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Gurzo v. Gregory Park Inc.

Decided: February 14, 1968.

CHRISTINE GURZO AND JAMES GURZO, PLAINTIFFS,
v.
GREGORY PARK, INC. AND/OR GREGORY PARK NO. 1 INC., PUBLIC SERVICE ELECTRIC & GAS COMPANY, A CORP. OF NEW JERSEY, FEDERAL HOUSING ADMINISTRATION AND FEDERAL HOUSING COMMISSIONER, PAUL N. BROWNSTEIN, J.I. KISLAK MANAGEMENT CORP., RECEIVER, CAULDWELL-WINGATE CO. INC., A FOREIGN CORPORATION AUTHORIZED TO DO BUSINESS IN THE STATE OF NEW JERSEY, AND CITY OF JERSEY CITY, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, JOINTLY, SEVERALLY OR IN THE ALTERNATIVE, DEFENDANTS



Lynch J.s.c.

Lynch

[99 NJSuper Page 357] Plaintiff*fn1 sustained injuries in a fall on a public sidewalk. She sues, among others, the Federal Housing Administration (hereinafter F.H.A.) and the Federal Housing Commissioner*fn2 (hereinafter Commissioner) charging that their negligence in maintaining the premises was a cause of her injuries and damages.

Defendants F.H.A. and Commissioner move to dismiss the complaint as to them upon the ground that this court has no jurisdiction. It is their contention that exclusive jurisdiction resides in the United States District Courts under the Federal Tort Claims Act, particularly 28 U.S.C.A. § 1346(b) and § 2679. Plaintiff contends that pursuant to 12 U.S.C.A. § 1702, F.H.A. and Commissioner are subject to "be sued in any court of competent jurisdiction, State or Federal." Alternatively, plaintiff contends that if this suit is held to be cognizable within 28 U.S.C.A. § 1346(b), this court is not to be deprived of jurisdiction unless and until the United States, through the Attorney General, accepts responsibility for the suit and has the case removed to the United States District Court, all pursuant, so it is said, to paragraphs (c) and (d) of 28 U.S.C.A. § 2679. Plaintiff observes that there appears to be no precedent where a state court has dismissed an action such as this and upheld exclusive jurisdiction of the federal courts. Nor does there appear to be any state court decision to the contrary since the adoption of the Federal Tort Claims Act in 1946.

12 U.S.C.A. § 1702 reads:

"* * * The Commissioner [Federal Housing Commissioner] shall * * * be authorized, in his official capacity, to sue and be sued in any court of competent jurisdiction, State or Federal."

28 U.S.C.A. § 2679(a) provides:

"The authority of any federal agency to sue and be sued in its own name shall not be construed to authorize suits against such federal agency on claims which are cognizable under section 1346(b) of this title, and the remedies provided by this title in such cases shall be exclusive."

It is defendants' contention that this negligence suit is one "cognizable under Section 1346(b)" within the meaning of 28 U.S.C.A. § 2679(a); that the amenability of the Commissioner to be sued under 12 U.S.C.A. § 1702, is thereby modified; that exclusive jurisdiction lies in the United

States District Courts under 28 U.S.C.A. § 1346(b), and that dismissal here must follow for lack of jurisdiction in this court.

28 U.S.C.A. § 1346(b), provides:

"Subject to the provisions of chapter 171 of this title, the district courts, together with the United States District Court for the District of the Canal Zone and the District Court of the Virgin Islands, shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government 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."

First, plaintiff argues that section 1346(b) does not apply because the United States is not a defendant here,*fn3 but merely F.H.A. ...


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