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Vargas v. White Castle System, Inc.

United States District Court, S.D. New York

May 16, 2017

NILSA VARGAS, Plaintiff,
v.
WHITE CASTLE SYSTEM, INC., Defendant.

          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.

          OPINION

          ROBERT W. SWEET, U.S.D.J.

         The 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.

         I. Prior Proceedings

         Plaintiff 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.

         The 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, 2016.

         The 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 Combined Demands.

         On November 3, 2016, Defendant filed a Notice of Removal and the action was removed to this Court.

         The instant motion to remand was heard and marked fully submitted on December 15, 2016.

         II. The Motion to Remand is Granted

         Pursuant 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).

         The 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.[1]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.

         The 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 ...


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