Order: T.B. Penick & Sons, Inc. v. Triton Builders, Inc., Aegis Security Insurance Company

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                                FILED:         NEW     YORK       COUNTY        CLERK        12/06/2016             11:32        AM                 INDEX    NO.   655740/2016
   NYSCEF     DOC.   NO.   4   Case 1:16-cv-09323-LGS              Document 5         Filed 12/06/16        Page   1 of 2 NYSCEF:
                                                                                                              RECEIVED                 12/06/2016




                  UNITED STATES DISTRICT COURT
                  SOUTHERN DISTRICT OF NEW YORK
                   -------------------------------------------------------------X
                                                                                :                       12/6/2016
                   T.B. PENICK & SONS, INC.,                                    :
                                                                Plaintiff,      :
                                                                                :             16 Civ. 9323 (LGS)
                                              -against-                         :
                                                                                :                    ORDER
                   TRITON BUILDINS, INC., and AEGIS                             :
                   SECURITY INSURANCE COMPANY                                   :
                                                                                :
                                                                Defendants.     :
                                                                                :
                   -------------------------------------------------------------X

                  LORNA G. SCHOFIELD, District Judge:

                           WHEREAS, Defendants filed a Notice of Removal of this action to remove it from the

                  Supreme Court of the State of New York, County of New York on December 5, 2016.

                           WHEREAS, Defendant alleges that this Court has jurisdiction pursuant to 28 U.S.C. §

                  1332(a) and that the action was removed by Defendant pursuant to 28 U.S.C. § 1441.

                           WHEREAS, pursuant to 28 U.S.C. § 1441(b)(2), “a civil action otherwise removable

                  solely on the basis of the jurisdiction under section 1332(a) of this title may not be removed if

                  any of the parties in interest properly joined and served as defendants is a citizen of the State in

                  which such action is brought.”

                           WHEREAS, Defendant Triton Builders, Inc., is a New York corporation with its

                  principal place of business in Amityville, New York and is therefore a citizen of the State of

                  New York.      Accordingly, this action was improperly removed.              It is hereby

                           ORDERED that this action is remanded to the Supreme Court of the State of New York,

                  County of New York.         See Mitskovski v. Buffalo & Fort Erie Pub. Bridge Auth., 435 F.3d 127,

                  131 (2d Cir. 2006) (recognizing the Court’s sua sponte power to remand); Cassara v. Ralston,




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                               Case 1:16-cv-09323-LGS              Document 5         Filed 12/06/16        Page 2 of 2



                  832 F. Supp. 752, 753 (S.D.N.Y. 1993) (Sotomayor, J.).

                           The Clerk of Court is directed to remand this action to the Supreme Court of the State of

                  New York, County of New York.

                           SO ORDERED.

                  Dated:   December 6, 2016
                           New York, New York




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