Brown v. United States of America et al, No. 1:2004cv03938 - Document 123 (E.D.N.Y. 2009)

Court Description: MEMORANDUM AND OPINION: The Court finds in favor of defendant. Under the discretionary function exception to the Federal Tort Claims Act, the Court finds that it is without subject matter jurisdiction to consider plaintiff's claim. Even if the Court had jurisdiction, however, the Court finds that plaintiff has failed to establish by a preponderance of the evidence that there was a sandbar present on the day of his injury or that he struck his head on a sandbar. So Ordered by Magistrate Judge Cheryl L. Pollak on 10/1/2009. (Zuckerman, Michael)