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Mohammed Bhatti, Harris v. Sean Pettigrew and Henry

April 2, 2012

MOHAMMED BHATTI, HARRIS,
PLAINTIFF,
v.
SEAN PETTIGREW AND HENRY SHERMAN
DEFENDANTS.



The opinion of the court was delivered by: J. Paul Oetken, District Judge:

MEMORANDUM AND ORDER

Presently before the Court is Plaintiff's motion to remand this matter to the Supreme Court of the State of New York, Bronx County.

Plaintiff Mohammed Bhatti, individually and as the proposed administrator of the estate of Rizwana Bhatti, deceased, commenced this action on January 19, 2011, in New York Supreme Court, Bronx County. Plaintiff seeks damages arising from an accident that took place on October 14, 2010, in the Bronx, New York, in which pedestrian Rizwana Bhatti was struck by a vehicle allegedly driven by Defendant Sean Pettigrew and owned by Defendant Henry Sherman Harris.

On February 15, 2011, Defendants removed the action to this Court based on alleged diversity of citizenship under 28 U.S.C. § 1332(a). (Dkt. No. 1.) Defendants allege that complete diversity exists because Mr. Harris was and is a citizen of the State of Georgia, not New York as Plaintiff alleges.*fn1 During a status conference on March 10, 2011, Judge Paul A. Crotty, to whom this matter was previously assigned, ordered a period of limited discovery with respect to the residence of Mr. Harris. Plaintiff deposed Mr. Harris on May 12, 2011. On September 30, 2011, this matter was reassigned to the undersigned. On October 12, 2011, Plaintiff filed the instant motion to remand this action to state court on the ground that Mr. Harris was actually a citizen of the State of New York, not a citizen of Georgia, at the time this action was commenced.

For the reasons discussed below, Plaintiff's motion to remand this action to state court is granted.

I.Background

Mr. Harris was born in Georgia. His father owns a house in Macon, Georgia, where Mr. Harris at least occasionally resides (the "Georgia house"). Mr. Harris claims that the Georgia house is his permanent home and his domicile for the purposes of the present action. (Deposition of Henry Sherman Harris, May 12, 2011 ("Harris Dep."), attached to Declaration of Jean M. Prabhu ("Prabhu Decl.") 3:13-14; Defendants' Memorandum of Law in Opposition to Plaintiff's Motion to Remand to State Court, p. 1.)

Mr. Harris was arrested in New York in approximately 2001 and sentenced to ten years in prison. (Harris Dep. 36:5-35.) Mr. Harris spent nine years incarcerated in various state facilities in New York State. (Harris Dep. 35:6-10.) On August 31, 2008, Mr. Harris was released and began serving an eighteen-month period of parole. (Harris Dep. 37:23-38:9.) He registered for parole at 278 W. 118th Street, Apt. 44B, New York, New York (the "New York apartment"), an apartment rented by Mr. Harris's girlfriend, Ms. Regina Keith. (Harris Dep. 41:17-20.) As a condition of parole, Mr. Harris was required to remain in the State of New York. (Harris Dep. 49:25-50:4.)

During the period of his parole, Mr. Harris received rental assistance from New York City. The rental assistance payments were made directly to Ms. Keith. Mr. Harris also received food stamps and Medicaid benefits from New York City. (Harris Dep. 53:7-23.)

Mr. Harris completed his period of parole in January 2010. (Harris Dep. 49:23-24.) He asserts that he moved back to Macon, Georgia in March 2010. (Harris Dep. 50:17-51:3.) Mr. Harris relinquished his New York driver's license and obtained a Georgia license in May of 2010. (Harris Dep. 90:4-15.) He also obtained vehicle insurance in Georgia and changed the registration of his trucking business, Going Your Way Transport, to the Georgia house in May 2010.

Mr. Harris's rental assistance from New York ceased upon the completion of his parole. However, Mr. Harris continued to receive food stamps and Medicaid benefits from New York City through the time of his deposition on May 12, 2011 (although he stated that he did not intend to reapply for these benefits in New York).*fn2

Mr. Harris contends that he comes to New York approximately five times a month, as a result of his trucking work. (Harris Dep. 92:2-5; 93:5-8.) When he is in New York City he stays at the New York apartment with his girlfriend, Ms. Keith. (Harris Dep. 93:12-14.) Mr. Harris receives mail at the New York apartment, including all of his bank statements and credit card statements. (Harris Dep. 106:10-14.) Mr. Harris visits doctors in New York City as a result of an accident in which he was involved, which occurred in New Jersey on April 5, 2011. (Harris Dep. 144:11-22; 147:8-9.) Mr. Harris has a primary care physician and a physical therapist located in New York, as well as a New York-based lawyer representing him in connection with the New Jersey accident. (Harris Dep. 107:25-108:10; 149:18-150:22.) During his May 12, 2011 deposition, Mr. Harris stated that he intends to continue his physical therapy in New York City.*fn3 (Harris Dep. 173:22-174:5.)

Mr. Harris has a sister who lives in Georgia, and a brother who lives, at least partially, with a girlfriend in the Bronx, New York. (Harris Dep. 14:11-15:9; 132:2-12.) Although Mr. Harris initially stated that he resided with his father in Georgia, there is evidence that Mr. Harris's father maintains an apartment in the Bronx, which he shares with his girlfriend of thirty years. (Harris Dep. 6:25-8:2; 16:21-17:12; 143:8-20.) From the mid-1970s through the mid-2000s, Mr. Harris's father operated a produce and grocery store in the Bronx, where Mr. Harris occasionally worked prior to his incarceration. (Harris Dep. 116:17-117:12; 119:6-16.) During his ...


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