govinfo:USCOURTS-nynd-5_26-cv-00985-0

UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF NEW YORK 
 
MARK CLEMENTS and CYNTHIA CLEMENTS, 
 
Plaintiffs, 
 
v. 
 
ELIZABETH ROSE SHAPIRO and ANGUS BROWN 
DEARDOFF, 
Defendants. 
 
 
 
 
5:26-cv-00985 (BKS/CBF) 
Appearances: 
For Plaintiffs: 
Peter J. Addonizio 
Catalano Law 
2401 Burnet Avenue 
Syracuse, NY 13206 
 
For Defendants: 
Jeremy Kevin Moldovan 
Barker Patterson Nichols, LLP 
300 Garden City Plaza, Suite 100 
Garden City, NY 11530 
Hon. Brenda K. Sannes, Chief United States District Judge: 
MEMORANDUM-DECISION AND ORDER 
I. INTRODUCTION 
Plaintiffs, Mark Clements and his wife, Cynthia Clements, commenced this action in the 
Supreme Court for the State of New York, Onondaga County, against Defendants Elizabeth Rose 
Shapiro and Angus Brown Deardoff, asserting state law claims for negligence and loss of 
consortium arising from a motor vehicle accident on October 6, 2025. (Dkt. No. 2). Defendants 
filed a notice of removal pursuant to 28 U.S.C. § 1441 on May 1, 2026. (Dkt. No. 1). Presently 
before the Court is Plaintiffs’ motion to remand this action to the state court pursuant to 28 

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U.S.C. § 1447(c). (Dkt. No. 4). The motion has been fully briefed. (Dkt. Nos. 4, 5, 8). For the 
reasons that follow, Plaintiffs’ motion is granted. 
II. BACKGROUND 
Plaintiffs’ verified complaint alleges that on October 6, 2025, Defendant Shapiro, who 
was driving a car, entered into Mr. Clements’s lane of travel while he was driving his 
motorcycle, which “caused a serious collision between [Defendant Shapiro’s] vehicle and [Mr. 
Clements’s] motorcycle, at which time [Mr. Clements] suffered severe and permanent personal 
injuries.” (Dkt. No. 2, ¶ 7). Plaintiffs bring state law negligence and loss of consortium claims 
against Defendant Shapiro and Defendant Deardoff, who owns the vehicle Defendant Shapiro 
was driving. (See Dkt. No. 2). 
III. STANDARD OF REVIEW 
“Generally, any civil suit initiated in state court over which a district court would have 
had original jurisdiction ‘may be removed by . . . the defendants, to the district court of the 
United States for the district . . . embracing the place where such action is pending.’” Gibbons v. 
Bristol-Myers Squibb Co., 919 F.3d 699, 704 (2d Cir. 2019) (quoting 28 U.S.C. § 1441(a)). 
“Section 1441 permits removal on the basis of either federal question jurisdiction or diversity of 
citizenship.” Id. 
Section 1447 provides the mechanism for remand to state court: 
A motion to remand the case on the basis of any defect other than lack of subject 
matter jurisdiction must be made within 30 days after the filing of the notice of 
removal under section 1446(a). If at any time before final judgment it appears that 
the district court lacks subject matter jurisdiction, the case shall be remanded. 
 
28 U.S.C. § 1447(c). “[O]n a motion to remand, the party seeking to sustain the removal, not the 
party seeking remand, bears the burden of demonstrating that removal was proper.” Pate v. City 
of Rochester, 579 F. Supp. 3d 417, 420 (W.D.N.Y. 2022) (quoting Hodges v. Demchuk, 866 F. 

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Supp. 730, 732 (S.D.N.Y. 1994)). “When considering a motion to remand, the district court 
accepts as true all relevant allegations contained in the complaint and construes all factual 
ambiguities in favor of the plaintiff.” Macklin v. Lexington Ins. Co., No. 20-CV-05372, 2020 WL 
5796814, at *2, 2020 U.S. Dist. LEXIS 179427, at *5 (S.D.N.Y. Sep. 29, 2020). 
IV. DISCUSSION 
Defendants removed this action based on the Court’s diversity jurisdiction under 28 
U.S.C. § 1332, alleging that the amount in controversy exceeds $75,000 and that the parties are 
citizens of different States. (Dkt. No. 1, ¶¶ 3–4). However, the notice of removal states that all 
parties are residents of the state of Florida. (Id. at ¶ 3). 
Plaintiffs move to remand this action because “the Complaint filed in State Court 
confirmed that both Plaintiffs and Defendants reside and are citizens of Florida,” and that 
“[b]ecause the parties are non-diverse, the Court lacks subject matter jurisdiction.” (Dkt. No. 4-3, 
at 4–5). Defendants respond that the notice of removal’s allegation regarding Plaintiffs’ 
citizenship in Florida “was a typographical error,” and allege that Plaintiffs are residents of New 
York. (Dkt. No. 5, ¶ 8). In support, Defendants attached the New York State Department of 
Motor Vehicles Police Accident Report which identifies Mr. Clements’s address in Syracuse, 
New York, (see Dkt. No. 5-1, at 1). 
Plaintiffs reply that “[d]efense counsel had it right the first time in his Notice of 
Removal: all plaintiffs and defendants are, in fact, residents and citizens of Florida, and were at 
the time of the crash and the time of the filing of the Complaint in State Court.” (Dkt. No. 8, ¶ 4 
(emphasis omitted)). Plaintiffs support their argument with an affidavit from Mr. Clements, 
which specifies “details of plaintiffs establishing residency in Florida long before the crash and 
filing of the initial Complaint.” (Id. at ¶ 5). 

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Mr. Clements’s affidavit states that “[o]n the date of both [his] motorcycle crash (October 
6, 2025), and the date [his] complaint was filed . . . (February 18, 2026), [he] was a citizen and 
resident of the State of Florida.” (Dkt. No. 8-1, ¶ 3). Plaintiffs closed a sale on a home in 
Florida—where they now reside— on May 28, 2025. ( Id. at ¶¶ 2, 8). They received Florida 
driver’s licenses on June 23, 2025, and also registered to vote in Florida. (Id. at ¶ 7; see also Dkt. 
No. 8-2, at 2). Plaintiffs notified their local tax office in Florida of their move at or about that 
time. (Dkt. No. 8-1, ¶ 11). While Mrs. Clements moved to their Florida home sometime in the 
course of these events, Mr. Clements “stayed briefly for a few days, then [he] went back to New 
York to [Plaintiffs’] Syracuse home until the home sold on September 25, 2025.” (Id. at ¶ 9). Mr. 
Clements notified his local post office branch to cease delivery of the mail to the New York 
residence on or about October 1, 2025. (Id. at ¶ 12). 
The diversity jurisdiction statute provides that “[t]he district courts shall have original 
jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of 
$75,000 . . . and is between . . . citizens of different States.” 28 U.S.C. § 1332(a)(1). For the latter 
requirement, “‘complete’ diversity is required—all parties on one side of the action must be 
citizens of a different state from each of the parties on the other side. Castillo v. BJ's Wholesale 
Club, 645 F. Supp. 3d 85, 89 (E.D.N.Y. 2022) (citing St. Paul Fire & Marine Ins. Co. v. 
Universal Builders Supply, 409, F.3d 73, 80 (2d. Cir. 2005)).). 
To determine the existence of federal diversity jurisdiction, courts apply “a ‘time-of-
filing rule’ that ‘measures all challenges to subject-matter jurisdiction premised upon diversity of 
citizenship against the state of facts that existed at the time of filing [the action].’” Finnegan v. 
Long Island Power Auth., 409 F. Supp. 3d 91, 95–96 (E.D.N.Y. 2019) (quoting Grupo Dataflux 
v. Atlas Glob. Grp., L.P., 541 U.S. 567, 570–71 (2004)). “An individual’s citizenship, within the 

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meaning of the diversity statute, is determined by his domicile . . . [in other words] the place 
where a person has his true fixed home and principal establishment, and to which, whenever he 
is absent, he has the intention of returning.” Van Buskirk v. United Grp. of Cos., Inc., 935 F.3d 
49, 53 (2d Cir. 2019) (alteration in original) (quoting Palazzo ex rel. Delmage v. Corrio, 232 
F.3d 38, 42 (2d Cir. 2000)). “Domicile is not synonymous with residence; a party can reside in 
one place and be domiciled in another.” Finnegan, 409 F. Supp. 3d at 96 (quoting Kennedy v. 
Trs. of Testamentary Tr. of Will of Kennedy, 633 F. Supp. 2d 77, 81 (S.D.N.Y. 2009)). “The 
distinction between residence and domicile is an important one; a defendant may have multiple 
residences, but can only retain one place of domicile.” Morgan v. Jacques, No. 08-CV-00064, 
2010 WL 11537862, at *2, 2010 U.S. Dist. LEXIS 158930, at *4 (D. Vt. June 8, 2010) (citing 
Williamson v. Osenton, 232 U.S. 619, 625 (1914) and Palazzo, 232 F.3d at 42)). 
Accordingly, “residence alone is insufficient to establish domicile for jurisdictional 
purposes,” Van Buskirk, 935 F.3d at 54, but “it is prima facie evidence of domicile,” Hai Yang 
Liu v. 88 Harborview Realty, LLC, 5 F. Supp. 3d 443, 446–47 (S.D.N.Y. 2014). Other factors to 
consider when determining an individual’s domicile include: “voting registration, driver’s 
license and automobile registration, location of brokerage and bank accounts, membership in 
fraternal organizations, churches, and other associations, places of employment or business, and 
payment of taxes.” Kenshoo, Inc. v. Aragon Advert., LLC, 586 F. Supp. 3d 177, 184 (E.D.N.Y. 
2022) (quoting Kennedy, 633 F. Supp. 2d at 81)). “No single factor is conclusive and the 
determination is made based upon the totality of the circumstances.” Ceglia v. Zuckerberg, 772 
F. Supp. 2d 453, 456 (W.D.N.Y. 2011); see also Finnegan, 409 F. Supp. at 96. 
“If a party argues that there has been a change in domicile, that party ‘implicates the 
venerable rule that “[w]here a change of domicile is alleged, the burden of proof results upon the 

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party making the allegation”’” by clear and convincing evidence. Finnegan, 409 F. Supp. at 97 
(emphasis in original) (quoting Herrick Co. v. SCS Comm’ns, Inc., 251 F.3d 315, 323 (2d Cir. 
2001)); Palazzo, 232 F.3d at 42. “To effect a change in domicile, two elements are required: (1) 
residence in a new domicile; and (2) the intention to remain there indefinitely.” Ceglia, 772 F. 
Supp. 2d at 456. 
At the time the verified complaint was filed on February 18, 2026, it appears that 
Plaintiffs resided in Florida. (See Dkt. No. 8-1, ¶¶ 8–9 (stating that at or around the time when 
Plaintiffs purchased a home in Florida on May 28, 2025, “[Mrs. Clements] moved there.”); id. at 
¶ 9 (stating that Mr. Clements “stayed [at the Florida residence] briefly for a few days, then [he] 
went back to New York to [Plaintiffs’] Syracuse home until the home sold on September 25, 
2025)). More importantly, Plaintiffs have presented sufficient evidence that they intended to 
remain in Florida indefinitely. Plaintiffs purchased a home in Florida, where they currently 
reside, in May 2025. (Id. at ¶¶ 2, 8). They obtained Florida driver’s licenses and registered to 
vote in Florida the next month. (Id. at ¶ 7, Dkt. No. 8-2, at 2). Around the same time, they 
notified their local tax office in Florida about their move to Florida. (Dkt. No. 8-1, ¶ 11). They 
sold their home in New York in September 2025. (Id. at ¶¶ 4–5). All of these events occurred 
before Plaintiffs filed their verified complaint. Together, these facts are sufficient to show that 
Plaintiffs changed their domicile to Florida.
1 Accordingly, because all of the parties are citizens 
of Florida, and were citizens of Florida at the time Plaintiffs filed their verified complaint, 
Plaintiff’s motion to remand is granted. 
 
1 Plaintiffs ask for oral argument to address “the inadvertent typographical error” in their notice of removal and “the 
record evidence establishing diversity jurisdiction.” (Dkt. No. 7). Because the Court has carefully reviewed the record 
evidence and finds that the facts contained in Mr. Clements’s affidavit are sufficient to show that Plaintiffs are citizens 
of Florida, the Court does not find that a hearing on the issue would be of assistance, and that request is denied. 

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V. CONCLUSION
For these reasons, it is hereby
ORDERED that Plaintiff’s motion to remand (Dkt. No. 4) is GRANTED; and it is
further 
ORDERED that this action is REMANDED to the Supreme Court of the State of New 
York, Onondaga County under Index No. 001812/2026; and it is further 
ORDERED that the Clerk of Court shall mail a certified copy of this Memorandum-
Decision and Order to the clerk of the Supreme Court of the State of New York, Onondaga 
County. 
I
T IS SO ORDERED. 
D
ated: _________________ 
Syracuse, New York 
June 18th, 2026

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