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SANIAL v. BOSSOREALE

April 21, 1967

Catherine E. SANIAL, as Administratrix of the goods, chattels and credits of Thomas G. Sanial, Deceased, Plaintiff,
v.
Anthony S. BOSSOREALE, Republic Aviation Corp., Joseph E. Woodward, and Zaidee B. Evans, as Administratrix of the Estate of Harold Evans, also known as Henry David Evans, Deceased, Defendants



The opinion of the court was delivered by: MOTLEY

MEMORANDUM OPINION ON MOTION TO DISMISS

 MOTLEY, District Judge.

 All defendants in this action for personal injuries, pain and suffering, and wrongful death have moved to dismiss. The single ground of the motion is that, there being no diversity of citizenship between plaintiff and defendants, this court is without jurisdiction. This suit, brought by plaintiff as administratrix of the goods, chattels and credits of her deceased husband, is predicated wholly upon diversity jurisdiction. Title 28 U.S.C. § 1332. Defendants moved for a preliminary hearing of their motion pursuant to the provisions of Rule 12(d) Fed.R.Civ.P. The former motion was granted. A hearing was held on April 3 and 4, 1967.

 As a result of that hearing, this court finds that plaintiff, who filed this action one month after she moved from New York to Maryland, was at the time of commencement of the action, a citizen of New York; that plaintiff moved to Maryland for a fixed, temporary period of time with the intention, at all times, of returning to New York at the end of that period; and that plaintiff never intended to abandon New York as her permanent domicile. It is not disputed that all defendants are citizens of New York. The fact that plaintiff was not a citizen of Maryland but a citizen of New York at the time this action was commenced means that there is lacking the requisite diversity of citizenship which would give this court jurisdiction. The complaint must, therefore, be dismissed. *fn1"

 The facts and the law upon which the foregoing findings and conclusions are based are set forth below.

 Plaintiff and her deceased husband purchased a home in Setauket, Suffolk County, New York in 1958 or 1959. Plaintiff has voted every year in elections held in Suffolk County from 1958 through the last election held in 1966.

 On December 12, 1961, plaintiff's husband was killed in his automobile in an accident involving other vehicles owned or operated by defendants. Plaintiff alleges in her complaint here that her husband's death was the result of the negligence of defendants in the operation of their vehicles. *fn2"

 On February 12, 1962, plaintiff applied for a teaching position in the Setauket schools. On the same date, she wrote the supervising principal as follows:

 
My heartfelt thanks for your gracious interview. You have given me much encouragement.
 
I do believe my original decision about starting in 1963 is the correct one for me to make, and I hope you may have an opening for me at that time. I have given serious thought to your kind observation that it might be well for me to keep busy professionally - next year, but I feel that my obligation to my children is even more strongly defined now, and since it will be possible for me to remain with Mary for her last year at home, I should like to do so. I think my husband would want it his way.
 
In the meantime, perhaps any existing course requirements can be removed. My transcripts have been forwarded for re-evaluation as you suggested.
 
Again, I thank you for seeing me.

 In the summer of 1962, plaintiff went to Europe for two months.

 Thereafter, on December 7, 1962, plaintiff signed and returned, as directed, the original and one copy of a Notice of Salary sent her by the school clerk. This document notified plaintiff of what her salary would be for the school year 1963 to 1964. Subsequently, on December 10, 1962, the supervising principal notified plaintiff, by letter, that she was being recommended for appointment to the Setauket School staff, "at the salary indicated on the enclosed contract." Plaintiff was directed to sign both copies of the contract and return same to the Setauket School Board for its signature at the next Board meeting on January 3, 1963. By letter dated January 3, 1963, the supervising principal notified plaintiff that she had been hired by the Board for the 1963-1964 school year. Then, on January ...


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