16-3760-cv
Zeng 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 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 23rd day of August, two thousand seventeen.

PRESENT: PIERRE N. LEVAL,
                 REENA RAGGI,
                 RAYMOND J. LOHIER, JR.,
                                                    Circuit Judges.
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YING JING ZENG,
                                               Plaintiff-Appellant,
                               v.                                              No. 16-3760-cv

UNITED STATES OF AMERICA,
                                              Defendant-Appellee.
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FOR APPELLANT:                                    Ying Jing Zeng, pro se, Bronx, New York.

FOR APPELLEE:                                    Rachel Balaban, Varuni Nelson, Assistant
                                                 United States Attorneys, for Bridget M. Rohde,
                                                 Acting United States Attorney for the Eastern
                                                 District of New York, Brooklyn, New York.

         Appeal from a judgment of the United States District Court for the Eastern District

of New York (Dora L. Irizarry, Chief Judge).
       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on October 7, 2016, is AFFIRMED.

       Appellant Ying Jing Zeng, pro se, sued the United States under the Federal Tort

Claims Act (“FTCA”), 28 U.S.C. §§ 2671–2680, alleging that agents of the Transportation

Security Administration (“TSA”) negligently broke his antique jade dragon during an

outgoing airport baggage inspection at New York’s John F. Kennedy International Airport.

He now appeals from an award of summary judgment to the Government, based on the

district court’s determination that Zeng failed to offer any evidence that the TSA caused

the alleged damage.

       We review an award of summary judgment de novo, construing the evidence in the

light most favorable to the non-moving party and drawing all reasonable inferences and

resolving all ambiguities in that party’s favor. See Townsend v. Benjamin Enters., Inc.,

679 F.3d 41, 47 (2d Cir. 2012). In so doing, we assume the parties’ familiarity with the

underlying facts and procedural history of this case, which we reference only as necessary

to explain our decision to affirm.

       “The FTCA waives the government’s sovereign immunity in actions for money

damages arising out of injury, loss of property, personal injury or death caused by the

‘negligent or wrongful’ act or omission of a government employee ‘while acting within the

scope of his office or employment, under circumstances where the United States, if a

private person, would be liable to the claimant in accordance with the law of the place

where the act or omission occurred.’” Fountain v. Karim, 838 F.3d 129, 135 (2d Cir.

2016) (quoting 28 U.S.C. § 1346(b)(1)). To prevail on a negligence claim in New York,


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“a plaintiff must demonstrate (1) a duty owed by the defendant to the plaintiff, (2) a breach

thereof, and (3) injury proximately resulting therefrom.” Pasternack v. Lab. Corp. of Am.

Holdings, 27 N.Y.3d 817, 825, 37 N.Y.S.3d 750, 755 (2016) (internal quotation marks

omitted). “If there are several possible causes of injury, for one or more of which

defendant is not responsible, plaintiff cannot recover without proving the injury was

sustained wholly or in part by a cause for which the defendant was responsible.” Aegis

Ins. Servs., Inc. v. 7 World Trade Co.., 737 F.3d 166, 179 (2d Cir. 2013) (internal quotation

marks omitted). Zeng cannot make that showing here.

       Undisputed record evidence shows that the box containing the dragon traveled from

New York to Guangzhou, China—with a layover in Hong Kong—over a two-day period.

The box and its contents were inspected by the TSA in New York, and the box was resealed

with TSA-issued tape after the inspection. Only when the dragon arrived at its final

destination in Guangzhou did Zeng notice that it was broken. Zeng admits that he did not

see the New York inspection and that the box was handled thereafter by airport personnel

in both Hong Kong and Guangzhou, as well as by a courier service that delivered the box to

him in Guangzhou. This record shows that a number of actors could have damaged the

dragon, and Zeng cannot point to any evidence showing that the TSA was wholly, or even

partly, responsible.

       For the first time on appeal, Zeng argues that an inference of the TSA’s

responsibility can be drawn from the fact that the TSA tape was intact when the box

containing the dragon was delivered to him in Guangzhou. We generally do not rule on

such belated arguments. See Mhany Mgmt. v. Cty. of Nassau, 819 F.3d 581, 615 (2d Cir.


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2016) (reiterating “well-established general rule that an appellate court will not consider an

issue raised for the first time on appeal,” and will not exercise discretion to do so if

argument was “available to the parties below and they proffer no reason for their failure to

raise” it (internal quotation marks omitted)). Even if Zeng had properly raised this

argument in the district court, it would warrant no different result because no record

evidence indicates that the tape would have had to have been disturbed for the dragon to

have been broken after the TSA inspection.

       Finally, Zeng’s arguments that the TSA and its counsel concealed and fabricated

evidence cannot defeat summary judgment because they are unsupported by any evidence

and wholly speculative. See Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d

290, 319 (2d Cir. 2008) (“Conclusory statements, conjecture, and speculation are

insufficient to create a genuine factual dispute.”).

       We have considered all of Zeng’s remaining arguments and conclude that they are

without merit. Accordingly, we AFFIRM the judgment of the district court.


                                           FOR THE COURT:
                                           Catherine O’Hagan Wolfe, Clerk of Court




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