United States District Court, S.D. New York
Attorneys for Plaintiff LAW OFFICES OF MICHAEL S. LAMONSOFF,
PLLC By: Albert K. Kim, Esq. Colin J. Mulholland, Esq.
Attorneys for Defendant SOBEL LAW GROUP, LLC By: Aaron C.
Gross, Esq. Randee H. Arem, Esq. Sobel Pevzner, LLC.
W. SWEET, U.S.D.J.
plaintiff Nilsa Vargas ("Vargas" or the
"Plaintiff") has moved pursuant to 28 U.S.C. §
1447(c) to remand this slip and fall personal injury action
against White Castle System, Inc. ("White Castle"
or the "Defendant") to the Supreme Court of the
State of New York, County of the Bronx (the "State
Court"). Based on the facts and conclusions set forth
below, the motion of the Plaintiff is granted, and the action
is remanded to the State Court.
initiated this action by filing a Summons and Verified
Complaint with the New York State Supreme Court on November
25, 2015, alleging a slip and fall incident that occurred on
September 13, 2015 at 1677 Bruckner Boulevard, in the County
of Bronx, City and State of New York, which is owned by the
Defendant (the "Subject Premises"). The Defendant
served a Verified Answer dated February 1, 2016, which
included a Demand for Damages.
Plaintiff states that she responded to the Defendant's
Demand for Damages by way of a Supplemental Response to
Combined Demands, dated August 8, 2016. According to an
affidavit of service, the Supplemental Response to Combined
Demands was mailed to counsel for the Defendant on August 8,
Defendant filed a cross-motion seeking Plaintiff to respond
to their Demand for Damages. On October 4, 2016, Plaintiff
served an Affirmation in Opposition to Defendant's
cross-motion, which included a courtesy copy of
Plaintiff's August 8, 2016 Supplemental Response to
November 3, 2016, Defendant filed a Notice of Removal and the
action was removed to this Court.
instant motion to remand was heard and marked fully submitted
on December 15, 2016.
Motion to Remand is Granted
to 28 U.S.C. § 1446(b)(1), a "notice of removal of
a civil action or proceeding shall be filed within 30 days
after the receipt by the defendant, through service or
otherwise, of a copy of the initial pleading setting forth
the claim for relief upon which such action or proceeding is
based . ..." In Moltner v. Starbucks Coffee
Co., 624 F.3d 34, 38 (2d Cir. 2010), the Second Circuit
held "that the removal clock does not start to run until
the plaintiff serves the defendant with a paper that
explicitly specifies the amount of monetary damages
sought." Additionally, on a motion for remand, the
Defendant bears the burden of demonstrating the propriety of
removal. Cal. Pub. Employees'' Ret. Sys. v.
WorldCom, Inc., 368 F.3d 86, 100 (2d Cir. 2004);
Intelligen Power Systems, LLC v. dVentus Technologies
LLC, 73 F.Supp.3d 378 (S.D.N.Y. 2014).
parties do not dispute that the Supplemental Response to
Combined Demands contains the explicit specification of
monetary damages sought and serves as the initial pleading.
However, the parties contest the date on which Supplemental
Response to Combined Demands was received by the
Defendant.According to the Plaintiff, it was shortly
after the August 8, 2016 mailing. According to the Defendant,
it was October 4, 2016. Because the Defendant bears the
burden of establishing the grounds for removal, and for the
reasons set forth below, it is concluded that the Defendant
has not established that its first receipt of the
Plaintiff's demand was October 4, 2016, and service by
mail on August 8, 2016 is presumed.
evidence provided here is sparse. The Plaintiff has not
provided proof of delivery, but the Defendant has also not
provided any evidence that the Supplemental Response was not
received in August. The Notice of Removal is contradictory.
Initially, it states that the Supplemental Response of the