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June 26, 1978

ARTHUR I. TRAGER, as Administrator c.t.a. of the Estate of GLORIA LAURA SCHIMBERG, deceased, Plaintiff,

The opinion of the court was delivered by: POLLACK

MILTON POLLACK, District Judge.

Defendants, New Rochelle Hospital Medical Center and Dr. John J. Zellinger, citizens of New York, move to dismiss this attempted diversity action, pursuant to Fed. R. Civ. P. 12(b)(1), for lack of a genuine basis for invoking federal diversity jurisdiction in the premises.

 The plaintiff, Arthur Trager, is one of the brothers of the decedent, Gloria Schimberg. He resides in Florida and operates a business there as a fishing boat captain. He was named in Westchester County as administrator c.t.a. under his sister's will after the designated representatives renounced and he then brought this suit charging defendants with alleged medical malpractise resulting in her wrongful death.

 The moving parties contend that the plaintiff's litigating status is thoroughly unnatural and was contrived for the purpose of manufacturing diversity of citizenship and thus entry into federal court contrary to 28 U.S.C. § 1359 in what plainly is a suit to be litigated, if at all, in the Courts of the State of New York.

 There is no doubt in the Court's mind that this suit ought not be maintained under our federal diversity jurisdiction privileges. 28 U.S.C. § 1332. The circumstances are as follows.

 The decedent, Gloria Schimberg, died a resident of Westchester County in New York on March 7, 1976. She was survived in her immediate family by her husband David Schimberg, to whom she had been married for 26 years, by their son Michael and their daughter Lisa Ann.

 The Schimbergs, New York residents, owned and lived in a home in New Rochelle. David S0chimberg is a businessman and operates the Dejay Camera Store in Mount Vernon, New York, in partnership with his brother. Michael Schimberg, now of adult age, is a dental student at New York University Dental School. Lisa Ann is still a minor.

 In addition to this immediate family, the decedent is survived by two brothers, David Trager of New York and Arthur Trager of Florida.

 Gloria Trager died testate. Her last will and testament was witnessed by two residents of Hartsdale, New York and dated February 5, 1965. The will names as her sole executor her husband David Schimberg and as an alternate executor she named her brother, David Trager, neither representative to be required to furnish bond. Arthur Trager is not mentioned in the will in any way. The will provides that the entire estate is left to her husband, David Schimberg, after the payment of debts and funeral expenses.

 The will was filed in the Surrogate's Court, Westchester County on May 12, 1976, two months after the death of the testatrix. The designation sheet estimates the value of the estate at $10,000. There was no suggestion of the existence of further or contingent assets or the prospect of a malpractise lawsuit in the offing.

 The husband, David Schimberg, and decedent's brother, David Trager, executed and filed renuciations of their designations as executor and alternate executor respectively and Michael Trager filed a waiver of notice and consent to probate. Each, however, suggested in their papers that Arthur Trager be named administrator, c.t.a., without requirement of bond. Arthur Trager filed an affidavit stating that the decedent had no siblings other than himself and David Trager.

 None of the papers submitted to the Surrogate mentioned a purpose to bring a malpractise suit, or to set up a seeming diversity of citizenship situation for a federal suit, or gave any expressed motive for the renuciations or the selection of a Florida representative of what appeared a minimal local estate to administer which Arthur would have to retain local New York counsel.

 The petition to name Arthur Trager as administrator c.t.a. was granted and the will was admitted to probate on July 7, 1976. Arthur Trager then employed a New York lawyer and this lawsuit was filed on April 8, 1977 grounded on alleged diversity of citizenship of the parties and the existence of the requisite amount in controversy.

 The papers in opposition to the pending motion attempt explanations for plaintiff's appointment as administrator c.t.a. and denials that it was for the ...

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