Another silly appeal

Narvaez v Sammartino, 2017 NY Slip Op 07187 (1st Dept. 2017)

Put this one in the file for “s” for silly.

“The motion court properly exercised its discretion under CPLR 2001 in granting plaintiff’s motion to renew, as the record shows that on the prior motion, plaintiff’s opposition was not considered due to counsel’s inadvertent failure to comply with the court’s part rules. Counsel’s error did not cause significant prejudice, and plaintiff has been ordered to reimburse defendants for any resulting costs and fees incurred (see CPLR 2001; DePompo-Seff v Genovese Drug Stores, Inc., 13 AD3d 109 [1st Dept 2004]).”

“Venue was properly laid in Bronx County, as plaintiff resided there when the complaint was filed (see CPLR 503[a]; Cardona v Aggressive Heating, 180 AD2d 572, 573 [1st Dept 1992]).”

For starters, the motion should not have been denied because violation of a “part rule” whether it be 1) Non-hard copy; or 2) Non tabbed exhibits, should never form the basis of a denial of the motion.  The “default” was properly vacated and the plaintiff resided in the Bronx when the action was commenced.

What compelling argument can be made that someone who lives in Suffolk cannot testify in Bronx?  Clearly defendant would rather have a Suffolk County jury than a Bronx jury…  Can we just call this what it is?


Chehab v Roitman, 2014 NY Slip Op 05939 (2d Dept. 2014)

I have to give credit to Alla Kleban for locating this case.  Admittedly, I just scanned this one and did not pick up on any salient facts.  But there are many.

“To effect a change of venue pursuant to CPLR 510(1), a defendant must show that the plaintiff’s choice of venue is improper and that [his or her] choice of venue is proper” (Gonzalez v Sun Moon Enters. Corp., 53 AD3d 526, 526; see CPLR 511[b]; see also Lopez v K. Angle K Inc., 24 AD3d 422, 423). To succeed on his motion here, the defendant was obligated to demonstrate that, on the date that this action was commenced, neither of the parties resided in the county that was designated by the plaintiff (see Ramos v Cooper Tire & Rubber Co., 62 AD3d 773Baez v Marcus, 58 AD3d 585, 586; Corea v Browne, 45 AD3d 623, 624; see also Fiallos v New York Univ. Hosp., 85 AD3d 678, 678; Clarke v Ahern Prod. Servs., 181 AD2d 514, 515;Bradley v Plaisted, 277 App Div 620, 621). Only if the defendant made such a showing was the plaintiff required to establish, in opposition, via documentary evidence, that the venue he selected was proper (see Buziashvili v Ryan, 264 AD2d 797).

Here, the sole piece of evidence that the defendant submitted with respect to the issue of the plaintiff’s residence was the police accident report referable to the subject accident. This evidence merely showed that, at the time the accident occurred, the plaintiff had a residence in Texas. This evidence did not demonstrate that the plaintiff did not maintain a residence in Kings County at the time when the action was commenced, two months after the accident (see Ramos v Cooper Tire & Rubber Co., 62 AD3d at 773; Baez v Marcus, 58 AD3d at 586; Corea v Browne, 45 AD3d at 624; see also Fiallos v New York Univ. Hosp., 85 AD3d at 678; Clarke v Ahern Prod. Servs., 181 AD2d at 515; Bradley v Plaisted, 277 App Div at 621). Consequently, the defendant failed to meet his initial burden.

Although a plaintiff may choose venue based solely on a defendant’s address, as set forth in a police accident report (see Gonzalez v Weiss, 38 AD3d 492, 493; Furth v ELRAC, Inc., 11 AD3d at 510), a police accident report, standing alone, is not sufficient evidence to demonstrate that, on the date that an action is commenced, a plaintiff does not reside in the county where he or she elects to place the venue of trial. To the extent that this Court’s decisions in Samuel v Green (276 AD2d 687) and Senzon v Uveges (265 AD2d 476) may be read to indicate to the contrary, they should not be followed.

Accordingly, the Supreme Court properly denied the defendant’s motion to change the venue “

Supreme Court venue

Valley Psychological, P.C. v Government Employees Ins. Co., 2012 NY Slip Op 03921 (3d Dept. 2012)

“Initially, we note that there is no dispute that defendant had the right to file an amended answer to the complaint (see CPLR 3025 [a]), and since that amended answer superceded its prior answer, defendant had the right to serve with it a demand for a change of venue (see Penniman v Fuller & Warren Co., 133 NY 442, 444 [1892]; Corea v Browne, 45 AD3d 623, 634 [2007]). Since defendant’s motion to change venue was filed within 15 days of the service of that demand, Supreme Court should not have denied it as untimely. Parenthetically, we note that the amended answer contained nine additional affirmative defenses and there is no indication that it was filed to delay the prosecution of this action (see Boro Kitchen Cabinets v Spalt, 9 AD2d 925, 925 [1959]).”

“As for defendant’s contention that it was entitled to a change of venue as a matter of right, it argues that venue in Albany County was improper because neither party’s principal place of business is located there. In that regard, “a corporation is deemed a resident of the county in which its principal office is located” (Lombardi Assoc. v Champion Ambulette Serv., 270 AD2d 775, 776 [2000]), and “for the purposes of CPLR 503 (c), the location of a corporation’s principal office is determined solely by the designation in its certificate of incorporation” (id.; see Bakht v Southridge Coop. Section 4, Inc., 70 AD3d 988 [2010]; Biaggi & Biaggi v 175 Med. Vision Props., LLC, 70 AD3d 880 [2010]; Addo v Melnick, 61 AD3d 453 [2009]). Plaintiff’s certificate of incorporation designates Westchester County as its principal place of business. Defendant is a foreign corporation and is not required to designate a principal place of business in such a certificate (see Insurance Law § 108 [e]; Business Corporation Law § 1304 [a] [5]; Providence Washington Ins. Co. v Squier Corp., 31 AD2d 514, 514 [1968]), but maintains that its principal place of business in this state is located in Nassau County. Therefore, Albany County was not a proper venue for this action [FN1] (see Insurance Law § 108 [e]; Business Corporation Law § 1304 [a] [5]), and defendant was entitled to a change of venue as a matter of right (see CPLR 510 [1]; 511 [a]).”