Zelaya v. Vasquez

MEMORANDUM DECISION AND ORDER I. INTRODUCTION On September 27, 2022, Gerardo Zelaya (“Plaintiff”) and his wife Tanya Case (together, “Plaintiffs”) commenced this action in New York State Supreme Court against Kilvio S. Vasquez (“Defendant Vasquez”), The Davey Tree Expert Co. (“Defendant”), and Enterprise FM Trust, alleging state law claims for negligence and loss of services resulting from a motor vehicle accident on July 24, 2022. Dkt. No. 2 (“Complaint”). On October 21, 2022, Defendant and Enterprise FM Trust removed this action to federal court on the stated basis of diversity. Dkt. No. 1. Presently before the Court¹ is Defendant’s motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, Dkt. No. 38 (“Motion”), Plaintiffs’ opposition, Dkt. No. 40, and Defendant’s reply in further support, Dkt. No. 41. For the reasons set forth below, the case is remanded to New York State Supreme Court, Rensselaer County, for lack of subject matter jurisdiction.² II. BACKGROUND A. The Parties Plaintiffs have been married at all relevant times. Dkt. No. 2 at 22. Plaintiff is a resident of Vermont and his wife is a resident of Virginia. Dkt. No. 2 at 1; Dkt. No. 1 at

8-9. Defendant provides professional tree services to, inter alia, a utility company in Vermont, and is an Ohio corporation with its principal place of business in Ohio. Dkt. No. 1 at 11; Dkt. No. 38-12 at 19:25-20:3.³ Defendant Vasquez was previously employed by Defendant to provide professional tree services to the utility company in Vermont. Dkt. No. 2 at 9; Dkt. No. 38-7 at 11:24-12:3; Dkt. No. 38-12 at 19:25-20:3. Prior to the July 2022 accident, Defendant Vasquez had been working in Vermont for approximately two years, as assigned by Defendant. Dkt. No. 38-7 at 12:2-21. During this time, Defendant Vasquez stayed in hotels paid for by Defendant and led one of Defendant’s tree trimming crews. Id. at 12:22-13:4. Defendant provided Defendant Vasquez with a leased Ford F-150 pickup (“F-150″) so that he could travel between his hotel and the location where the tree trimming equipment was stored; from that location, the crew would then travel to different job sites. Dkt. No. 38-12 at 20:2-23. The Complaint alleges, upon information and belief, that Defendant Vasquez is now a resident of Pennsylvania. Dkt. No. 2 at 3. B. Relevant Events Around 5:00 a.m. on July 24, 2022, Defendant Vasquez drove the F-150 off the road and into a tree in New York State. Dkt. No. 38-2 at 18. Defendant Vasquez, Plaintiff, and another friend had consumed dozens of alcoholic drinks together in the hours prior to the accident, before deciding to drive an hour from Plaintiff’s house in Vermont to purchase more alcohol. Id. at