Key Takeaway
Court dismisses venue change motion when defendant fails to prove plaintiff's improper venue choice with sufficient evidence beyond accident report.
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 choice of venue is proper” (Gonzalez v Sun Moon Enters. Corp., 53 AD3d 526, 526; see CPLR 511; 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 773; Baez 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 “
