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Richard C. Olivadoti v. 290 Riverside Co.

May 8, 2012

RICHARD C. OLIVADOTI, PLAINTIFF,
v.
290 RIVERSIDE CO., LLC, DEFENDANT.



The opinion of the court was delivered by: Paul A. Engelmayer, District Judge:

OPINION & ORDER

Pro se plaintiff Richard C. Olivadoti brings this action against his landlord, defendant 290 Riverside Co., LLC ("290 Riverside"). In his Amended Complaint, plaintiff brings 16 causes of action, stemming from his alleged exposure to mold, lead paint, and asbestos during the course of his tenancy, as well as from defendant's alleged failure to provide notice of repairs to plaintiff. Plaintiff seeks $1.2 million in medical and emotional damages.

Presently pending before the Court is defendant's motion to dismiss the Amended Complaint, under Federal Rules of Civil Procedure 12(b)(1), for lack of subject matter jurisdiction, and 12(b)(5), for insufficient service of process. For the reasons that follow, defendant's motion to dismiss is granted.

I. Factual Background*fn1

Plaintiff is a tenant in a building owned by 290 Riverside. The events alleged in his Amended Complaint took place between August 2009 and February 2012. Plaintiff alleges there are lead paint, mold, and asbestos in his apartment and apartment building. He claims that he repeatedly informed defendant of these conditions, and the attendant health hazards, but that 290 Riverside did not take action in response to his complaints. When 290 Riverside did perform renovations in the building, he alleges it did not provide notice to residents and did not perform the work with due care. Plaintiff also alleges that, on November 28, 2011, defendant willfully and knowingly contaminated his apartment with asbestos while defendant was performing repairs to the heating system. Plaintiff alleges that chunks of material found in a towel in his apartment in the area where 290 Riverside was doing work were brought to a lab and confirmed to be asbestos. He also alleges that, on December 6, 2011, he had an on-site inspection performed, which likewise confirmed the existence of asbestos and mold contamination in his apartment. Plaintiff alleges that he informed defendant of these positive test results in a letter, but 290 Riverside did not take action in response, except that on January 13, 2012, the building superintendent attempted to visit his apartment, but plaintiff denied him access.

II. Procedural History

On January 18, 2012, plaintiff commenced this action. On February 7, 2012, 290 Riverside filed a timely motion to dismiss the Complaint, pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(5). On February 27, 2012, plaintiff exercised his option, available under this Court's individual rules, to file an Amended Complaint in response to defendant's motion to dismiss. On March 20, 2012, defendant filed a timely motion to dismiss the Amended Complaint, again pursuant to Rules 12(b)(1) and 12(b)(5). On April 17, 2012, that motion became fully briefed. On April 23, 2012, plaintiff filed a brief styled as motion to deny defendant's motion to dismiss and to uphold the Amended Complaint. On April 26, 2012, defendant filed a response to that motion.

III. Discussion

A.Subject Matter Jurisdiction

The Court first considers defendant's argument to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction.

"Determining the existence of subject matter jurisdiction is a threshold inquiry and a claim is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Zahl v. Kosovsky, No. 08-cv-8308, 2011 U.S. Dist. LEXIS 22028, at *14 (S.D.N.Y. Mar. 3, 2011) (quoting Arar v. Ashcroft, 532 F.3d 157, 168 (2d Cir. 2008)) (internal quotation marks omitted). A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that jurisdiction exists. Giammatteo v. Newton, 452 F. App'x 24, 27 (2d Cir. 2011).

Because plaintiff is proceeding pro se, the Court must "construe liberally" his complaint and any further pleadings, and "interpret them to raise the strongest arguments that they suggest." Cold Stone Creamery, Inc. v. Gorman, 361 F. App'x 282, 286 (2d Cir. 2010) [sum. order] (internal quotation marks and citation omitted). However, the Court is not at liberty to analyze subject matter jurisdiction under an accommodating standard, regardless of plaintiff's pro se status. See Alexander v. Sandoval, 532 U.S. 275, 286-87 (2001) ("Without [statutory intent], a cause of action does not exist and courts may not create one, no matter how desirable that might be as a policy matter, or how compatible with the statute.").

In determining subject matter jurisdiction, the Court analyzes whether there is diversity jurisdiction, which exists when a lawsuit is between parties of diverse state citizenship and exceeds the required jurisdictional amount, currently $75,000, or federal question jurisdiction, which exists where a plaintiff has pleaded a colorable claim "arising under" the Constitution or laws of the United States. U.S. CONST. art. III, § 2; 28 U.S.C. § 1332(a); Da Silva v. Kinsho Int'l Corp., 229 F.3d 358, 363 (2d Cir. 2000). Here, plaintiff does not assert diversity jurisdiction, nor does it exist, inasmuch as both plaintiff and defendant are residents of New York State. To determine if it has subject matter jurisdiction, the Court must therefore determine whether any of plaintiff's claims arise under the Constitution or laws of the ...


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