Silva v. Sunrise Senior Living Management, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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PHILIP SILVA, as Executor of the

Estate of Algeria Silva, deceased,

Plaintiff,

MEMORANDUM & ORDER

-against- 22-CV-6675(JS)(LGD)

SUNRISE OF DIX HILLS, as assignee of

GWC-Dix Hills, Inc.,

Defendant.

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APPEARANCES

For Plaintiff: Jeffrey Alan Guzman, Esq.

Krentsel & Guzman, LLP

17 Battery Place

New York, New York 10004

For Defendants: Rafael Vergara, Esq.

White and Williams, LLP

7 Times Square, Suite 2900

New York, New York 10036

SEYBERT, District Judge:

Plaintiff Philip Silva (“Plaintiff”), as Executor of the

Estate of Algeria Silva (“Decedent”), seeks an order remanding

this action to the Supreme Court of the State of New York, Suffolk

County. (See Remand Motion, ECF No. 14; see also Support Memo,

ECF No. 14-1; Reply, ECF No. 20.) Defendant Sunrise Senior Living

Management, Inc. (“Defendant”)1 opposes the motion. (Opp’n, ECF

1 Pursuant to a stipulation, the parties agreed that Sunrise

Senior Living Management, Inc. is the real party in interest, which

party would replace Sunrise of Dix Hills as the named defendant.

(See Stip. Extending Time, Ex. 2, ECF No. 1-2, ¶ 2, attached to

Notice of Removal, ECF No. 1.) Thus, given that stipulation, the

No. 14-13.) For the reasons that follow, Plaintiff’s Remand Motion

is GRANTED.

BACKGROUND AND PROCEDURAL HISTORY

The Court presumes the parties’ familiarity with the

facts and procedural history of this case. By way of brief

background and for the reader’s convenience, the Court provides

the following summary. On November 2, 2022, Defendant invoked the

Court’s diversity jurisdiction under 28 U.S.C. § 1332 (“Section

1332”) and removed this action to this Court from the New York

State Supreme Court, Suffolk County, pursuant to 28 U.S.C. § 1441.

(See Notice of Removal, ¶¶ 2-3.)

The Complaint alleges Decedent was a resident of the

Sunrise of Dix Hills facility (hereafter, the “Facility”) from

January 1, 2020 through March 30, 2020, when she died. (Compl.,

ECF No. 1-3, ¶ 68.) Plaintiff asserts during Decedent’s admission

at the Facility, Decedent “was infected with SARS-CoV-2 and COVID-

19, and developed respiratory distress and hypoxia,” which caused

her death. (Id.) Moreover, “[p]rior to the arrival of

coronavirus, [the Facility] had a longstanding history of failing

to provide proper infection prevention and control procedures, and

despite being armed with knowledge of prior public health infection

events, failed to take steps to prepare to prevent the spread of

Clerk of Court is directed to amend the name of the Defendant to

“Sunrise Senior Living Management, Inc.”

future infections.” (Id. ¶ 69.) Plaintiff allegations Defendant

violation New York Public Health Law Article 28 (“Article 28”)

arising out of Defendant’s alleged failure to properly operate the

Facility despite having been advised that the coronavirus

infection could rapidly spread and the Facility’s failure to

provide adequate care. (Id., First Cause of Action, ¶¶ 72-115.)

Plaintiff seeks compensatory damages “in a sum which exceeds the

jurisdictional limits of all lower Courts” and punitive damages

under this first count. (See id. ¶ 112, and Prayer for Relief.)

Plaintiff also asserts claims of: breach of duty of care (see id.,

Second Cause of Action, ¶¶ 116-30); negligence (see id., Third

Cause of Action, ¶¶ 131-48); and, wrongful death (see id., Fourth

Cause of Action,2 ¶¶ 149-55). For these causes of action, Plaintiff

seeks “a sum which exceeds the jurisdictional limits of all lower

Courts”. (See id. ¶¶ 130, 148, 155.)

After removal, on November 9, 2022, Defendant requested

a pre-motion conference regarding a proposed dismissal motion,

arguing: Plaintiff’s wrongful death claim is barred by the statute

of limitations; the Complaint fails to plead actionable claims;

and, Defendant is entitled to immunity under (a) the New York State

Emergency or Disaster Treatment Protection Act, and (b) the federal

2 Plaintiff incorrectly labels the Fourth Cause of Action as the

“Fifth Cause of Action”; there are only four causes of actions

asserted. (See Compl., in toto.)

Public Readiness and Emergency Preparedness (“PREP”) Act

(hereafter, the “Conference Request”). (See ECF No. 5.) Plaintiff

opposed the Conference Request and, in doing so, also notified the

Court and Defendant he planned “to file a motion to remand on the

grounds that th[e] Court lacks subject matter jurisdiction over

the claims [raised].” (Conference Request Opp’n, ECF No. 7, at

1.) However, this case was stayed on February 1, 2023. (See Feb.

1, 2023 Elec. Order3 (hereafter, the “Stay ORDER”).) In doing so,

the Court held in abeyance the deadline for Plaintiff to file his

Remand Motion. (See id.) On July 5, 2023, the stay was lifted

and the Court instituted a briefing schedule for Plaintiff’s Remand

3 In relevant part, the Court ruled:

In cases which present similar issues to the

instant case, the Court has issued stays

and/or denied the defendants’ pre-motion

conference requests pending the disposition of

certain appeals before the Second

Circuit. See No. 22-CV-2234, Wegenaar v. Our

Lady of Consolation Geriatric Care Center, May

24, 2022 Elec. Order (E.D.N.Y.) (citing Nos.

21-2157 & 21-2159, Leroy v. Hume (2d Cir.);

No. 21-2164, Rivera-Zayas v. Our Lady of

Consolation (2d Cir.)); 22-CV-5314, Miller v.

St. Johnland Nursing Center, Inc., Oct. 24,

2022 Elec. Order (same); 22-CV-5616, The

Estate of Gerda Balos v. Quantum

Rehabilitation and Nursing, LLC, Oct. 24, 2022

Elec. Order (same); see also No.

21-2729 Solomon v. St. Joseph Hospital(2d

Cir.). Accordingly, the Court finds that a

stay is warranted . . . .

(Stay ORDER.)

Motion. (See July 5, 2023 Elec. Order.) The fully briefed Remand

Motion was filed September 19, 2023 and is ripe for decision.

DISCUSSION

I. Legal Standard

A defendant may remove a state court action to federal

court based upon diversity jurisdiction by filing a notice of

removal within 30 days after service of the initial pleading. See

28 U.S.C. §§ 1446(a) and (b)(1). Pursuant to Section 1332(a),

district courts have “original jurisdiction of all civil actions

where the matter in controversy exceeds the sum or value of

$75,000,” and where there is diversity of citizenship between the

parties, including where the parties are “citizens of different

States.” 28 U.S.C. § 1332(a).

A plaintiff seeking to remand a case back to state court

must file a motion “within 30 days of the filing of the notice of

removal, unless there is a defect in subject matter jurisdiction,

in which case the action must be remanded if the defect is

identified before final judgment.” Kanayama v. KESY LLC, No.

14-CV-3405, 2015 WL 1433203, at *3 (S.D.N.Y. Mar. 30, 2015) (citing

28 U.S.C. § 1447(c)). “It is well-settled that the party asserting

federal jurisdiction bears the burden of establishing

jurisdiction.” Blockbuster, Inc. v. Galeno, 472 F.3d 53, 57 (2d

Cir. 2006) (citation omitted). Further, the party asserting

federal jurisdiction “must establish jurisdiction by a

‘preponderance of evidence.’” Minaudo v. Sunrise at Sheepshead

Bay, No. 22-CV-2579, 2023 WL 110359, *2 (E.D.N.Y. Jan. 5, 2023)

(quoting Platinum-Montaur Life Scis., LLC v. Navidea

Biopharmaceuticals, Inc., 943 F.3d 613, 617 (2d Cir. 2019); further

citation omitted). “The removal requirements are construed

narrowly, and any doubts are resolved against removal.” Kanayama,

2015 WL 1433203, at *3 (citing In re Methyl Tertiary Butyl Ether

(“MTBE”) Prods. Liab. Litig., 488 F.3d 112, 124 (2d Cir. 2007)).

II. Analysis

In his Remand Motion, Plaintiff primarily argues the

merits of his underlying causes of action. (See Support Memo, in

toto.) To the extent Plaintiff asserts there is no federal

question upon which the Court can exercise its jurisdiction, while

true, Plaintiff misses the mark. (See, e.g., id. at 7-9.) “[T]he

[Notice of Removal] expressly alleges . . . diversity

jurisdiction”; thus, the Court has “original jurisdiction over the

[Complaint] if diversity jurisdiction exists.” Hooper v.

PetSmart, Inc., No. 18-CV-1706, 2019 WL 4888651, at *5 (E.D.N.Y.

Sept. 30, 2019) (emphasis added). Indeed, “[f]ederal courts have

jurisdiction ‘over all civil actions where the matter in

controversy exceeds the sum or value of $75,000’ and is between

‘citizens of different states.’” Minaudo, 2023 WL 110359, *2

(emphasis added).

In opposing remand, Defendant maintains:

[i]t did not rely on the PREP Act as a basis

for removal, nor has it asserted subject

matter jurisdiction because of a federal

question or the Federal Officer Removal

Statute. Defendant’s notice of removal is

predicated on the fact that this Court has

diversity jurisdiction under 28 U.S.C. § 1332.

Therefore, Plaintiff’s arguments for remand

regarding federal question jurisdiction and

the Federal Officer Removal Statute (28 U.S.C.

§ 1442(a)(1)) are irrelevant, and have no

bearing on this Court’s jurisdiction under 28

U.S.C. § 1332.

(Opp’n, ECF No. 14-13, at 5 (citing Notice of Removal, ECF No. 1,

¶¶ 8-10, ECF Document 1).) The Court does not disagree. Indeed,

in its Notice of Removal, Defendant asserts, inter alia, “This

Court has original jurisdiction on the basis of diversity under 28

U.S.C. § 1332. Diversity jurisdiction pursuant to 28 U.S.C. §

1332 is based upon the State Court Action involving a matter in

controversy exceeding the ‘sum or value of $75,000, exclusive of

interest and costs,’ and being between ‘citizens of different

States.’” (Notice of Removal, ¶ 3; see also id. at ¶ 7 (re:

Diversity of Parties), and ¶¶ 8-10 (re: Amount in Controversy).)

To the extent Defendant asserts it and Plaintiff are

citizens of different States, it has met its burden of establishing

that prong of the diversity jurisdiction inquiry. Plaintiff, as

the executor of an estate, is a citizen of New York, the same state

as Decedent. (See Compl. ¶¶ 4-6); see also Section 1332(c)(2).

Defendant Sunrise Senior Living Management, Inc. is a citizen of

Virginia; it is a Virginia corporation with its principal place of

business in Virginia. (See Notice of Removal ¶ 7(b) & (c)); see

also Section 1332(c)(1); Universal Licensing Corp. v. Paola del

Lungo, S.p.A., 293 F.3d 579, 581 (2d Cir. 2002) (“For diversity

purposes, a corporation is deemed to be a citizen both of the state

in which it has its principal place of business and of any state

in which it is incorporated.”). Moreover, as noted (see supra

note 1), the parties stipulated:

Plaintiff incorrectly named Sunrise of Dix

Hills as a defendant, and now Plaintiff

recognizes that the real party in interest

with regard to [the] complaint allegations is

Sunrise Senior Living Management, Inc.

Accordingly, the parties stipulate to amending

the pleadings so as to remove defendant

Sunrise of Dix Hills and replace it with

Sunrise Senior Living Management, Inc. The

parties may treat the pleadings as amended

forthwith.

(Stip. Extending Time ¶ 2 (emphases in original).) Plaintiff does

not dispute these representations. Hence, as to the citizenship

prong inquiry, Defendant has met its burden of establishing the

parties are diverse.

Rather, “[a]t issue here is the amount-in-controversy

prong of diversity jurisdiction.” Minaudo, 2023 WL 110359, at *2.

Plaintiff’s Complaint does not allege a specific amount of damages.

(See Compl., in toto.) In its Notice or Removal, Defendant states,

“There is a reasonable probability that [Plaintiff’s] claim is in

excess of the statutory jurisdictional amount” since the

“Complaint seeks compensation for alleged serious personal

injuries and ultimately the loss of a life.” (Notice of Removal

¶ 8.) To support its position that “Plaintiff’s Complaint

allegations demonstrate that the amount in controversy exceeds

$75,000” (id. at ¶ 10), Defendant relies upon said Complaint,

which: (1) alleges the Decedent was admitted to Defendant’s

Facility and, during her admission there, “was infected with SARS-

CoV-2 and COVID-19, and developed respiratory distress and

hypoxia, which resulted in her untimely death on March 30, 2020”

(id. at ¶ 9(a) (quoting Compl. ¶ 68); see also id. at ¶ 9(b)

(quoting Compl. ¶ 114)), and (2) seeks, in addition to compensatory

damages, punitive damages and attorneys’ fees (see id. at ¶ 9(c)

(quoting Compl. ¶¶ 71, 112, 147)). The Court is unpersuaded.

As Honorable Eric Komitee of this District recently

instructed:

When the initial pleading seeks monetary

damages but “State practice . . . does not

permit demand for a specific sum,” the notice

of removal may instead assert the amount in

controversy. [28 U.S.C.] § 1446(c)(2)(A)(ii).

“[A] defendant’s notice of removal need

include only a plausible allegation that the

amount in controversy exceeds the

jurisdictional threshold.” Dart Cherokee

Basin Operating Co., LLC v. Owens, 574 U.S.

81, 89 (2014). “Evidence establishing the

amount,” however, is required “when the

plaintiff contests, or” — as relevant here —

“the court questions, the defendant’s

allegation.” Id. In such a case, removal is

proper if the court “finds, by the

preponderance of the evidence,” that the

amount in controversy exceeds $75,000.

§ 1446(c)(2)(B). “[I]f the jurisdictional

amount is not clearly alleged in the

plaintiff’s complaint, and the defendant’s

notice of removal fails to allege facts

adequate to establish that the amount in

controversy exceeds the jurisdictional

amount, federal courts lack diversity

jurisdiction as a basis for removing the

plaintiff’s action from state court.” Lupo v.

Hum. Affs. Int’l, Inc., 28 F.3d 269, 273–74

(2d Cir. 1994). . . .

A defendant removing a personal injury or

wrongful death action from New York state

court, moreover, need not guess at the amount

in controversy; New York state law provides a

mechanism for establishing exactly that.

While the complaint in such an action “shall

not state the amount of damages” sought, N.Y.

C.P.L.R. 3017(c), a defendant “may at any time

request a supplemental demand setting forth

the total damages to which the pleader deems

himself entitled,” id. Should the plaintiff

fail to serve that demand “within fifteen

days,” the state court “may order that it be

served.” Id. Additionally, a defendant

utilizing this mechanism typically does not

run the risk of removing too late. “[T]he

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.” Moltner v.

Starbucks Coffee Co., 624 F.3d 34, 38 (2d Cir.

2010); see § 1446(b)(3) (“[I]f the case stated

by the initial pleading is not removable, a

notice of removal may be filed within 30 days

after receipt . . . of a copy of an amended

pleading, motion, order or other paper from

which it may first be ascertained that the

case is one which is or has become removable.”

(emphasis added)).

Minaudo, 2023 WL 110359, at *2.

In Minaudo, where the underlying New York state court

complaint in a wrongful death action did not state the specific

amount in controversy, Judge Komitee found the defendant “fail[ed]

to meet its burden of establishing that the jurisdictional amount

ha[d] been satisfied.” Id. at *3. There, the defendant had not

requested “a supplemental demand, as it could have under N.Y.

C.P.L.R. 3017(c), to obtain the total damages that [p]laintiff

[wa]s seeking.” Id.; see also Cavaleri v. Amgen Inc., No. 20-CV-

1762, 2021 WL 951652, at *3 (E.D.N.Y. Mar. 12, 2021) (“As courts

in this district have reiterated time and time again in sua sponte

remanding cases, the state courts provide an established and simple

mechanism for ascertaining the amount in controversy, through a

supplemental demand under [N.Y. C.P.L.R.] § 3017(c)[.]”

(collecting cases)). “Nor did it provide any additional evidence

regarding [p]laintiff’s damages allegations . . . .” Id.; cf.,

e.g., Schumacher v. Sunrise Sr. Living Mgmt., Inc., No. 19-CV-

5744, 2021 WL 84284, at *3 (E.D.N.Y. Jan. 11, 2021) (denying motion

to remand wrongful death action, notwithstanding neither the

complaint nor notice of removal established the minimum

amount-in-controversy, because plaintiff represented such amount

in a separate court filing in the record). “Instead, [the

defendant] offer[ed] only the complaint’s allegations and its

notice of removal, which state[d] simply the amount in controversy

[wa]s met because the action involve[d] ‘serious personal injuries

and ultimately the loss of life.’” Id. Judge Komitte highlighted

the defendant’s showing was insufficient, “[n]otwithstanding the

severity of the alleged harm,” collecting cases of “[c]ourts in

this [D]istrict hav[ing] rejected similar generalized,

‘boilerplate’ allegations as a basis for asserting the amount in

controversy.” Id. (collecting cases); see also Doe v. Warner, 659

F. Supp. 3d 293, 297-98 (E.D.N.Y. 2023) (same; collecting cases).

Here, the Court is presented with a procedurally

analogous case also warranting remand. Neither the Complaint nor

Notice of Removal “satisfy [the Court] that the required minimum

amount in controversy exists.” United Food & Com. Workers Union,

Local 919, AFL-CIO v. CenterMark Props. Meriden Square, Inc., 30

F.3d 298, 305 (2d Cir. 1994). Moreover, after conducting a careful

review of the record, the Court finds no other evidence

demonstrating the amount-in-controversy requirement is satisfied.

See, e.g., Schumacher, 2021 WL 84284, at *3. Rather, “the Court

is left to guess at the amount in controversy based on the

Complaint’s generalized and boilerplate language concerning

Plaintiff's injuries,” which allegations Defendant relies upon in

its Notice of Removal as its means of satisfying the

amount-in-controversy prong of the diversity jurisdiction

inquiry.4 Doe, 659 F.Supp.3d at 297. Upon such showing, Defendant

4 To the extent Plaintiff claims his damages exceed the

jurisdictional limits of all lower courts (see, e.g., Compl.,

Prayer for Relief), he “refers to the lower courts of New York,

which may not entertain actions seeking to recover more than

$25,000, well below the $75,000 threshold required for federal

diversity jurisdiction.” Cadmen v. CVS Albany, L.L.C., No.

has failed to establish diversity jurisdiction; therefore, the

Court is without authority to adjudicate this case. Indeed, having

failed to use N.Y. C.P.L.R. § 3017(c) to determine the amount of

damages sought by Plaintiff, Defendant’s removal was premature.

See id. (emphasizing defendant “proceeded at his peril in removing

[his] case” without first utilizing C.P.L.R. § 3017(c) and,

instead, “simply presume[ed] his allegations would be deemed

sufficient with respect to the required amount in controversy”

(cleaned up; citation omitted)); see also, e.g., Myres v. Speedway,

LLC, No. 23-CV-5232, 2023 WL 6121799, at *3 (E.D.N.Y. Sept. 19.

2023) (“[I]nstead of removing the action to this Court prematurely,

Defendant could, and should, have availed itself of th[e C.P.L.R.

§ 3017(c)] mechanism.” (collecting cases)); Cavaleri, 2021 WL

878555, at *2 n.2 (noting it was premature to remove state court

action before first utilizing C.P.L.R. § 3017(c) to determine the

amount-in-controversy).

[Remainder of page intentionally left blank.]

22-CV-0046, 2022 WL 138056, *2 (E.D.N.Y. Jan. 14, 2022) (citation

omitted; further stating “identical ad damnum clauses pled to

establish jurisdiction in New York courts have been repeatedly

found too vague and ambiguous to enable an intelligent assessment

of whether the amount-in-controversy requirement of diversity

jurisdiction has been satisfied” (cleaned up; citation omitted)).

CONCLUSION

For the foregoing reasons, IT IS HEREBY ORDERED that:

Plaintiff’s Remand Motion (ECF No. 14) is GRANTED; and

IT IS FURTHER ORDERED that the Clerk of Court is directed

to remand this action back to the Supreme Court of the State of

New York, Suffolk County, together with a certified copy of this

Order to the clerk of that court; and, thereafter, close this case.

SO ORDERED.

/s/ JOANNA SEYBERT

Joanna Seybert, U.S.D.J.

Dated: September 19, 2024

Central Islip, New York