The opinion of the court was delivered by: WILLIAM CONNER, Senior District Judge
Plaintiff Emanuel Zerafa brings this negligence action against
defendants Montefiore Hospital Housing Company, Inc. ("MHHC"),
Louisville Ladder Group, LLC ("Louisville") and C&D (full name
unknown) claiming personal injury. The claim was removed to
federal court by Louisville based on diversity jurisdiction
pursuant to 42 U.S.C. § 1332. Plaintiff moves to remand the claim
based on procedural defects pursuant to FED. R. CIV. P. §
1447(c), and MHHC moves for summary judgment under FED. R. CIV.
P. 56 on the ground that it does not own the property on which
the accident occurred. For the reasons stated herein, Zerafa's
motion to remand is denied and MHHC's motion for summary judgment
On April 16, 2002, plaintiff was employed as a housekeeper for
Montefiore Medical Center,*fn1 which occupies a complex of
buildings including 3400 Bainbridge Avenue. (Am. V. Complt. ¶ 20;
Def. Louisville Decl. at 5.)*fn2 While working at 3400
Bainbridge Avenue, an alleged defect in the ladder on which he
was standing caused him to fall, resulting in injury. (Am. V.
Complt. ¶¶ 23, 38-39.) Plaintiff commenced an action in New York
State Supreme Court, Bronx County on May 13, 2003 against MHHC as
the purported owner of 3400 Bainbridge Avenue. (Pl. Mem. Supp.
Mot. Remand at 2.) Plaintiff's belief that MHHC is the owner of
3400 Bainbridge Avenue is based on a record abstract indicating that MHHC is the owner.*fn3
(Id.; Pl. Aff. Opp. Summ. J. ¶ 6, Ex. C.)
MHHC moved in state court for summary judgment and dismissal of
plaintiff's Amended Verified Complaint on the ground that it did
not own 3400 Bainbridge Avenue. (Def. MHHC Aff. Supp. Summ. J. ¶
9.) MHHC insists that Montefiore Medical Center is the legal
owner. (Id.) Justice George D. Salerno denied the motion
without prejudice with leave to renew the motion at the
completion of discovery. (Id. at ¶ 10.) On February 27, 2004,
plaintiff amended his complaint to add Louisville, the alleged
manufacturer of the ladder, as a defendant. (Am. V. Complt. ¶¶
35-47.) On March 3, 2005, after discovery commenced but before it
was completed, MHHC informed Louisville that MHHC planned to
renew its motion for summary judgment. (Def. Louisville Mem. at
2;*fn4 Def. MHHC Aff. Supp. Summ. J., Ex. I ¶ 5.) On March
9, 2005, based on what Louisville perceived as the "inevitable"
dismissal of MHHC from the action, Louisville petitioned for
removal of the action to federal court based on diversity
jurisdiction.*fn5 (Def. Louisville Mem. at 2.) On May 25,
2005, plaintiff moved for remand, at which point MHHC renewed its
motion for summary judgment. II. Property Interest in 3400 Bainbridge Avenue
It is undisputed that the property known as 3400 Bainbridge
Avenue rests on Block 3343, Lot 283 in Bronx, New York. (Pl. Aff.
Opp. Summ. J. ¶¶ 5-6; Def. MHHC Mem. Supp. Summ. J. at 2-3; Def.
Louisville Mem. at 5.) The first known record deed for Block
3343, Lot 283, dated 1910, conveys the property from William H.
Picken and Julia A. Picken to Montefiore Home, a Hospital for
Chronic Invalids and Country Sanitarium for Consumptives
("Montefiore Home"). (Pl. Aff. Opp. Summ. J., Ex. B; Def. MHHC
Mot. Summ. J., Ex. J.) After several official name changes,
Montefiore Home is now Montefiore Medical Center. (Def. MHHC Mot.
Summ. J., Ex. K.)
In 1964, a deed affecting this property (hereinafter "the 1964
deed") was recorded that conveyed a section of Lot 283 from
Montefiore Medical Center to MHHC. (Pl. Aff. Opp. Summ. J., Ex.
C; Def. Louisville Decl., Ex. 3.) In addition, an easement
between Montefiore Medical Center and MHHC (hereinafter "the 1995
easement") was recorded on August 23, 1995, allowing the Medical
Center a nonexclusive, perpetual easement and right-of-way on
MHHC's parcel for construction of a medical arts pavilion and
parking garage. (Pl. Aff. Opp. Summ. J., Ex. D; Def. Louisville
Decl., Ex. 4) The explicit language in the 1995 easement,
describes MHHC's property the burdened parcel as "Lot 300,"
and the parcel owned by Montefiore Medical Center the
benefitted property is described as "Lot 283." (Pl. Aff. Opp.
Summ. J., Ex. D.; Def. Louisville Decl., Ex. 4.) Attached to the
1995 easement is the metes and bounds description of "Lot 300."
(Pl. Aff. Opp. Summ. J., Ex. D.; Def. Louisville Decl., Ex. 4.)
This description matches the legal description of the property
conveyed to MHHC in the 1964 deed. (See Pl. Aff. Opp. Summ. J.
¶ 6, Exs. C, D; Def. Louisville Decl. ¶ 27, Exs. 3, 4.) A survey
of Block 3343, Lot 283 conducted in August 1999, and certified to
the United States Department of Housing and Urban Development by Harwood Surveying, P.C., indicates two lots on Block 3343: Lot
283 and Lot 300. (Def. MHHC Aff.Supp. Summ. J. ¶ 19, Ex. M.)
A cause of action originally filed in state court may be
removed by a defendant to federal court where "the district
courts of the United States have original jurisdiction."
28 U.S.C. § 1441(a). For removal to be considered proper, the
removing party must demonstrate that the federal court is endowed
with the requisite subject matter jurisdiction. See Caterpillar
v. Williams, 482 U.S. 386, 391-92 (1987). Removal jurisdiction
is strictly construed inasmuch as it implicates significant
federalism concerns and abridges the deference courts generally
give to a plaintiff's choice of forum. See id.; see also
Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 109 (1941)
("Due regard for the rightful independence of state governments,
which should actuate federal courts, requires that they
scrupulously confine their own jurisdiction to the precise limits
which the statute has defined."); In re NASDAQ Mkt. Makers
Antitrust Litig., 929 F. Supp. 174, 178 (S.D.N.Y. 1996)
("Removal jurisdiction must be strictly construed, both because
the federal courts are courts of limited jurisdiction and because
removal of a case implicates significant federalism concerns.").
The removing party bears the burden of establishing that removal
is proper. See Avon Prods., Inc. v. The A/J P'ship, Nos. 89
Civ. 3743, 89 Civ. 8032, 1990 WL 422416, at *1 (S.D.N.Y. Mar. 1,
1990); Fisher v. Bldg. Servs. 32-B-J Health Fund, No. 96 Civ.
4317, 1997 WL 590843, at *2 (S.D.N.Y. Sept. 22, 1997); Still v.
DeBuono, 927 F. Supp. 125, 129 (S.D.N.Y. 1996). A federal court has subject matter jurisdiction when complete
diversity exists between the parties and the amount in
controversy exceeds $75,000. See 28 U.S.C. § 1332. "It is a
fundamental principal [sic] of law that whether subject matter
jurisdiction exists is a question answered by looking to the
complaint as it existed at the time the petition for removal was
filed." Hill v. Delta Int'l Mach. Corp., 386 F. Supp. 2d 427,
429 (S.D.N.Y. 2005) (citing Collins v. Dartmouth Plan, Inc.,
646 F. Supp. 244, 245 (D. Conn. 1986)).
Complete diversity does not appear to exist in this case.
Plaintiff is a citizen of New York. Louisville is a Delaware
Corporation with its principal place of business in Kentucky. The
presence of MHHC, a nonprofit corporation organized under New
York law with its ...