United States District Court, E.D. New York
MEMORANDUM DECISION & ORDER
M. Cogan U.S.D.J.
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.
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.
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 . . . .”
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
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).
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
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
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)).
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)).
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.
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