
"used solely by" independent contractor).   At a minimum,
the USPS retained responsibility for inspecting the

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Branch's sidewalks when less than two inches of snow fell.
In such circumstances, as was the case on December 21,

2009, USPS employees could either (1) ask Precise to come
to the Branch or (2) remove the snow and ice themselves.
Indeed, USPS employees customarily checked the sidewalks
surrounding the Branch for snow and ice, and kept shovels
and ice melt chemicals at the Branch to remove snow and ice
themselves.
          Under New York law, an occupier of land has "a
duty to exercise reasonable care under the circumstances in
maintaining its property in a safe condition."   Kush v.
City of Buffalo, 59 N.Y.2d 26, 29 (1983); see also
Zuckerman v. State, 618 N.Y.S.2d 917, 918 (2d Dep't 1994)
("[T]he owner or possessor of property [has] the duty to

make reasonable efforts to inspect the property so as to
determine the presence of dangerous conditions").     As the
district court correctly observed, a duty under "state law
cannot override the United States' sovereign immunity from
suits for injuries caused by the torts of its independent
contractors."   Haskin, 2013 WL 4761110, at *11 (internal
quotation marks omitted); see also Roditis, 122 F.3d at 111
(same).   The Haskins' claims, however, are not premised
solely on the "torts of [an] independent contractor[]," nor
are they proceeding against the USPS on a respondeat
superior theory.   Haskin, 2013 WL 4761110, at *11.   Rather,

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they allege direct negligence on the part of USPS
employees.    Sovereign immunity does not shield the

Government from such claims of direct negligence.      See
Logue, 412 U.S. at 532-33.
         A reasonable jury could conclude, therefore, that
Haskin was injured by the negligence of USPS employees --
specifically, their failure to detect and remove ice on the
sidewalks surrounding the Branch, or their failure to
summon Precise to remove the ice.    Under the FTCA, the
district court has jurisdiction to resolve such claims.
See 28 U.S.C. § 1346.
         Accordingly, we determine that the district court
erred in dismissing the Haskins' complaint for lack of
subject matter jurisdiction, as factual issues were
presented concerning the USPS employees' alleged
negligence.    We express no opinion on the merits of the
controversy.
                             * * *
         We have considered the Government's remaining
arguments and conclude they are without merit.     For the
foregoing reasons, we VACATE the judgment of the district
court and REMAND for proceedings not inconsistent with this
order.
                             FOR THE COURT:
                             Catherine O'Hagan Wolfe, Clerk



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