Mata v. Avianca, Inc.

Filing 1

FILING ERROR - EXHIBITS NOT CLEARLY TITLED NOTICE OF REMOVAL from Supreme Court State of New York, County of New York. Case Number: 151004/2022. (Filing Fee $ 402.00, Receipt Number ANYSDC-25765897).Document filed by Avianca, Inc...(Banino, Bartholomew) Modified on 2/23/2022 (sj).

Case 1:22-cv-01461-PKC Document 1 Filed 02/22/22 Page 1 of 12

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--------------------------------------------------------------- x
:
ROBERTO MATA,
:
:
Plaintiff,
:
:
vs.
:
:
AVIANCA, INC.,
:
:
Defendant.
:
:
---------------------------------------------------------------- x

Civil Action No. 22-cv-1461
NOTICE OF REMOVAL

Defendant AVIANCA, INC. (hereinafter “Avianca”), by and through its attorneys, Condon
& Forsyth LLP, hereby removes this action to the United States District Court for the Southern
District of New York, pursuant to 28 U.S.C. §§ 1331, 1332, 1441, and 1446. In support of this
Notice of Removal, Avianca states as follows:
1.

On or about February 2, 2022, plaintiff ROBERTO MATA commenced this action

against defendant Avianca by filing a Verified Complaint in the Supreme Court of the State of New
York, New York County. On or about January 31, 2022, before the action was commenced,
Plaintiff had sent a courtesy copy of the proposed Verified Complaint by email to the undersigned
as counsel for Avianca. Plaintiff then mailed a copy of the Summons and Complaint to the
undersigned counsel on or about February 7, 2022.

A copy of the Summons and Verified

Complaint is attached as Exhibit A. No further proceedings have been had in this action.
2.

The Verified Complaint seeks damages for personal injuries sustained on board an

Avianca flight that was traveling from El Salvador to New York on August 27, 2019.
3.

Based on the allegations in the Verified Complaint, this Court has original

jurisdiction over this action because of the existence of a federal question pursuant to 28 U.S.C. §

Case 1:22-cv-01461-PKC Document 1 Filed 02/22/22 Page 2 of 12

1331 and, accordingly, it is one which may be removed to this Court pursuant to 28 U.S.C. §
1441(a).
4.

Based on the allegations in the Verified Complaint, the transportation out of which

the subject matter of this action arose was “international carriage” within the meaning of a treaty of
the United States known as the Montreal Convention. Convention for the Unification of Certain
Rules Relating to International Carriage by Air, Done at Montreal, Canada, on 28 May 1999,
reprinted in S. Treaty Doc. 106-45, CCH Av. L. Rep. ¶ 27,400-59, 1999 WL 33292734 (1999).
Accordingly, the rights and liabilities of the parties to this action are governed exclusively by the
provisions of the Montreal Convention.
5.

Because this action arises under a treaty of the United States, the action may be

removed to this Court pursuant to 28 U.S.C. §§ 1331 and 1441(a).
6.

Alternatively, this Court has original jurisdiction over this action pursuant to 28

U.S.C. § 1332 based upon diversity of citizenship because Plaintiff is a citizen of New York,
Avianca is a foreign corporation duly organized and existing under the laws of Colombia, and, upon
information and belief, the amount in controversy exceeds $75,000, exclusive of interest and costs.
7.

Pursuant to 28 U.S.C. § 1446(a), this Notice of Removal is filed in the United

States District Court for the Southern District of New York, which is the District in which the
state court action is pending.
8.

This Notice of Removal is timely filed with this Court pursuant to 28 U.S.C. §

1441(d).
9.

Avianca will promptly provide all parties with written notice of the filing of this

Notice of Removal and shall file a copy of the Notice of Removal with the Clerk of the Supreme
Court of the State of New York, New York County, as required by 28 U.S.C. § 1446(d).

-2-

Case 1:22-cv-01461-PKC Document 1 Filed 02/22/22 Page 3 of 12

WHEREFORE, defendant AVIANCA, INC., prays that this action now pending in the
Supreme Court of the State of New York for New York County be removed therefrom to this
Court.
Dated: February 22, 2022
New York, New York
Respectfully submitted,

CONDON & FORSYTH LLP

By /s/Bartholomew J. Banino
Bartholomew J. Banino (BB 4164)
Marissa N. Lefland (ML 8217)
Times Square Tower
7 Times Square, 18th Floor
New York, New York 10036
Tel: [phone]
[e-mail]
[e-mail]
Attorneys for Defendant
AVIANCA, INC.

-3-

Case 1:22-cv-01461-PKC Document 1 Filed 02/22/22 Page 4 of 12

AFFIDAVIT OF SERVICE
STATE OF NEW YORK

)
) ss:
COUNTY OF NEW YORK )
Beatriz Romero, being duly sworn, deposes and says that deponent is not a party to the
action, is over 18 years of age and resides in Monroe, New York. That on the 22 nd day of
February 2022 deponent served the within Notice of Removal with Civil Cover Sheet upon:
Steven Schwartz, Esq.
LEVIDOW, LEVIDOW & OBERMAN, P.C.
299 Broadway-Suite 1800
New York, New York 10007
at the address designated by said attorneys for that purpose by depositing same enclosed in a
postpaid properly addressed wrapper, in an official depository under the exclusive care and
custody of the United States Postal Service within the State of New York.

_____________________________
Beatriz Romero
Sworn to before me this
22nd day of February 2022
_______________________
Notary Public

-4-

Case 1:22-cv-01461-PKC Document 1 Filed 02/22/22 Page 5 of 12

EXHIBIT A

Case 1:22-cv-01461-PKC Document 1 Filed 02/22/22 Page 6 of 12

SUPREME COURT OF THE STATE OF NEW YORK
COTINTY OF NEW YORK

X
ROBERTO MATA,

r'dex

goll
No.: \5\ Sq/

Date Purch

ased:Llrf

SoJL

Plaintiff(s),
'il

SUMMONS
-against-

Plaintiff designates
NEW YORK County
place of trial.

I

as the

AVIANCA, INC.,
The basis of the
venue is defendant's
place of business.

TO THE ABOVE-NAMED DEFENDANT:

YOU ARE HEREBY SUMMONED to answer the complaint in this action and to serve a
copy of your answer, or,

if the complaint is not served with this summons, to serve a notice of

appearance, on the Plaintiffs Attorneys(s) within twenty (20) days after the service

of

this

summons, exclusive of the date of service or within thirty (30) days after the service is complete

if this summons is not personally delivered to you within the State of New York; and in case of
your failure to appear or answer, judgment will be taken against you by default for the relief
demanded in the complaint.
Dated: New York, New York
January 31,2022
Yours etc.,

STEVEN

TZ, ESQ
W & OBERMAN, P.C.
Attorneys for Plaintiff(s)
299 Broadway-Suite 1 800
New York, New York 10007
(212) 964-32e0
S

LEVIDOW

Defendant(s) Address

I

CONDON & FORSYTH, LLP, 7 Times Square NY, NY 10036 Att. Bartholomew Banino,
Esq. accepting service on behalf of AVIANCA,INC.

Case 1:22-cv-01461-PKC Document 1 Filed 02/22/22 Page 7 of 12

SUPREME COURT OF THE STATE OF NEW YORK
COTINTY OF NEW YORK

X

Index No.:

ROBERTO MATA.

Plaintiff,

VBRIFIED
COMPLAINT

-against-

AVIANCA,INC.,
Defendant(s).

X

SIRS:

-

The plaintiff, complaining of the defendant by his attorneys, LEVIDOW, LEVIDOW

& OBERMAN, P.C., sets forth
I

.

and alleges upon information and belief as follows:

That at all times hereinafter mentioned the plaintiff resides in the County of Nassau, City
and State of New York.

2.

That at all times hereinafter mentioned defendant AVIANCA, [NC., (hereinafter referred
to as AVIANCA) was and still is a domestic limited liability company existing uncler and
pursuant to the laws of the State of New york.

3.

That at all times hereinafter mentioned defendant AVIANCA owned Avianca Airlines
more specifically the airplane en route on flight 670 from El Salvador to New york JFK

Airport.

4.

That at all times hereinafter mentioned defendant

AVIANCA operated the airplane

en route

on flight 670 from El Salvador to New York JFK Airport.

5.

That at all times hereinafter mentioned defendant AVIANCA maintained the airplane en
route on flight 670 from El Salvador to New york JFK Airport.

6'

That at all times hereinafter mentioned defendant AVIANCA managed the airplane en
route on flight 670 from El Salvador to New york JFK Airport.

Case 1:22-cv-01461-PKC Document 1 Filed 02/22/22 Page 8 of 12

7.

That at all times hereinafter mentioned defendant AVIANCA controlled the airplane en
route on flight 670 from El Salvador to New York JFK Airport.

8.

That at all times hereinafter mentioned defendant AVIANCA, by its agents, servants andlor
employees, was occupying the aforementioned airplane en route on flight 670 from El
Salvador to New York JFK Airport.

9.

That at all times hereinafter mentioned defendant AVIANCA, by its agents, servants and/or
employees, was at the aforementioned airplane en route on flight 670 from El Salvador to

New York JFK Airport.
10. That at all times hereinafter mentioned defendant

AVIANCA was the managing agent fbr

all or part of the aforementioned airplane en route on flight 670 from El Salvador to New
York JFK Airport.
11. That at

all times hereinafter mentioned the plaintiff ROBERTO MATA was a passenger

on flight 670.
12. That on the 27th day of August, 2019, during the hours

of I 1:00pm through l:00am, while

the plaintiff was a passenger on flight 670 from San Salvador to New York JFK Airport,
an employee

of Avianca Airlines struck the plaintiff in his left knee with

a metal serving

cart causing plaintiffto suffer severe personal injuries.
13. That the defendant was careless, reckless and negligent in causing metal serving cart to be

handled in a careless and negligent manner, in failing to have metal serving cart under
reasonable and proper control;

in causing and permitting the metal serving cart to

be

handled in an unalert and inattentive manner.
14. That the aforesaid occunence and injuries resulting to the plaintiff therefrom were caused

solely and wholly as a result of the negligence of the defendants without any negligence

Case 1:22-cv-01461-PKC Document 1 Filed 02/22/22 Page 9 of 12

on the part of the plaintiff contributing thereto.
15. That as a result of the aforesaid accident,

plaintiff sustained severe and crippling injuries

which are hereinafter more fully alleged.
16. That by reason of the aforesaid, this

plaintiff was

caused to sustain and did suffer grievous

and painful injuries to his body and limbs and damage and injury to his nervous system

and became sick, sore, lame and disabled, causing his to be incapacitated from the
performance of his usual occupation or duties, thereby sustaining a loss of earnings, and

plaintiff was caused to incur and spend sums for medical care and attendance and he may
be forced to expend further sums for medical care and treatment and he may in the future

be incapacitated from the performance of his usual occupation or duties and upon
information and belief, some of his injuries are of a permanent nature.

WHEREFORE, plaintiff demands judgment against the defendant in an amount which
exceeds the jurisdictional limits of all lower courts which would otherwise have jurisdiction.

Yours etc.,
LEVIDOW,

&oB

By
STEVEN
Attorneys for Plaintiff
299 Broadway Ste. 1800
New York, New York 10007
(212) 964-32e0

, P.C.

Case 1:22-cv-01461-PKC Document 1 Filed 02/22/22 Page 10 of 12

STATE OF NEW YORK
) ss.:
COUNTY OF NEW YORK

)
)

STEVEN SCHWARTZ, afftms under the penalties of perjury the following:
That he is a member of the firm of LEVIDOW, LEVIDOW

& OBERMAN,

p.C.,

attorneys for the plaintiff(s) herein.

That he has read and knows the contents of the foregoing Summons and Complaint,
that the same is true of his own knowledge except as to the matters therein stated to be alleged on

information and belief and that as to those matters, he believes it to be true,

That the reason why this verification is made by your affirmant instead of by the

plaintiff(s) is because the plaintiff(s) is not now within the County of New York, which is the
County where your affirmant has his office. Your affirmant further says that the grounds of his
belief as to all matters in the said Complaint are statements of said plaintiff(s), papers and records
in his possession, and a general investigation of the facts of this case.

Dated:

New York, New York
January 31,2022

S

Case 1:22-cv-01461-PKC Document 1 Filed 02/22/22 Page 11 of 12

,+sei

NYSCEF Confirmation Notice
New York County Supreme Court

W

The NYSCEF website has received an electronic filing on 0210212022 09:26 AM. Please keep this notice
as a confirmation of this filing.

lndex Number NOT assigned
Robefto Mata v. AVIANCA, tNC.,
Assigned Judge: None Recorded

Documents Received
Doc

#

].

on

O2lO2l2O22 O9t26 AM

Document Type
SUMMONS

+

COMPLAINT

Filing User
Peter P Loduca I [e-mail] i12129643290
299 Broadway Ste l-800, New York, NY 10007

E-mail Notifications
An email regarding this filing has been sent to the following

PETER P. LODUCA

on O2/02t2022 Og:26

AM:

- p,[e-mail]

Email Notifications NOT Sent
Role

Pafty

Attorney

Respondent

AVIANCA, INC.,

No consent on record

* Court rules require hard copy service upon non-participating parties and attorneys who have opted-out or declined
consent.

Hon. Milton A. Tingling, New York County Clerk and Clerk of the Supreme Court
Phone:

646-386-5956 Website: http://www.nycourts.gov/courts/ljd/supctmanh/county_clerk_operations.shtml

NYSCEF Resource Center, [e-mail]
Phone: [phone] | Fax: (2I2) 407-9146 | Website: www.nycourts.gov/efile
Page

I of

I

Case 1:22-cv-01461-PKC Document 1 Filed 02/22/22 Page 12 of 12
INDEX NO.:
SUPREME COURT OF TIIE STATE OF NEW YORK
COUNTY OF NEW YORK

ROBERTO MATA,

Plaintif(s),
-against-

AVIANCA,INC.,
Defendant(s).

SUMMONS & VERIFIED COMPLAINT
I,EVIDOW, LEVIDOW & OBERMAN, P.C.
Attorneys for Plaintiff(s)
299 Broadway, Suite 1800
New York, New York 10007
(2Lz)e64-329O
CERTIFICATION PURSUANT TO 22 N.Y.9.R.R. S130-1.1a
STEVEN A. SCHIVARTZ, ESQ, hereby certifies that, pursuant to 22 N.Y.C.R.R $ 130-1.1a, the

COMELAINT

Dated:

is not frivolous nor frivolously presented.

New York, New York
February 7, 2022
STEI,'EN

NOTICE OF ENTRY
duly entered in lhe

PLEASE TAKE NOTICE that the within is a (certified) true copy of a
qffice qf the clerk of the within named court

on-,

Dated:

New York, New York
20

20.

Yours etc,

LEVIDOW, LEVIDOW & OBERMAN. P.C,
By:

NOTICE OF SETTLEMENT
of which the within is a true copl, will be
one of tlre judges of tlte within nanrcd (.'ourl, ut

PLEASE TAKE NOTICE that an order
presented for settlenrcnt to the Hon.

20_,

on

Dated:

at

a.m./p.m.

New Yorh New York
20
Yours etc.

LEVIDOW, LEI1DOW & OBERMAN, P.C.
By: