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Battaglia v. Shore Parkway Owner LLC

United States District Court, E.D. New York

April 12, 2017



          Brian M. Cogan U.S.D.J.

         Plaintiff Karen Battaglia filed this simple negligence action in state court against defendants for injuries she allegedly sustained when she slipped and fell at defendants' movie theater. Defendants removed this case from state court, invoking this Court's federal jurisdiction, specifically diversity jurisdiction, alleging that even though defendant Shore Parkway Owner LLC (“Shore Parkway”) and plaintiff are both New York citizens, Shore Parkway does not destroy the otherwise complete diversity in this case because plaintiff has no claim against it under New York law.


         Shore Parkway, a New York limited liability company, is the owner and landlord of the movie theater where plaintiff allegedly slipped and fell. Prior to plaintiff's injury, Shore Parkway had leased the movie theater to defendant United Artists Theater Circuit, Inc. (“United Artists”). The lease was then assigned to defendant Regal Cinemas, Inc. (“Regal Cinemas”), a Delaware corporation with its principal place of business in Tennessee, when United Artists merged into Regal Cinemas.

         The lease provides that the tenant is responsible for maintaining and making any necessary repairs to the movie theater. However, the lease also grants the landlord, Shore Parkway, “free access” to the movie theater “for the purpose of examining the [premises] or to make necessary repairs . . . .”

         Plaintiff, a New York citizen, alleges that in September 2016 she slipped and fell at the movie theater. She alleges that she suffered serious injuries and damages in the amount of five million dollars.


         A court may remand a removed case to state court sua sponte and absent a motion from the plaintiff if it finds its subject matter jurisdiction lacking. See 28 U.S.C. § 1447(c); Mitskovski v. Buffalo and Fort Erie Public Bridge Auth., 435 F.3d 127, 131 (2d Cir. 2006). A defendant seeking to remove a plaintiff's suit to federal court bears “the burden of establishing that the requirements for diversity jurisdiction [are] met.” Mehlenbacher v. Akzo Nobel Salt, Inc., 215 F.3d 291, 296 (2d Cir. 2000). Federal courts only have diversity jurisdiction when there is complete diversity between the parties - that is, when all plaintiffs are citizens of different states from all defendants. See 28 U.S.C. § 1332; Lincoln Prop. Co. v. Roche, 546 U.S. 81, 89 (2005). This means that if any plaintiff is a citizen of the same state as any defendant, complete diversity does not exist, and diversity jurisdiction is lacking. However, “a plaintiff may not defeat a federal court's diversity jurisdiction and a defendant's right of removal by merely joining as defendants parties with no real connection with the controversy.” Pampillonia v. RJR Nabisco, Inc., 138 F.3d 459, 460-61 (2d Cir. 1998). Additionally, the amount in controversy must exceed $75, 000. 28 U.S.C. § 1332(a).

         Defendants admit that there is no diversity jurisdiction over this case if Shore Parkway is a proper defendant. However, defendants allege that plaintiff “fraudulently” joined Shore Parkway to defeat diversity jurisdiction, because, in its absence, there would be complete diversity. In order to show that plaintiff's naming of Shore Parkway, a non-diverse defendant, was a “fraudulent joinder” effected to defeat diversity, defendants must demonstrate, by clear and convincing evidence, “either that there has been outright fraud committed in . . . plaintiff's pleadings, or that there is no possibility, based on the pleadings, that . . . plaintiff can state a cause of action against [Shore Parkway] in state court.” Pampillonia, 138 F.3d at 461. This is a “heavy burden, ” on defendants. Id.

         To determine whether plaintiff asserted a viable claim against Shore Parkway in state court based on the allegations in the pleading, the Court must apply New York's liberal pleading standard. MBIA Ins. Corp. v. Royal Bank of Canada, 706 F.Supp.2d 380, 394 (S.D.N.Y. 2009) (explaining that under New York's liberal pleading rules, plaintiff need only provide “basic information concerning the nature of plaintiff's claim and the relief sought”) (quoting Parker v. Mack, 61 N.Y.2d 114, 117, 472 N.Y.S.2d 882, 883 (1984)). In addition, in the context of fraudulent joinder, “[a]ll uncertainties in applicable state law are resolved in favor of the plaintiff, and the complaint is subjected to less searching scrutiny than on a motion to dismiss for failure to state a claim.” Campisi v. Swissport Cargo Servs. LP, No. 09-CV-1507, 2010 WL 375878, at *2 (E.D.N.Y. Jan. 26, 2010) (internal quotation marks omitted); see also Sherman v. A.J. Pegno Constr. Corp., 528 F.Supp.2d 320, 328-29 (S.D.N.Y.2007) (explaining that it is not enough for a defendant asserting fraudulent joinder to show that the plaintiff's cause of action would not survive a motion to dismiss).

         Defendants claim that plaintiff has no cause of action against Shore Parkway because, as an out-of-possession owner that retained no control over the premises, it is not liable for injuries that occurred on the property. Under New York law, an out-of-possession property owner is not liable for injuries that occur on the property unless the owner “retained control over the property or is obligated by contract to perform repairs and maintenance.” Grippo v. City of New York, 45 A.D.3d 639, 640, 846 N.Y.S.2d 264, 265 (2d Dep't 2007). However, to escape liability, the property owner “must have completely parted with the control of the building.” Williams v. Matrix Fin. Servs. Corp., 158 F. App'x 301, 302 (2d Cir. 2005) (citing Bonifacio v. 910-930 S. Blvd. LLC, 295 A.D.2d 86, 90, 743 N.Y.S.2d 105, 108 (1st Dep't 2002)).

         Here, although the lease requires the tenant to maintain the building and make any necessary repairs, Shore Parkway retained the right of re-entry to “examin[e] the [premises] or to make necessary repairs.” The right to enter the premises may constitute sufficient retention of control to impose liability upon Shore Parkway for plaintiff's injuries caused by a dangerous condition on the premises of the movie theater if “the condition represents a significant structural or design defect that violates a specific statutory provision.” Manning v. Tracy J's, Inc., No. 06 Civ. 956, 2008 WL 1780048, at *9 (S.D.N.Y. April 17, 2008) (citing Nikolaidis v. La Tenia Rest., 40 A.D. 827, 827, 835 N.Y.S.2d 726, 726-27 (2d Dep't 2007)).

         First, there is a factual possibility that plaintiff can recover from Shore Parkway. The complaint does not allege the specific circumstances of plaintiff's fall. Therefore, although it is unlikely that her fall was the result of some structural or design defect, the complaint leaves that possibility open, and I cannot conclude at this time that there are no set of facts on which plaintiff could recover from Shore Parkway.[1]

         Even more significantly, when determining whether a defendant was fraudulently joined, “‘there is no requirement that [the plaintiff's] recovery in state court be reasonably likely.'” Sleight v. Ford Motor Co., No. 10 Civ. 3629, 2010 WL 3528533, at *2 (E.D.N.Y. Sept. 3, 2010) (quoting Lindsay v. Toyota Motor Sales, Inc., No. 04 Civ. 10137, 2005 WL 2030311, at *5 (S.D.N.Y. Aug. 22, 2005)). “‘Any possibility of recovery, even if slim, militates against a finding of fraudulent joinder; only where there is ‘no possibility' of recovery is such a finding warranted.'” Ehrenreich v. Black, 994 F.Supp.2d 284, 289 (E.D.N.Y. 2014) (quoting Nemazee v. Premier, Inc., 232 F.Supp.2d 172, 178 (S.D.N.Y. 2002)). Further, where, as here, there is no allegation of outright fraud, ...

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