United States District Court, S.D. New York
December 7, 2005.
EMANUEL ZERAFA, Plaintiff,
MONTEFIORE HOSPITAL HOUSING COMPANY, INC., C&D, full name unknown, and THE LOUISVILLE LADDER GROUP, LLC, Defendants.
The opinion of the court was delivered by: WILLIAM CONNER, Senior District Judge
OPINION AND ORDER
Plaintiff Emanuel Zerafa brings this negligence action against
defendants Montefiore Hospital Housing Company, Inc. ("MHHC"),
Louisville Ladder Group, LLC ("Louisville") and C&D (full name
unknown) claiming personal injury. The claim was removed to
federal court by Louisville based on diversity jurisdiction
pursuant to 42 U.S.C. § 1332. Plaintiff moves to remand the claim
based on procedural defects pursuant to FED. R. CIV. P. §
1447(c), and MHHC moves for summary judgment under FED. R. CIV.
P. 56 on the ground that it does not own the property on which
the accident occurred. For the reasons stated herein, Zerafa's
motion to remand is denied and MHHC's motion for summary judgment
I. Procedural History
On April 16, 2002, plaintiff was employed as a housekeeper for
Montefiore Medical Center,*fn1 which occupies a complex of
buildings including 3400 Bainbridge Avenue. (Am. V. Complt. ¶ 20;
Def. Louisville Decl. at 5.)*fn2 While working at 3400
Bainbridge Avenue, an alleged defect in the ladder on which he
was standing caused him to fall, resulting in injury. (Am. V.
Complt. ¶¶ 23, 38-39.) Plaintiff commenced an action in New York
State Supreme Court, Bronx County on May 13, 2003 against MHHC as
the purported owner of 3400 Bainbridge Avenue. (Pl. Mem. Supp.
Mot. Remand at 2.) Plaintiff's belief that MHHC is the owner of
3400 Bainbridge Avenue is based on a record abstract indicating that MHHC is the owner.*fn3
(Id.; Pl. Aff. Opp. Summ. J. ¶ 6, Ex. C.)
MHHC moved in state court for summary judgment and dismissal of
plaintiff's Amended Verified Complaint on the ground that it did
not own 3400 Bainbridge Avenue. (Def. MHHC Aff. Supp. Summ. J. ¶
9.) MHHC insists that Montefiore Medical Center is the legal
owner. (Id.) Justice George D. Salerno denied the motion
without prejudice with leave to renew the motion at the
completion of discovery. (Id. at ¶ 10.) On February 27, 2004,
plaintiff amended his complaint to add Louisville, the alleged
manufacturer of the ladder, as a defendant. (Am. V. Complt. ¶¶
35-47.) On March 3, 2005, after discovery commenced but before it
was completed, MHHC informed Louisville that MHHC planned to
renew its motion for summary judgment. (Def. Louisville Mem. at
2;*fn4 Def. MHHC Aff. Supp. Summ. J., Ex. I ¶ 5.) On March
9, 2005, based on what Louisville perceived as the "inevitable"
dismissal of MHHC from the action, Louisville petitioned for
removal of the action to federal court based on diversity
jurisdiction.*fn5 (Def. Louisville Mem. at 2.) On May 25,
2005, plaintiff moved for remand, at which point MHHC renewed its
motion for summary judgment. II. Property Interest in 3400 Bainbridge Avenue
It is undisputed that the property known as 3400 Bainbridge
Avenue rests on Block 3343, Lot 283 in Bronx, New York. (Pl. Aff.
Opp. Summ. J. ¶¶ 5-6; Def. MHHC Mem. Supp. Summ. J. at 2-3; Def.
Louisville Mem. at 5.) The first known record deed for Block
3343, Lot 283, dated 1910, conveys the property from William H.
Picken and Julia A. Picken to Montefiore Home, a Hospital for
Chronic Invalids and Country Sanitarium for Consumptives
("Montefiore Home"). (Pl. Aff. Opp. Summ. J., Ex. B; Def. MHHC
Mot. Summ. J., Ex. J.) After several official name changes,
Montefiore Home is now Montefiore Medical Center. (Def. MHHC Mot.
Summ. J., Ex. K.)
In 1964, a deed affecting this property (hereinafter "the 1964
deed") was recorded that conveyed a section of Lot 283 from
Montefiore Medical Center to MHHC. (Pl. Aff. Opp. Summ. J., Ex.
C; Def. Louisville Decl., Ex. 3.) In addition, an easement
between Montefiore Medical Center and MHHC (hereinafter "the 1995
easement") was recorded on August 23, 1995, allowing the Medical
Center a nonexclusive, perpetual easement and right-of-way on
MHHC's parcel for construction of a medical arts pavilion and
parking garage. (Pl. Aff. Opp. Summ. J., Ex. D; Def. Louisville
Decl., Ex. 4) The explicit language in the 1995 easement,
describes MHHC's property the burdened parcel as "Lot 300,"
and the parcel owned by Montefiore Medical Center the
benefitted property is described as "Lot 283." (Pl. Aff. Opp.
Summ. J., Ex. D.; Def. Louisville Decl., Ex. 4.) Attached to the
1995 easement is the metes and bounds description of "Lot 300."
(Pl. Aff. Opp. Summ. J., Ex. D.; Def. Louisville Decl., Ex. 4.)
This description matches the legal description of the property
conveyed to MHHC in the 1964 deed. (See Pl. Aff. Opp. Summ. J.
¶ 6, Exs. C, D; Def. Louisville Decl. ¶ 27, Exs. 3, 4.) A survey
of Block 3343, Lot 283 conducted in August 1999, and certified to
the United States Department of Housing and Urban Development by Harwood Surveying, P.C., indicates two lots on Block 3343: Lot
283 and Lot 300. (Def. MHHC Aff.Supp. Summ. J. ¶ 19, Ex. M.)
I. Motion to Remand
A. Standard of Review
A cause of action originally filed in state court may be
removed by a defendant to federal court where "the district
courts of the United States have original jurisdiction."
28 U.S.C. § 1441(a). For removal to be considered proper, the
removing party must demonstrate that the federal court is endowed
with the requisite subject matter jurisdiction. See Caterpillar
v. Williams, 482 U.S. 386, 391-92 (1987). Removal jurisdiction
is strictly construed inasmuch as it implicates significant
federalism concerns and abridges the deference courts generally
give to a plaintiff's choice of forum. See id.; see also
Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 109 (1941)
("Due regard for the rightful independence of state governments,
which should actuate federal courts, requires that they
scrupulously confine their own jurisdiction to the precise limits
which the statute has defined."); In re NASDAQ Mkt. Makers
Antitrust Litig., 929 F. Supp. 174, 178 (S.D.N.Y. 1996)
("Removal jurisdiction must be strictly construed, both because
the federal courts are courts of limited jurisdiction and because
removal of a case implicates significant federalism concerns.").
The removing party bears the burden of establishing that removal
is proper. See Avon Prods., Inc. v. The A/J P'ship, Nos. 89
Civ. 3743, 89 Civ. 8032, 1990 WL 422416, at *1 (S.D.N.Y. Mar. 1,
1990); Fisher v. Bldg. Servs. 32-B-J Health Fund, No. 96 Civ.
4317, 1997 WL 590843, at *2 (S.D.N.Y. Sept. 22, 1997); Still v.
DeBuono, 927 F. Supp. 125, 129 (S.D.N.Y. 1996). A federal court has subject matter jurisdiction when complete
diversity exists between the parties and the amount in
controversy exceeds $75,000. See 28 U.S.C. § 1332. "It is a
fundamental principal [sic] of law that whether subject matter
jurisdiction exists is a question answered by looking to the
complaint as it existed at the time the petition for removal was
filed." Hill v. Delta Int'l Mach. Corp., 386 F. Supp. 2d 427,
429 (S.D.N.Y. 2005) (citing Collins v. Dartmouth Plan, Inc.,
646 F. Supp. 244, 245 (D. Conn. 1986)).
B. Nominal Parties
Complete diversity does not appear to exist in this case.
Plaintiff is a citizen of New York. Louisville is a Delaware
Corporation with its principal place of business in Kentucky. The
presence of MHHC, a nonprofit corporation organized under New
York law with its principal place of business in New York,
appears to destroy diversity.
However, in determining if diversity exists, courts disregard
the presence of nominal parties. A party is deemed nominal if,
based on the substantive law of the state where the federal court
sits, no cause of action could be stated against him. See Saxe,
Bacon & Bolan, P.C. v. Martindale-Hubbell, Inc.,
521 F.Supp. 1046, 1048 (S.D.N.Y. 1981). The burden of proving a party is
nominal falls on the party who is claiming nominal status. Id.
Under New York law, to be held liable for a dangerous property
defect, the defendant must own, occupy, control or have special
use of the premises on which the accident occurred. Balsam v.
Delma Eng'g Corp., 139 A.D.2d 292, 296, 532 N.Y.S.2d 105, 108
(1st Dep't 1998) (citing Gilbert Props. v. City of New York,
33 A.D.2d 175, 178, 305 N.Y.S.2d 650, 653 (1st Dep't 1969), aff'd,
27 N.Y.2d 594, 261 N.E.2d 406, 313 N.Y.S.2d 408 (N.Y. 1970)). If
any one of these factors is met, the defendant may be held liable for the dangerous condition. See
Balsam, 532 N.Y.S.2d at 108. However, "[w]here none [of the
elements are] present, a party cannot be held liable for injury
caused by the defective or dangerous condition of the property."
Id. A deed may be offered to establish proof of ownership. See
People v. Scandore, 3 N.Y.2d 681, 684, 148 N.E.2d 872, 873,
171 N.Y.S.2d 808, 810 (N.Y. 1958) (finding a dated and recorded deed
granting property at issue to defendant years before incident
occurred was sufficient proof of ownership under "well
established presumption of continuance of ownership" and
indicating that this "is the customary way of establishing prima
facie the ownership of real property" (citations omitted)).
Plaintiff argues only that the ownership element is at issue
and both parties have provided evidence regarding ownership. An
instrument that creates or transfers an interest in real estate
"must be construed according to the intent of the parties, so far
as such intent can be gathered from the whole instrument, and is
consistent with the rules of law." N.Y. REAL PROP. LAW § 240(3)
(McKinney's 1989); see Modrzynski v. Wolfer, 234 A.D.2d 901,
902, 651 N.Y.S.2d 782, 783 (4th Dep't 1996). "The settled rule
for the construction of such instruments is that all evidence
must be excluded which is offered `to vary, explain or contradict
a written instrument that was complete in itself and without
ambiguity in its terms' since, when words in a deed `have a
definite and precise meaning, it is not permissible to go
elsewhere in search of conjecture in order to restrict or extend
the meaning.'" Loch Sheldrake Assocs., Inc. v. Evans,
306 N.Y. 297, 305, 118 N.E.2d 444, 447 (N.Y. 1954) (quoting Uihlein v.
Matthews, 172 N.Y. 154, 159, 64 N.E. 792, 794 (N.Y. 1902)). A
property description is adequate if it allows the property to be
ascertained with a reasonable degree of certainty. See Town of
Brookhaven v. Dinos, 76 A.D.2d 555, 561, 431 N.Y.S.2d 567, 571
(2d Dep't 1980) (citing Pope v. Levy, 54 A.D. 495, 497,
66 N.Y.S. 1028, 1028 (1st Dep't 1900)). The description will be considered adequate even if a survey of the
land is required to locate the property. See id.
Here, several documents, including two recorded deeds and a
recorded easement, have been submitted to this Court concerning
the ownership of 3400 Bainbridge Avenue.*fn6 (Pl. Aff. Opp.
Summ. J., Exs. B-E; Def. MHHC Aff. Supp. Summ. J., Exs. J-O; Def.
Louisville Decl., Exs. 1, 3-4.) Plaintiff asserts that the 1964
deed conveys all of Block 3343, Lot 283 to MHHC. We do not agree.
The cover of that 1964 deed indicates that "[t]he land affected
by . . . the instrument lies in . . . Block 3343." (Pl. Aff. Opp.
Summ. J., Ex. C.) Lot 283 in Block 3343 was indeed "affected" by
the conveyance. However, only a section of that property was
deeded to MHHC. The detailed legal description, in metes and
bounds, clearly describes a property smaller than the entirety of
Lot 283. Although the deeded plot is not referred to as Lot 300,
no such identification is necessary. Known monuments and
landmarks may be employed as points of reference in describing a
property in a deed. Dinos, 76 A.D.2d at 562. Where other
methods are inadequate, the property may be described by
reference to a map. Id. When this is done, the filed map
becomes part of the description in the deed. Id. Here, no map
is necessary because the 1964 deed provides a precise metes and
bounds description of the property using streets as points of
reference.*fn7 This same description is attached to the 1995 easement as the description of the property to be
burdened. This result is consistent with the survey map. The map
clearly indicates Block 3343 contains two lots: Lot 283 and Lot
300. The property description in the 1964 deed matches Lot
300*fn8 as depicted on the survey map.
Since the evidence demonstrates that Montefiore Medical Center,
not MHHC, owned the property known as 3400 Bainbridge Avenue,
under New York law, no cause of action can be stated against
MHHC. Plaintiffs have presented no evidence that MHHC operated,
controlled, or specially used the property. MHHC is, therefore, a
nominal defendant, and their citizenship, for diversity purposes,
need not be considered. Accordingly, there is complete diversity
between the real parties.
While §§ 1441 and 1446 permit removal to federal court in
certain circumstances, § 1447(c) allows for remand on the basis
of any defect in the removal procedure or for lack of subject
matter jurisdiction. See LaFarge Coppee v. Venezolana De
Cementos, S.A.C.A., 31 F.3d 70, 72 (2d Cir. 1994). "All doubts
should be resolved in favor of remand." Leslie v. BancTec Serv.
Corp., 928 F. Supp. 341, 347 (S.D.N.Y. 1996) (internal
quotations and citations omitted); see also Boyer v. Snap-On
Tools Corp., 913 F.2d 108 (3d Cir. 1990); Town of Moreau v. New
York State Dep't of Envtl. Conservation, No. 96 Civ. 983, 1997
WL 243258, at *1 (N.D.N.Y. May 5, 1997) (citing Leslie, 928 F. Supp. at 347).
Plaintiff argues that Louisville's removal was untimely. (Pl.
Mem. Supp. Mot. Remand, at 3.) Section 1446(b) provides that an
action may not be removed to federal court on the basis of
diversity jurisdiction more than one year after the action has
been commenced. See 42 U.S.C. § 1446(b). Plaintiff submits that
"[i]t is not clear from the case law whether the deadline [is]
jurisdictional." (Pl. Mem. Supp. Mot. Remand at 5.) Indeed, there
is conflicting case law as to whether this provision is a
procedural or jurisdictional requirement. See Barnes v.
Westinghouse Elec. Corp., 962 F.2d 513 (5th Cir. 1992), cert.
denied, 506 U.S. 999 (1992); Brock v. Syntex Labs., Inc.,
7 F.3d 232 (6th Cir. 1993); Torah Soft Ltd. v. Drosnin, No. 00
Civ. 0676, 2003 WL 22077414, at *4 (S.D.N.Y. Sept. 8, 2003). The
distinction is significant: if § 1446(b) is procedural then "the
plaintiff must have moved to remand `within 30 days after the
filing of the notice of removal' or his right to challenge the
removal on the ground is waived. On the other hand, if this
provision is classified as jurisdictional, the plaintiff may seek
to remand at any time." Torah Soft, 2003 WL 22077414, at *4
(citing 42 U.S.C. § 1447(c)).
The Second Circuit has not ruled on this particular aspect of §
1446(b); however, district courts in this Circuit have found the
time limitation to be procedural. Hill, 386 F. Supp. 2d at 430;
Torah Soft, 2003 WL 22077414, at *4. In Pierpoint v. Barnes,
the Second Circuit determined that the term "a defect in
procedure" in 42 U.S.C. § 1447(c)*fn9 was intended by
Congress to be "interpreted broadly in order to subject a wide
range of remand motions to the 30-day limit." 94 F.3d 813, 817 (2d Cir. 1996). In light of this instruction, Southern District
courts have determined that § 1446(b)'s one-year time limitation
is procedural; therefore, plaintiff must move for remand within
thirty days of removal or the untimeliness of removal is waived.
Torah Soft, 2003 WL 22077414, at *4. We see no reason to
deviate from this reasoning.
The action against Louisville commenced on February 27, 2004.
(Pl. Mem. Supp. Mot. Remand at 4; Def. MHHC Mem. Supp. Summ. J.
at 2.) The one-year time period for removal of the case to
federal court began to run on that date. The petition to remove
was not filed until March 9, 2005, past the one-year removal
deadline. (Def. Louisville Mem. at 2.) After the case was removed
plaintiff had 30 days to remand the case. Plaintiff sought remand
on May 4, 2005, after the 30-day time limit had
expired.*fn10 This delay constitutes a waiver of the defect
in removal procedure.
Generally, for removal to be proper, all named defendants must
join in the removal petition. Still, 927 F. Supp. at 129,
aff'd on other grounds, 101 F.3d 888 (2d Cir. 1996). This
requirement is known as "the rule of unanimity," and it "advances
the congressional purpose of giving deference to a plaintiff's
choice of a state forum and of resolving doubts against removal
in favor of remand." Miller v. First Sec. Invs., Inc.,
30 F.Supp. 2d 347, 350 (E.D.N.Y. 1998) (quoting Ogletree v.
Barnes, 851 F.Supp. 184, 187 (E.D.Pa. 1994)); see Phoenix
Global Ventures, Inc. v. Phoenix Hotel Assocs., Ltd., No. 04
Civ. 4991, 2004 WL 2360033, at *3 (S.D.N.Y. Oct. 19, 2004);
Smith v. Kinkead, No. 03 Civ. 10283, 2004 WL 728542, at *2 (S.D.N.Y. Apr. 5, 2004). A
removed case must be remanded unless all defendants join the
removal petition. See Forum Ins. Co. v. Texarkoma Crude & Gas
Co., No. 92 Civ. 8602, 1993 WL 228023, at *2 (S.D.N.Y. June 22,
1993). An exception to the general requirement occurs where the
nonjoining defendant is nominal.*fn11 Ell v. S.E.T.
Landscape Design, Inc., 34 F.Supp. 2d 188, 193 (S.D.N.Y. 1999).
Under such circumstances, the nominal defendant's consent is not
required for unanimity. See id. As previously discussed,
infra Part I.B., MHHC is a nominal defendant. As a result,
MHHC's consent was not necessary to remove this action to federal
II. Motion for Summary Judgment
Also before this Court is MHHC's motion for summary judgment.
Summary judgment is appropriate if "the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law." FED. R. CIV. P. 56(d). A genuine
issue for trial exists if, based on the record as a whole, a
reasonable jury could find in favor of the non-moving party. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). On a
motion for summary judgment, all evidence must be viewed and all
inferences must be drawn in the light most favorable to the
non-moving party. See City of Yonkers v. Otis Elevator Co.,
844 F.2d 42, 45 (2d Cir. 1988).
The party seeking summary judgment bears the initial burden of
"informing the district court of the basis for its motion" and
identifying the matter "it believes demonstrate[s] the absence of
a genuine issue of material fact." Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). If the movant satisfies this
requirement, the burden shifts to the non-moving party to "set
forth specific facts showing that there is a genuine issue for
trial." Anderson, 477 U.S. at 250. At this stage, the nonmoving
party "must do more than simply show that there is some
metaphysical doubt as to the material facts." Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Bald
assertions or conjecture unsupported by evidence are insufficient
to overcome a motion for summary judgment. See Carey v.
Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991); W. World Ins. Co. v.
Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990).
As discussed infra Part I.B., MHHC has demonstrated that it
is not a proper party to this action. Viewing the evidence in the
light most favorable to the plaintiff,*fn12 as is required
in determining whether to grant summary judgment, it is clear that
no claim can be raised against MHHC. Accordingly, its motion for
summary judgment must be granted.
For all of the foregoing reasons, defendant Montefiore Hospital
Housing Company's ("MHHC") motion for summary judgment is granted
and plaintiff Emmanuel Zerafa's motion to remand in denied. The
action is dismissed in its entirety with prejudice as to MHHC and
with taxable costs.
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