The opinion of the court was delivered by: MEANEY
This is an action for damages for personal injuries allegedly sustained on February 20, 1956, while plaintiff was visiting the office of the Internal Revenue Service in Jersey City, New Jersey. The United States has moved for summary judgment, or, in the alternative, for an order reducing the ad damnum clause of the complaint to $ 1,000 or less.
In support of its motion for summary judgment the United States relies upon the statute of limitations applicable to the Federal Tort Claims Act, 28 U.S.C. 2401(b), as it read at all times material to this action:
'(b) A tort claim against the United States shall be forever barred unless action is begun within two years after such claim accrues or within one year after the date of enactment of this amendatory sentence, whichever is later, or unless, if it is a claim not exceeding $ 1,000, it is presented in writing to the appropriate Federal agency within two years after such claim accrues or within one year after the date of enactment of this amendatory sentence, whichever is later. If a claim not exceeding $ 1,000 has been presented in writing to the appropriate Federal agency within that period of time, suit thereon shall not be barred until the expiration of a period of six months after either the date of withdrawal of such claim from the agency or the date of mailing notice by the agency of final disposition of the claim.'
This suit was filed on May 26, 1959, well beyond the two-year period allowed by section 2401(b). However, plaintiff claims that the suit is timely, having been filed within six months of the withdrawal of an alleged administrative claim from the consideration of the Government agency involved, in accordance with the alternative provisions of section 2401(b). The chronology of events must be set out in detail in order to evaluate this contention.
February 20, 1956: Plaintiff was injured in the office of the Internal Revenue Service.
June 11, 1956: Plaintiff filed a Form 95 (claim for damage or injury) which did not set forth any amount claimed for damages.
July 12, 1956: The Form 95 was returned to plaintiff with a letter indicating that it 'cannot be processed in its present form,' i.e., without an amount claimed set forth.
February 21, 1958: Having at this late date retained counsel, plaintiff instituted Civil Action No. 220-58 involving the same parties and subject matter as the instant case.
June 2, 1958 to July 3, 1958: An exchange of correspondence took place between plaintiff's attorney and a representative of the Internal Revenue Service, inquiring and replying as to the status of the alleged claim of June 11, 1956, to wit: The Form 95 had been returned with advice that it could not be processed until an amount of damages claimed was specified.
February 24, 1959: A second Form 95, specifying damages in the amount of $ 5,000, was filed.
March 13, 1959: The second Form 95 was returned with the advice that a Form 95 claiming damages in excess of $ 1,000 could not be processed.
April 14, 1959: The $ 5,000 claim represented by the second Form 95 was formally withdrawn ...