Kelly et al v. Snap-On Incorporated et al

Filing 33

DECISION AND ORDER: The plaintiffs' motion to join Prohaska as a defendant, Docket Item 22, is GRANTED. The Clerk of the Court shall add Nicholas J. Prohaska as a defendant. Because joining Prohaska destroys complete diversity, the plaintiffs&# 039; motion to remand also is GRANTED, and the case is REMANDED to New York State Supreme Court, Niagara County. The Clerk of the Court shall close the case. SO ORDERED. Issued by Hon. Lawrence J. Vilardo on 5/22/2023. (WMH)Clerk to Follow up

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

TAMMY L. KELLY as Power of Attorney
for JOHN M. MOUDY,
Plaintiffs,
v.

21-CV-729-LJV
DECISION & ORDER

SNAP-ON INCORPORATED, et al.,
Defendants.
On February 16, 2021, the plaintiffs, Tammy L. Kelly and John M. Moudy, filed a
complaint in New York State Supreme Court, Niagara County. Docket Item 2-2. They
allege that Moudy sustained serious injuries when he was struck by a “van truck”
operated by Nicholas J. Prohaska, who they allege was an agent of the defendants,
Snap-on Incorporated and Snap-on Tools Company, LLC (collectively, the “Snap-on
defendants”). See id.; see also Docket Item 21. The Snap-on defendants then
removed the case to this Court based on diversity of citizenship. See Docket Item 2 at
2.
On August 31, 2021, the plaintiffs moved to join Prohaska as a defendant and,
because doing so would destroy diversity and deprive this Court of subject matter
jurisdiction, to remand the case to state court. Docket Item 14. That same day, the
Snap-on defendants moved to dismiss the complaint under Federal Rule of Civil
Procedure 12(b)(6). Docket Item 13.
After both motions were fully briefed, on July 14, 2022, this Court issued a
decision and order denying the plaintiffs’ motions without prejudice. Docket Item 20.

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The Court also found that the complaint was subject to dismissal but gave the plaintiffs
leave to file an amended complaint correcting the deficiencies noted in that decision and
order. See id.
About a month later, the plaintiffs filed an amended complaint, Docket Item 21,
and they renewed their motions to join Prohaska as a defendant and to remand the
case to state court, Docket Item 22. 1 On September 23, 2022, the Snap-on defendants
responded to the plaintiffs’ renewed motions to join and remand, Docket Item 28, and
they again moved to dismiss, Docket Item 27. On October 14, 2022, the plaintiffs
responded to the motion to dismiss, Docket Item 31, and on November 4, 2022, the
Snap-on defendants replied in further support of the motion to dismiss, Docket Item 32.
The plaintiffs did not separately reply in further support of their motions to join Prohaska
as a defendant and to remand.
For the reasons that follow, the plaintiffs’ motion to join Prohaska as a defendant
is granted. Because joining Prohaska as a defendant destroys complete diversity, the
plaintiffs’ motion to remand also is granted and the case is remanded to New York State
Supreme Court, Niagara County. The Court leaves the resolution of the Snap-on

At first, the plaintiffs moved to join only Prohaska as a defendant, Docket Item
14; this Court denied that motion without prejudice but gave the plaintiffs leave to renew
their motion to join Prohaska, Docket Item 20. When they renewed their motion,
however, the plaintiffs also asked to join Snap-on Credit, LLC (“Snap-on Credit”), as a
defendant. Docket Item 22. On March 17, 2023, the New York State Supreme Court,
Niagara County, granted Snap-on Credit’s motion for summary judgment and dismissed
the plaintiffs’ claims against Snap-on Credit with prejudice. See Kelly v. Prohaska, No.
E167799/2019, Docket Item 59 (Sup. Ct. Niagara Cnty. Mar. 17, 2023). Because
joining Prohaska as a defendant deprives this Court of subject matter jurisdiction, and
because the viability of the plaintiffs’ claims against Snap-on Credit may be affected by
the state court’s decision, the Court leaves the plaintiffs’ request to join Snap-on Credit
as a defendant to the state court to address.
1

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defendants’ motion to dismiss the amended complaint, as well as the plaintiffs’ request
to join Snap-on Credit as a defendant, for the state court to address.
FACTUAL AND PROCEDURAL BACKGROUND 2
On March 26, 2018, Prohaska “crashed [a truck] into a motor vehicle driven by
John M. Moudy, severely injuring him.” Docket Item 21 at ¶ 11. Prohaska was driving a
“mobile Snap-on truck” at the time, which included the Snap-on defendants’ “logo and
branding as well as [Prohaska’s] name emblazoned on it.” Id. (capitalization removed).
The truck that Prohaska was driving is “designed to carry and display products made by
[the Snap-on defendants],” and Prohaska “was on the way to his first service call of the
day to visit [the Snap-on defendants’] customers on [the Snap-on defendants’] ‘List of
Calls.’” Id. at ¶¶ 11, 13. The plaintiffs say that Prohaska “divert[ed] his attention from
his driving duties” and negligently caused the car accident. Id. at ¶ 23.
About a year later, Kelly and Moudy sued Prohaska and Snap-on Credit in New
York State Supreme Court, Niagara County. See Docket Item 14-5. In the complaint in
that case, the plaintiffs alleged that the 2018 accident was caused by Prohaska’s
negligent conduct and that Snap-on Credit, as owner of the vehicle and as Prohaska’s
employer, was liable for his negligence. See id.
Nearly two years after filing that complaint, Kelly and Moudy commenced a
second action—the case at bar against the Snap-on defendants—in the same court.

The following facts are taken from the amended complaint, Docket Item 21, and
the procedural history of the case. When deciding a motion to join a defendant under
Federal Rule of Civil Procedure 20(a), a court “must accept the factual allegations in
[the] complaint as true.” 2386 Hempstead, Inc. v. WFG Nat’l Title Ins. Co., 2023 WL
2822553, at *4 (S.D.N.Y. Apr. 7, 2023).
2

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Docket Item 2-2. In the original complaint in this case, the plaintiffs alleged that at the
time of the collision, Prohaska was driving the vehicle as “an agent, servant[,] and/or
employee” of at least one of the Snap-on defendants. See id. at ¶¶ 9-10. They alleged
that the 2018 accident “was caused as a result of the negligent, careless, reckless[,]
and unlawful conduct on the part of the [Snap-on] defendants,” including their “fail[ure]
. . . to properly train [their] agents,” their “fail[ure] . . . to properly and adequately screen
persons with access to or authorization to use Snap-on vehicles,” and their “negligent[]
ret[ention of] Nicholas J. Prohaska.” Id. at ¶ 10. And they alleged that the Snap-on
defendants also were “liable for the actions of Nicholas J. Prohaska based on [the]
theory of respondeat superior.” Id. at ¶ 12.
According to the plaintiffs, they “commenced [those] two separate but related
actions . . . with the intent to consolidate [them] in New York [State] Supreme Court,
Niagara County.” Docket Item 22-1 at 2. But before the plaintiffs could move to
consolidate the first and second cases in state court, the Snap-on defendants—both
foreign companies organized outside New York State with principal places of business
in Wisconsin—removed the second case to this Court. See Docket Item 2.
So to accomplish their goal, the plaintiffs then moved to join Prohaska as a
defendant and, because joining Prohaska would defeat diversity, to remand the case for
lack of subject matter jurisdiction. 3 Docket Item 14. That same day, the Snap-on
defendants moved to dismiss the complaint. Docket Item 13. And after this Court

The plaintiffs and Prohaska are all citizens of New York, so joining Prohaska as
a defendant would destroy complete diversity. See Docket Item 21 at ¶¶ 2-3, 10. And
the parties do not dispute that diversity of citizenship is the only possible basis for this
Court’s subject matter jurisdiction.
3

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denied the plaintiffs’ motions without prejudice and found that the Snap-on defendants’
motion to dismiss would be granted if the plaintiffs did not amend their complaint,
Docket Item 20, the plaintiffs filed an amended complaint, Docket Item 21, and both
sides renewed their respective motions, Docket Items 22 and 27.
LEGAL PRINCIPLES
“If after removal the plaintiff seeks to join additional defendants whose joinder
would destroy subject matter jurisdiction, the court may deny joinder, or permit joinder
and remand the action to the State court.” 28 U.S.C. § 1447(e). “To decide whether to
permit diversity-destroying joinder, courts in this [C]ircuit generally apply a two-part
test.” Barber v. Somal Logistics Ltd., 2021 WL 2159646, at *2 (W.D.N.Y. May 27,
2021). “First, the court must determine whether joinder is permissible under Rule
20(a)(2); then, if so, the court must conduct a ‘fundamental fairness’ analysis to
determine whether the balancing of certain factors ‘weighs in favor of joinder and its
necessarily attendant remand.’” Id. (quoting Balfour v. Quest Diagnostics Inc., 2012 WL
335666, at *1 (S.D.N.Y. Feb. 1, 2012)).
Under Rule 20(a)(2), multiple defendants “may be joined in one action” if “(A) any
right to relief is asserted against them jointly, severally, or in the alternative with respect
to or arising out of the same transaction, occurrence, or series of transactions or
occurrences” and “(B) any question of law or fact common to all defendants will arise in
the action.” Fed. R. Civ. P. 20(a)(2). If joinder is permissible under Rule 20(a)(2), the
court then considers “whether joinder that will lead to [] remand to state court comports
with principles of fundamental fairness.” Abraham Nat. Foods Corp. v. Mount Vernon
Fire Ins. Co., 576 F. Supp. 2d 421, 424-25 (E.D.N.Y. 2008). Under that analysis, the
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court evaluates: “(1) any delay, as well as the reason for delay, in seeking joinder; (2)
[the] resulting prejudice to [the] defendant; (3) [the] likelihood of multiple litigation; and
(4) [the] plaintiff’s motivation for the amendment.” Hudson EFT, LLC v. Westchester
Surplus Lines Ins. Co., 2020 WL 6712203, at *3 (S.D.N.Y. Nov. 16, 2020).
DISCUSSION
I.

FAILURE TO INCLUDE AN AFFIDAVIT
As an initial matter, the Snap-on defendants argue that the plaintiffs’ “failure to

submit an affidavit or declaration in support of their motion as required under Local Rule
7 is fatal to their motion.” Docket Item 28 at 16 (capitalization removed). Western
District of New York Local Rule of Civil Procedure 7(a)(3) provides that, except for
certain motions brought under Rule 12, “motions and opposition to motions shall be
supported by at least one [] affidavit, declaration[,] or affirmation.” Loc. R. Civ. P.
7(a)(3). Local Rule 7(a)(3) further provides that a party’s “[f]ailure to comply with this
requirement may constitute grounds for resolving the motion against the non-complying
party.” Id. (emphasis added).
So while Local Rule 7(a)(3) generally requires a moving party to support a motion
with at least one supporting affidavit or declaration, that rule also makes clear that the
court need not deny a motion when the moving party fails to do so. And “[a] district
court has broad discretion to determine whether to overlook a party’s failure to comply
with local court rules.” Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001).
Indeed, this Court extended similar leniency to the Snap-on defendants earlier in this
case. See Docket Item 20 at 2 n.1 (accepting the Snap-on defendants’ late filings over
the plaintiffs’ objections). In light of that discretion, and because the Snap-on
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defendants do not explain how the plaintiffs’ failure to include an affidavit with their
motions to amend and remand is in any way prejudicial, the Court excuses the plaintiffs’
noncompliance with Local Rule 7(a)(3) here. 4
II.

JOINDER OF A NON-DIVERSE DEFENDANT
With those preliminary procedural issues addressed, the Court turns to the

substance of the plaintiffs’ motion to join Prohaska as a defendant. For the reasons that
follow, the plaintiffs’ motion satisfies the two-part test for permissive joinder of a nondiverse defendant.
A.

Rule 20(a)

First, Prohaska can be joined as a defendant under Rule 20(a). Clearly, the
plaintiffs’ claims against Prohaska and the Snap-on defendants “aris[e] out of the same
transaction, occurrence, or series of transactions or occurrences,” Fed. R. Civ. P.
20(a)(2)(A)—namely, the 2018 accident. See Docket Item 21. And the plaintiffs assert
that the “[t]he crash was caused by [the Snap-on defendants], Snap-on Credit, [] and
Nicholas Prohaska, jointly and severally.” 5 Docket Item 21 at ¶ 33 (capitalization

The Snap-on defendants also suggest that the plaintiffs’ failure to provide a
supporting affidavit and their failure to verify their amended complaint means that this
Court cannot accept the allegations in that amended complaint as true. Docket Item 28
at 18. But Federal Rule of Civil Procedure 11(a) provides that, in federal court, “a
pleading need not be verified or accompanied by an affidavit” unless a “rule or statute
specifically states otherwise.” Fed. R. Civ. P. 11(a). So the plaintiffs’ failure to file an
affidavit or verify their amended complaint does not affect whether their allegations are
accepted as true for either a motion for permissive joinder or a motion to dismiss.
4

The plaintiffs’ amended complaint is not a model of clarity as to which claims
are asserted against which defendants, or even what those claims are. Moreover, the
plaintiffs did not list Prohaska as a defendant in either the caption or the “parties”
section of the amended complaint, see Docket Item 21; nor did they submit a proposed
amended complaint alongside their motion to join Prohaska that includes Prohaska in
5

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removed). So the plaintiffs’ claims will involve common questions of law and fact
regarding the 2018 accident and Prohaska’s and the Snap-on defendants’ respective
liability for injuries caused by that accident. McGrath v. Indus. Waste Techs., 2021 WL
791537, at *6 (S.D.N.Y. Feb. 26, 2021) (finding that a plaintiff’s claims against an
individual driver and corporate defendant “necessarily involve[] questions of law and fact
common to all defendants, including the apportionment of fault and liability”).
The Snap-on defendants assert that Rule 20(a) is not satisfied here because
“[t]he allegations against the Snap-on [d]efendants are not common to the allegations
against Prohaska” and different legal standards will govern the claims against Prohaska
and the Snap-on defendants. See Docket Item 28 at 11-15. But Rule 20(a) does not
require that a plaintiff’s claims against a proposed defendant be perfectly coextensive
with the plaintiffs’ claims against an existing defendant. See Kehr ex rel. Kehr v.
Yamaha Motor Corp., U.S.A., 596 F. Supp. 2d 821, 827 (S.D.N.Y. 2008) (“There is no
requirement[] that all questions of law and fact be identical in order for there to be
permissive joinder under Rule 20(a).”). Instead, the Federal Rules of Civil Procedure
the caption or the “parties” section, see Docket Item 22-3 (attaching the amended
complaint). Nevertheless, it is clear from the plaintiffs’ motion to join, and from the
substance of their amended complaint, that they seek to pursue claims against
Prohaska. See, e.g., id. at ¶¶ 32 (alleging that “[t]he crash was caused by the negligent
operation of the Snap-on truck by Nicholas Prohaska” (capitalization removed)); 33
(asserting that the Snap-on defendants, Snap-on Credit, and Prohaska are “jointly and
severally” liable for the accident). And while the Snap-on defendants note that
Prohaska is “not listed in the caption,” they also acknowledge that the amended
complaint “contains allegations against Prohaska.” Docket Item 28 at 4. Although
attaching a proposed amended complaint that named Prohaska in the caption and
explicitly alleging separate claims against him would have been helpful in deciding the
plaintiffs’ motions, the plaintiffs’ failure to do so does not itself warrant denying their
motions. See Phillips v. Girdich, 408 F.3d 124, 128 (2d Cir. 2005) (“We will [] excuse
technical pleading irregularities as long as they neither undermine the purpose of notice
pleading nor prejudice the adverse party.”).
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generally encourage “the broadest possible scope of action consistent with fairness to
the parties.” United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 724 (1966) (“[J]oinder
of claims, parties[,] and remedies is strongly encouraged.”). And courts in this Circuit
routinely find that Rule 20(a) is satisfied when a plaintiff seeks to hold an individual and
corporate defendant liable for a car accident. See, e.g., Jerido v. Uber Techs., Inc.,
2022 WL 17986179, at *4 (S.D.N.Y. Dec. 29, 2022); Barber, 2021 WL 2159646, at *3;
see also McGrath, 2021 WL 791537, at *6 (“Courts in this District have previously held
that allegations of a common underlying accident can satisfy the requirements of Rule
20(a)(2).”).
Finally, the Snap-on defendants maintain that in deciding whether to allow joinder
of a defendant under Rule 20(a), a court must first decide whether to permit an
amended pleading and therefore “apply the pleading requirements of [Rule] 15”; for that
reason, they say that this Court must decide whether the plaintiffs’ proposed claims
against Prohaska could withstand a motion to dismiss under Rule 12(b)(6). See Docket
Item 28 at 8-10. Although some courts have evaluated a motion to join a defendant
under Rule 20(a) using the standard that applies to a motion to amend under Rule 15
(and, in turn, a motion to dismiss under Rule 12(b)(6)), see, e.g., McGrath, 2021 WL
791537, at *8-10, it is far from clear that a court must do so, see Leifer v. JPMorgan
Chase Bank, N.A., 2020 WL 1130727, at *3 (S.D.N.Y. Mar. 9, 2020) (“[I]t is not entirely
clear that futility is part of the analysis for permissive joinder under Rule 20(a).”). In fact,
courts in this Circuit have granted motions to join nondiverse defendants and remanded
cases without considering whether the proposed claims against the new defendant
could withstand a motion to dismiss. See Jerido, 2022 WL 17986179, at *3-8; Corona

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Grp., LLC v. Park, 2022 WL 16838191, at *4-5 (S.D.N.Y. Nov. 9, 2022). In light of that,
and because this Court already gave the plaintiffs leave to amend their complaint in its
prior order, the Court evaluates the plaintiffs’ motion using only the two-part test outlined
above. 6
B.

Fundamental Fairness

Because joining Prohaska is permissible under Rule 20(a), the Court turns to
whether doing so would comport with fundamental fairness. As mentioned above, that
analysis requires a court to evaluate “(1) any delay, as well as the reason for delay, in
seeking joinder; (2) [the] resulting prejudice to [the] defendant; (3) [the] likelihood of

Indeed, because this Court already gave the plaintiffs leave to amend, it is
unclear why this Court should again ask whether amendment is permissible under Rule
15(a) when evaluating whether joinder is permissible under Rule 20(a). And once
Prohaska is joined as a defendant, this Court lacks subject matter jurisdiction and must
remand the case under 28 U.S.C. § 1447(e). So joining Prohaska and then proceeding
to evaluate the merits of the plaintiffs’ claims makes little sense, especially when those
claims will be evaluated under a separate pleading standard after remand. See, e.g.,
Williams v. Citigroup Inc., 659 F.3d 208, 215 n.4 (2d Cir. 2011) (per curiam) (noting that
the pleading standard in New York State court “is more lenient than the ‘plausibility’
standard applicable in federal courts”).
6

In any event, the plaintiffs allege that Prohaska negligently caused the accident
because, among other things, he was “operating the Snap-on truck on March 26,
2018[,] . . . while diverting his attention from his driving duties.” Docket Item 21 at ¶ 23
(capitalization removed). To allege a negligence claim under New York State law, a
plaintiff must allege “(i) a duty owed to the plaintiff by the defendant; (ii) breach of that
duty; and (iii) injury substantially caused by that breach.” Lombard v. Booz-Allen &
Hamilton, Inc., 280 F.3d 209, 215 (2d Cir. 2002). And “New York law imposes a duty
upon drivers to operate their vehicles with reasonable care,” which includes “keep[ing] a
proper lookout under the circumstances then existing to see and be aware of what [is] in
their view.” Vaselli v. United States, 2014 WL 4961421, at *5 (E.D.N.Y. Oct. 3, 2014)
(alterations, citation, and internal quotation marks omitted). So even if this Court were
to conduct a separate analysis under Rule 15 in deciding whether Prohaska can be
joined under Rule 20(a), the plaintiffs’ claims likely would survive.
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multiple litigation; and (4) [the] plaintiff’s motivation for the amendment.” Hudson EFT,
2020 WL 6712203, at *3. All four of those factors weigh in favor of joining Prohaska.
First, any delay in moving to join Prohaska does not weigh against the plaintiffs.
Although the Snap-on defendants criticize the plaintiffs’ general delay in bringing this
case against them, see Docket Item 28 at 19, they do not separately address whether
the plaintiffs unjustifiably delayed seeking to join Prohaska as a defendant after the
case was removed to this Court. See Jerido, 2022 WL 17986179, at *5 (“[D]elay [in
seeking joinder] is measured from the date of removal, not the day upon which the case
was initiated.”). And the two-month gap between the Snap-on defendants’ removing the
case to this Court and the plaintiffs’ moving to join Prohaska as a defendant is not
significant, especially given the agreement, shortly after the case was removed, to
extend the plaintiffs’ time to move to remand. See Docket Item 10 (stipulation extending
time); see also Balfour, 2012 WL 335666, at *3 (finding two months between removal
and motion to join defendant not an unjustifiable delay); cf. Corona Grp., 2022 WL
16838191, at *4 (“Waiting six months or longer after the date of removal to move for
joinder of a nondiverse defendant generally weighs against joinder, particularly where
there is no explanation given for the delay.”).
The Court likewise finds that any prejudice to the Snap-on defendants does not
weigh against joining Prohaska here. As an initial matter, the Snap-on defendants do
not explicitly address whether joining Prohaska now would unduly prejudice them;
instead, the Snap-on defendants largely argue that the plaintiffs unjustifiably delayed
bringing this case against them in the first instance. See Docket Item 28 at 21-22. True

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or not, that does not address the fundamental fairness factors listed above. 7 And
joining Prohaska will not otherwise prejudice the Snap-on defendants: This case
remains in its earliest stages, which mitigates any prejudice resulting from this Court’s
remanding the case. See Durstenberg v. Electrolux Home Prods., Inc., 2016 WL
750933, at *2 (S.D.N.Y. Feb. 23, 2016) (finding no prejudice where “[t]his case is in its
initial stages; there has not even been any discovery”).
Denying the plaintiffs’ motion also would risk multiple litigation in federal and
state court. While it is not guaranteed that the plaintiffs will successfully consolidate this
case with the first action after remand, it is certain that the two cases could not be
consolidated if this case remained in this Court. The third factor therefore also favors
granting the plaintiffs’ motion for joinder. 8 See Barber, 2021 WL 2159646, at *4
(“[W]ithout joinder, two trials and two outcomes are guaranteed.”).
Finally, the plaintiffs’ motivation in joining Prohaska does not weigh against
denying their motion. Generally, “unless a plaintiff seeks to add a non-diverse party
solely to destroy the court’s basis for diversity jurisdiction, the court is required if the
other factors are met to remand the action to state court.” Balfour, 2012 WL 335666, at
*2 (alterations omitted) (emphasis in original). The plaintiffs say that their intention all
along was to consolidate this case with the first action and that their motivation for
The Snap-on defendants also argue that the plaintiffs “have merely alleged
labels and conclusions.” Docket Item 28 at 22. But that argument goes to the viability
of the case in general, not whether joining Prohaska now would be prejudicial.
7

To be sure, “any risk of multiple litigation could have been eliminated by joining
all defendants in the initial action,” or perhaps by moving to join the Snap-on defendants
in the first state court action rather than by filing a separate case. See Jerido, 2022 WL
17986179, at *6 (alterations omitted). While that might reduce the weight placed on this
factor, see id., the factor still weighs in the plaintiffs’ favor.
8

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joinder therefore is not to destroy diversity but to pursue that strategy. See Docket Item
22-1 at 8-9. The Court accepts that plausible—indeed commonsense—explanation as
sufficient to show that the plaintiffs’ motivation for joining Prohaska is not impermissible.
See, e.g., Jerido, 2022 WL 17986179, at *7 (“Plaintiff’s stated purpose for joinder—to
promote judicial efficiency by preventing redundant discovery and witness testimony at
two separate trials—is sufficient to outweigh any suspect timing regarding consolidation
or joinder.” (citation and internal quotation marks omitted)).
In sum, the four fundamental fairness factors weigh in favor of joining Prohaska
here, and the Court grants the plaintiffs’ motion to join Prohaska as a defendant. And
because this Court now lacks subject matter jurisdiction, the case is remanded to New
York State Supreme Court, Niagara County. See 28 U.S.C. § 1447(e). The Court
leaves to the state court the resolution of the Snap-on defendants’ renewed motion to
dismiss the amended complaint, Docket Item 27, and the plaintiffs’ request to join Snapon Credit as a defendant, Docket Item 22.
CONCLUSION
For the reasons stated above, the plaintiffs’ motion to join Prohaska as a
defendant, Docket Item 22, is GRANTED. The Clerk of the Court shall add Nicholas J.
Prohaska as a defendant. Because joining Prohaska destroys complete diversity, the
plaintiffs’ motion to remand also is GRANTED, and the case is REMANDED to New
York State Supreme Court, Niagara County. The Clerk of the Court shall close the
case.

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SO ORDERED.
Dated: May 22, 2023
Buffalo, New York

/s/ Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE

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