Supreme Court, Bronx County

September 22, 2015,

A Bronx Estate Litigation Lawyer said that, defendant-appellant moved pursuant to CPLR 510(1) to change the venue of the instant matter from Bronx County to Westchester County more than three years after the commencement of the action and service of A-Scrap's answer. Appellant acknowledges that it has, almost from the beginning of this litigation, possessed the necessary information to move for a change of venue. However, it has failed to offer an adequate explanation for its inordinate delay and neglect in making such a request. Consequently, we cannot find that Special Term abused its discretion in denying appellant's motion.

Accordingly, the court held that the order of the Supreme Court, Bronx County, entered on June 14, 1982, which denied the motion to change the venue of the action from Bronx County to Westchester County, is affirmed, without costs or disbursements.

In a separate opinion, the injury court disagree with the conclusion reached by the majority which, in continuing the action in Bronx County, rewards the plaintiffs for what, on this record, appears to be a fraud on the court. The action, commenced in Bronx County, seeks to recover damages for personal injuries sustained in a motor vehicle accident which occurred on April 9, 1979. The accident occurred on Yonkers Avenue in Westchester County, when plaintiffs' vehicle was struck in the rear by a truck owned by defendant, and operated by defendant. Plaintiffs reside in Westchester County and A. Scrap has its principal place of business there. The summons denotes the basis for venue as the residence of defendant Jones, recorded thereon to be 175 Broadway, Bronx, New York. Issue was joined by A. Scrap by the service of its answer on September 13, 1979. Thereafter, plaintiffs purportedly effected substitute service upon Jones by mailing process to "his last known residence" at 175 North Broadway, Yonkers, Westchester County, and by affixing a copy of the summons to the door at that address as his "actual place of business, dwelling place or usual place of abode within the state" (CPLR 308[4] ). Defendant has not appeared in the action and, assuming the propriety of service, is in default.

On February 23, 1982, defendant moved, pursuant to CPLR 510(1), to change the venue of the action to Westchester County, alleging that venue had been improperly laid in Bronx County in that all of the parties, including the other defendant, resided in Westchester, where the accident occurred. Appellant claimed that it had been misled by the false representation contained on the face of the summons that Jones was a resident of the Bronx. The MV-104 filed by plaintiff listed as residence 30 Montague Street, Yonkers, also in Westchester County, which is an address different from where substitute service had purportedly been effected.

Special Term denied the motion solely upon the failure of appellant to adhere to the procedure contained in CPLR 511. Concededly, no demand for a change of venue was served nor was a motion made within 15 days thereafter. This, however, is not dispositive. The failure of a party to follow the statutory procedure is not absolute and does not preclude a subsequent motion to change the place of trial. In such a case, although the motion is too late to be made as of right, it nevertheless may be made and is addressed to the discretion of the court.

On this record, we fail to perceive the overriding need to protect parties who have resorted to "affirmative misrepresentation" in designating the county for trial. While it appears that three years did elapse before the motion for a change of venue was made, there is nothing in the record to support the finding of the majority that appellant acknowledged that, from the beginning of the litigation, it had the necessary information to move for a change of venue. The personal injury record does not disclose when appellant obtained a copy of the MV-104 which had been filed by plaintiffs or was aware of the misstatement of residence. As observed, defendant has not appeared and is not represented in this action. The answer served by defendant denies that, at the time of the accident, the truck was being operated by him with the permission or consent of the owner. Any delay in moving for relief is far outweighed by the fact that plaintiffs misrepresented the defendant’s residence as the basis for venue in instituting suit in Bronx County.

Moreover, it is further significant that this action can never proceed to trial in accordance with current court rules. NYCRR § 660.9(c), in providing for a general trial preference for personal injury actions, requires a showing that "the venue of the action was properly laid in the county in which it is pending, within the requirements of CPLR article 5." Here, since none of the parties reside in Bronx County, the designation of that county as the place for trial was improper (CPLR 503[a] and [c] ). Therefore, under the court rules applicable to New York and Bronx counties, a general preference may not be obtained so as to permit the action to proceed to trial.

Transfer of the action to Westchester County is also warranted under CPLR 327. All of the parties reside in Westchester County, where the accident occurred. The action has no nexus with Bronx County and, applying the doctrine of forum non conveniens under CPLR 327, the interest of substantial justice requires that the matter be transferred for trial to Westchester County, where the action should have been commenced in the first instance. It is clear that the only reason the action was instituted in Bronx County was for the convenience of plaintiffs' attorney, which is an irrelevant consideration. In view of the affirmative misrepresentation by plaintiffs when the action was commenced, no reason appears to continue the case for trial in a county which has no substantial relationship to either the issues or the parties.

Accordingly, the order, Supreme Court, Bronx County, entered June 14, 1982, denying the motion to change the venue of the action, should be reversed, the motion granted and the action transferred to Westchester County.

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Integrated Domestic Violence Court...cont

September 17, 2015,

This case raises two questions concerning application of the recently enacted Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA), set forth at article 5-A of the Domestic Relations Law: (1) whether (as the father urges) title 3 of that act requires this court to enforce a custody order issued by a court in the Dominican Republic, or (2) whether (as the mother and law guardian contend) this court may assume jurisdiction of the parents' custody dispute and modify or replace the Dominican court's order. After consultation with the original judge, consideration of the parties' residence status, and in light of allegations of an extensive history of domestic violence that were not presented to the Dominican court before its default order of custody was entered, this court assumes jurisdiction and sets the matter for trial.

Determination whether this controversy should remain with this court or be returned to the originating court in the Dominican Republic is governed by the recently enacted Uniform Child Custody and Jurisdiction Enforcement Act, effective April 28, 2002 and replacing the former "Uniform Child Custody and Jurisdiction Act" (UCCJA). Set forth at article 5-A of the Domestic Relations Law, this statutory scheme is designed to eliminate jurisdictional competition between courts in matters of child custody. Jurisdictional priority, under the UCCJEA, is always conferred to a child's "home state."

The legislative history of the UCCJEA establishes that domestic violence was very much on the minds of the drafters of the statute. While earlier laws had often presumed that the party fleeing the jurisdiction with children was the wrongdoer, experience showed that it was often a victim of domestic violence who sought protection in another jurisdiction. One important purpose of the UCCJEA was to bring that area of law into conformity with the Parental Kidnaping Prevention Act (28 USC § 1738A) and the "full faith and credit" requirements of the Violence Against Women Act. Domestic violence injury is also a factor to be considered when determining whether to retain jurisdiction in the United States in an international custody case under the International Parental Kidnaping Act, and can support refusal to repatriate a child.

New York State, in particular, went beyond the language proposed by the NCCUSL drafters of the UCCJEA, enacting additional provisions that confer special protection for victims of domestic violence. In a statement of legislative intent that introduces the UCCJEA, the Legislature mandated that issuance and enforcement of child custody and visitation should be accomplished "in a manner that ensures that the safety of the children is paramount and that victims of domestic violence and child abuse are protected."

Under title II of the UCCJEA, pursuant to a provision denying UCCJEA protection to a wrongdoer, a court cannot consider as a factor weighing against a party "any taking of the child, or retention of the child after a visit or other temporary relinquishment of physical custody, from the person who has legal custody, if there is evidence that the taking or retention of the child was to protect the party from domestic violence or the child or sibling from mistreatment or abuse."

We now consider (1) whether the UCCJEA requires immediate enforcement of the Dominican custody decree (as the father urges) or (2) whether, as the mother contends, this court may assume jurisdiction of the dispute and determine whether modification of the Dominican order is appropriate.

Expedited enforcement of a child custody determination is available through Domestic Relations Law § 77-g (3), under title III of the UCCJEA. Title III sets forth the proper procedure for registration of out-of-state custody decrees. Once properly registered, a foreign decree will be treated as the equivalent of a decree of this state and, once registered, any further contest to the decree is precluded. The decree may be registered with a simultaneous request for enforcement. Notably, these procedures were not followed here. Instead, the father filed a writ of habeas corpus under article 6 of the New York State Family Court Act, seeking immediate return of the child pursuant to the Dominican custody decree. At the time the father's writ of habeas corpus was first returnable, however, English language translations of the court documents were not available to this court. There could be no presumption that the Dominican personal injury court order was valid and enforceable. Before translations were obtained, the mother had filed her own petition for custody under article 6 of the New York State Family Court Act, raising serious allegations of domestic violence directed against herself and the children.

This court assumed temporary emergency jurisdiction in order to investigate further the domestic violence allegations.

Based on the presence of a criminal proceeding against the father, the filing of a new family offense petition, and the report of the law guardian that there was an extensive history of domestic violence in the family, this court stayed any enforcement proceedings until the underlying issues of domestic violence and the safety of the children could be resolved or a determination could be made that it was appropriate for this court to assume full jurisdiction of the matter.

Where, as here, there exists a custody order from another jurisdiction, it is incumbent that the temporary court contact the original court to "resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration of the temporary order." If the issuing court declines to retain jurisdiction because of significant connections between the child and the new state, the temporary court may assume permanent jurisdiction. That decision, however, is up to the original court, not the new.

This court assumes jurisdiction to modify the Dominican Republic custody order. As noted previously, under Domestic Relations Law § 75-a (11), "modification" does not necessarily mean a change in custody, only that this court's order, whatever it may be, will replace that of the Dominican court. Any measures requested by the parties, pursuant to Domestic Relations Law §§ 75-i, 75-j, and 75-k, to ease the difficulties of litigating a matter with history in two far-flung jurisdictions, will be readily entertained by the court and, where appropriate, granted, with court staff assisting in any way possible to implement these procedures.

Integrated Domestic Violence Court...cont

September 14, 2015,

Proof of service by mail to an address not specified in the part of the Dominican court record before this court was submitted to the Dominican court. The mother did not appear for the custody proceeding. In a decision dated April 17, 2002, the District Court found respondent in default for nonappearance and awarded full custody to the petitioner. Noting that the children had now been with their father for over a year, the court declined to move them again, citing the need for "stability and security in the future." The law guardian in the proceeding took the position that custody should be awarded to the father, noting that the mother "ceded custody of said children by means of an amicable agreement signed on the 1st of December of 2000," and urged adherence to that agreement. The mother, who asserts that she learned of the renewed custody proceeding only when she personal appeared in the Dominican Republic for a visit with the children in April 2002, filed an appeal on June 7, 2002 and inquiry was held in that court on August 7, 2002. In a decision dated October 22, 2002, the Appellate Court affirmed the grant of custody to the father.

Two weeks after the Dominican appellate decision, on November 8, 2002, the father was arrested in Bronx County for threatening to kill the mother. He was charged with two counts of aggravated harassment in the second degree and related lesser offenses. He asserted to the Criminal Justice Agency (CJA), which interviews criminal defendants prior to arraignment for the purpose of advising the court on bail, that he had been "self-employed" full time as an "entrepreneur" in the Bronx for the past two years. He gave as his address 1268 St. Nicholas Avenue, New York, New York 10033. He represented that he had lived alone at that address during the prior year. He gave a different New York address to the arresting officer: 736 West 173rd Street in Manhattan. At arraignment on November 9, 2002, a full order of protection was issued in favor of the mother. Based in part on the father's representations of community ties, he was released on his own recognizance and remains at liberty.

Almost immediately upon release, on November 12, 2002, the father brought a petition for writ of habeas corpus in Bronx County Family Court (Docket No. V-19646-7/02), alleging that the mother removed the children from the Dominican Republic in contravention of the final order of custody issued by the Family Court in Santo Domingo and affirmed on injury appeal. A law guardian was assigned to represent the children, and the matter was made returnable for the following day, November 13, 2002, in the Integrated Domestic Violence (IDV) Court, where the criminal matter was also now pending.

In response to the writ of habeas corpus, the mother appeared in the IDV Court with the children. Given the allegations of domestic violence and the lack of official, translated court documents from the Dominican proceeding, the children were allowed to remain with their mother pending further inquiry. The Dominican court documents were then sent for official translation.

On December 4, 2002, the mother filed a petition for custody with Bronx County Family Court. In that petition she alleged that, after she fled without the children to the United States in December 1999 to escape domestic violence, the petitioner took their children from her mother's home without her permission and obtained a default order of custody from a court in the Dominican Republic. She also filed a family offense petition; alleging again that the father had threatened her life on November 13, 2002 (the day after he filed the writ of habeas corpus) and that he had displayed a gun, threatening to shoot her and the children.

To Be Cont...

Integrated Domestic Violence Court

September 11, 2015,

A Bronx Estate Lawyer said that, the subject children are the parties' twin sons, born June 19, 1997 in the Dominican Republic. It is undisputed that the father obtained a default order of custody there in April 2002, an order appealed by the mother and affirmed by the Dominican court in October 2002, a month after she had brought the boys to the United States. In quick succession, the Integrated Domestic Violence Court which has jurisdiction over both criminal and family law matters received a criminal prosecution against the father based on his alleged November 8, 2002 threats to kill the mother; a writ of habeas corpus filed by the father on November 12, 2002 under article 6 of the Family Court Act seeking enforcement of the Dominican custody order; a injury petition for custody of the two boys filed by the mother on December 4, 2002 under article 6 of the Family Court Act; and a family offense petition filed the same day by the mother under article 8 of the Family Court Act, alleging additional acts of domestic violence.

A Bronx Estate Litigation Lawyer said that, a law guardian assigned on November 12, 2002 to represent the children reported an extensive history of domestic violence. Based upon this information, the court assumed temporary emergency jurisdiction under Domestic Relations Law § 76-c, and directed the Administration for Children's Services to interview both parents and the children. A review of the documents of the Dominican proceedings confirms that the mother and father separated in November 1998. At that time, pursuant to an agreement signed before assistant to the prosecutor the father consented to the terms of an order of protection, agreeing to refrain from assaulting the mother verbally or physically, and to vacate the family home until the mother was able to find other housing. He agreed to pay child support, and was given regular visitations "as long as he behaves appropriately."

The mother left the Dominican Republic in December 1999, leaving the children with her mother, remarrying in June 2000. Just five weeks later on August 2, 2000, while the mother was still in the United States, the father filed a claim for custody of the two children in the "Court of the First Instance for Children and Adolescents of the Distrito Nacional." The maternal grandmother, who had physical custody of the children at the time, was named as defendant in the matter.

In a forensic report submitted to the Dominican District Court on November 10, 2000, the evaluator who had interviewed only the father, as the mother was not in the country concluded that he should have custody as the mother "is both physically and emotionally absent, and that the other family ties, according to the father, are not the most adequate for the children's emotional or intellectual development. In this case, the father figure would be of vital importance, as such, we suggest beginning individual and family therapy to address some of the previously reported accident issues."

On December 1, 2000, in the midst of the Dominican judicial proceeding, the mother temporarily ceded custody of their sons to the father, in a document known as a "friendly agreement," signed before the law guardian. The custody medical dispute thus came to a halt. It is not known why, or under what circumstances, the mother did this. In February 2002, the father reactivated the Dominican custody proceeding. In his request for a hearing he alleged that "the amicable agreement between the parties is not being adhered to." The nature of the violation that prompted the father's action was not specified. By that time, however, the mother apparently lived in the United States and had regular, though intermittent, contact with the boys.

To Be Cont...

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The accident underlying this case occurred on December 21, 2004...cont

September 8, 2015,

The No-Fault Law has a remedial purpose, i.e., to reduce insurance premiums by weeding out frivolous claims and limiting recovery to significant injuries. This law is in derogation of a common-law right of an injured person to bring an action for injuries sustained in an automobile accident caused by the wrongful conduct of another motorist. Being remedial in nature, the No-Fault Law must be accorded a liberal interpretation and the widest application in order to carry out reforms intended. However, that law, being in derogation of common-law rights, also involves the "rule of strict construction," which requires, therefore, an interpretation of the No-Fault law which "makes no further innovation upon common law rights than the particular case requires." Courts are thus confronted with a conundrum caused not only by the above conflicting statutory requirements, but also by what often seems like an impossible task: to discern, on motion, the false and frivolous and to distinguish "minor, mild or slight" injury from appropriate claims. These impairments, though unobservable, can cause genuine quality of life changes in those who really suffer same. These are usually issues which are presented to jurors at trial, who have the benefit of live testimony and can make credibility determinations. The task of deciding these issues on “papers” are, at best, extremely difficult.

There are those who harbor a flawed assumption that judges (on papers), rather than medical scientists and jurors, are more able and equipped to discern and distinguish the false, frivolous and/or insignificant claims of serious injury from those which can cause legitimate, sometimes profound and "more than frivolous" limitations, pain and quality of life impairments. This legislatively imposed task has caused more than a season of judicial discontent and frustration, it has resulted in an extremely difficult and flawed process which results too often in an inconsistent and unfair application of the law.

This court is not sufficiently prescient to determine whether this plaintiff actually, as claimed, has ongoing significant cervical and lumbar pain, limitations and quality of life impairments. Certainly these kinds of injury and limitations can be feigned and/or exaggerated. When genuinely significant, however, cervical and lumbar injuries can be insidious and their syndrome is characterized by periods of remission and exacerbation which is not readily observable by others. Certainly if plaintiff's injuries have continued to effect his relationship with his wife and preclude him from lifting anything heavy, playing soccer or volleyball, and assisting his wife with ordinary chores, such as grocery shopping, then, this court would certainly not conclude that the claim is frivolous or that the injuries are insignificant. But since the court cannot infallibly predict what the plaintiff's future course may be, it must make its decision on this motion based upon the examples and standards (clues) promulgated by appellate authority to assist it in making its determination. This obligation, as discussed above, can be exceedingly difficult and frustrating.
The defendants have provided sufficient proof in admissible form to establish prima facie entitlement to the relief requested.

Similarly, here, although the affirmation of plaintiff's doctor does not provide numerical percentages or degrees of range of motion loss, he does, however, find deficits in the ranges of motion as compared to normal, and his conclusions are supported by the existence of trigger points (a form of spasm) and another objective test (an MRI) that contains numerous positive findings consistent with, and supportive of, plaintiff's ongoing complaints. On this record, giving the plaintiff every fair inference, this court cannot conclude, as a matter of law, that plaintiffs injuries and limitations are "mild, minor or slight."

The accident underlying this case occurred on December 21, 2004...cont

September 3, 2015,

The proponent of a motion for summary judgment must tender sufficient evidence to show the absence of any material issue of fact and the right to judgment as a matter of law. In the present action, the burden rests on defendant to establish, by the submission of evidentiary proof in admissible form, that plaintiff has not suffered a "serious injury." When a defendant's motion is sufficient to raise the issue of whether a "serious injury" has been sustained, the burden shifts, and it is then incumbent upon the plaintiff to produce sufficient prima facie evidence in admissible form to support the claim of "serious injury".

A plaintiff cannot defeat a motion for summary judgment and successfully rebut a prima facie finding that he did not sustain a "serious injury," merely by relying solely on documented subjective complaints of pain, or by the mere submission of an MRI report demonstrating the existence of a bulging or herniated disc, absent medical proof of a significant physical limitation related thereto.

Claims of "serious injury" under the "permanent consequential limitation" category and under the "significant limitation" category are the most difficult for trial and appellate courts to assess. As noted above, these terms are not defined and many times are used interchangeably. In an effort to assist the trial courts, and to better implement the "legislative intent to weed out frivolous claims and limit recovery to significant injuries," the Court of Appeals.

A plaintiff should not rely merely on stale medical reports and current "self serving" sworn statements that his/her limitations are ongoing. Recent cases are now looking to the duration of the limitations and thus require current proof that plaintiff is still impaired by said limitations. Proof of significant limitations which are merely relatively contemporaneous with the accident may not be sufficient to establish a serious injury especially if there is evidence provided by defendant's experts that plaintiff's injuries have resolved and plaintiff has recovered.

To Be Cont...

The accident underlying this case occurred on December 21, 2004

August 29, 2015,

Defendant's counsel usually submits at least two (sometimes three) affirmations of so-called "independent"1 medical experts (an orthopedist, a neurologist, and radiologist, usually from the same stable of defense medical experts), each of whom examine the plaintiff and/or the reports and tests submitted by plaintiff, and then by affirmation refute plaintiff's claim to have sustained a serious injury. These examinations usually take place years after the automobile accident which has been alleged to cause injury, and each of the defendant's medical experts conclude that plaintiff is no longer impaired or injured; that all tests and findings are normal; that if originally injured, said injuries have resolved; and that, in any event, all of plaintiff's claimed limitations or impairments have been caused, not by the accident, but by degenerative (normal aging process) changes in the cervical and lumbar regions. Except for the dates and the unique peripheral circumstances presented by each case, these medical reports and affirmations submitted by defendant's chosen medical experts, are virtually identical. Plaintiff's submissions, made in opposition to a defendant's motion, are no less boilerplate.

The issue in this case is whether plaintiff sustained serious injury.

This case, like all other "serious injury" cases, presents the court with the ongoing and frustrating conundrum of deciding when a plaintiff's injury qualifies as significant within the meaning of the No-Fault Law.

Under the No-Fault Law, in order to maintain an action for personal injury, a plaintiff must establish that a "serious injury" has been sustained. The term "serious injury" is defined in section 5102 of the Insurance Law as follows: "(d) `Serious injury' means a personal injury which results in death; dismemberment; disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment."

To Be cont...

The accident underlying this case occurred on December 21, 2004

August 26, 2015,

A Bronx Estate Litigation Lawyer said that, defendants move for summary judgment pursuant to CPLR 3212 and dismissal of the complaint against them, for the failure of the plaintiff to prove that he has sustained a "serious injury," as that term is defined in section 5102 of the Insurance Law.

The accident underlying this case occurred on December 21, 2004 at approximately 12:45 P.M. at the intersection of E. 188th St. and Cambreleng Avenue in the Bronx, at which time and place the vehicles owned and driven by the plaintiff and defendant collided. The 33-year-old plaintiff, who did not lose consciousness, and was not bleeding, was removed from the scene of the accident by ambulance and taken to St. Barnabas Hospital. At the hospital, he complained of pain in his chest, neck and back, and he stated that, even though he was wearing a seatbelt, his chest hit the steering wheel. X rays were taken of the cervical spine and of the chest, both of which were determined to be negative. Thereafter, he was released the same day.

A Bronx Estate Lawyer said that, on December 30th, nine days post accident; plaintiff came under the care of an internist. The underlying treatment records, and the empirical data contained therein, were provided and reviewed by the defendants' physicians, but were not submitted to the court. All of the information concerning the substance of plaintiff's care and treatment is gleaned from the affirmation of the internist, dated April 21, 2008, which was submitted in opposition to defendants' motion to dismiss. In any event, on plaintiff's first visit to the internist, the plaintiff reported that after the accident he had ringing in his ears and nausea; and he complained of neck pain radiating down to his shoulders with numbness; periods of dizziness when turning his head; shooting pain in his arms when turning his neck, especially on the left side; and lower back pain which gets worse on physical exertion and which spreads to the right buttocks, right thigh and leg, with a tingling sensation. On that occasion the internist conducted a neurological and physical examination which, with the use of a goniometer, included cervical and lumbar range of motion tests and measurements; and he found that plaintiff "suffered from a limited range of motion of the cervical and lumbar spines," and diagnosed the plaintiff with "traumatic nerve root injury, plexopathy due to plexus stretching of compression pain by injured muscles, referred nociceptive pain, myofascial pain syndrome with cervical and lumbar spine trigger points and a lumbosacral sprain." Despite the use of the goniometer, the numerical measurements of the limitations are not set forth anywhere in the plaintiff's submissions. The internist does state in his affirmation, however, that they were "less than the normal range of motion."

Based on all of the above, plaintiff was started on a course of aggressive physical therapy (which continued from December 30, 2004 until May 27, 2005), and he was "sent for MRI and other diagnostic testing," including nerve conduction velocity (EMG/NCV) tests. However, only the results of the MRI, which was conducted on January 17, 2005, are presented to the court on this motion. The MRI testing of plaintiff's lumbar and cervical spine was conducted by a radiologist, who in an affirmation dated April 15, 2008 states that the plaintiff "suffered a posterior disc herniation at L5-S1 into the epidural fat abutting the interior sac margin and anterior disc bulges into the prevertebral soft tissues at L2-3 and L4-5; and posterior disc bulges at C3-4, C4-5 and C5-6 all of which impinge on the thecal sac."

In the MRI report, attached to the affirmation dated January 17, 2005, the following additional relevant findings are set forth: a straightening of the lumbar curvature, and a mild loss in the signal intensity of the L2-3, L4-5, and L5-S1 intervertebral discs "which reflect mild and slight loss in fluid content respectively." On February 8, 2005, after a review of his own records together with the MRI results, the internist concluded that plaintiff's cervical and lumbar injuries "were caused as a result of plaintiff's motor vehicle accident of December 21, 2004"; and "it was determined that the best course of treatment would be continued physical therapy," which, as noted above, lasted until May 16, 2005.

In May of 2005, the physical therapy sessions were discontinued because the plaintiff's "no-fault benefits were terminated" and the internist determined that, in any event, "any further physical therapy would have only been palliative in nature."

The defendants' motions and plaintiffs' responses have become almost assembly line, "cookie cutter" prototypes; and attorneys for defendants (and most plaintiffs) have become expert on how to present or attack a serious injury claim. Defendants are very adept at providing prima facie proof demonstrating that a plaintiff has not suffered a serious injury; proof at the very least sufficient to meet their "initial burden" to present competent evidence that plaintiff has no cause of action. Plaintiffs, too, have become quite conversant with the requirements to defeat a defendant's motion.

To Be Cont...

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Tuckahoe Road in Yonkers...cont

August 24, 2015,

The legal standards to be applied in evaluating a motion to dismiss are well-settled. In determining whether a complaint is sufficient to withstand a motion to dismiss pursuant to CPLR 3211(a)(7), the sole criterion is whether the pleading states a cause of action. If from the four corners of the complaint factual allegations are discerned which, taken together, manifest any cause of action cognizable at law, a motion to dismiss will fail. The court's function is to '"accept each and every allegation forwarded by the plaintiff without expressing any opinion as to the plaintiff's ability ultimately to establish the truth of these averments before the trier of the facts'". The pleading is to be liberally construed and the pleader afforded the benefit of every possible favorable inference.

Where, as here, the plaintiff submits evidentiary material, the Court is required to determine whether the proponent of the pleading has a cause of action, not whether he or she has stated one. Affidavits may be used to preserve in artfully pleaded, but potentially meritorious claims; however, absent conversion of the motion to a motion for summary judgment, affidavits are not to be examined in order to determine whether there is evidentiary support for the pleading. Injury Affidavits may be properly considered where they conclusively establish that the plaintiff has no cause of action.

To succeed on a motion to dismiss pursuant to CPLR 3211(a)(1), the documentary evidence that forms the basis of the defense must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim. To qualify as "documentary", the evidence relied upon must be unambiguous and undeniable, such as judicial records and documents reflecting out-of-court transactions such as mortgages, deeds, and contracts. Letters, affidavits, notes, and deposition transcripts are generally not documentary.

If the documentary evidence disproves an essential allegation of the complaint, dismissal is warranted even if the allegations, standing alone, could withstand a motion to dismiss for failure to state a cause of personal injury action.

The essence of defendant’s argument is that the liens filed by Plaintiffs were a nullity because this was not a public improvement project and the liens filed were not filed in accordance with the private improvement provisions of the Lien Law because, inter alia, they were not timely filed and were not filed with the County Clerk. In opposition, Plaintiffs concede that the liens were not filed in accordance with the Lien Law's requirements concerning private liens but because this was a public improvement project, Plaintiffs only had to comply with the provisions governing public improvement liens.

The provisions of the Lien Law governing the filing of public improvement liens are Sections 5 and 12. Lien Law § 5 ("Liens under contracts for public improvements") provides: A person performing labor for or furnishing materials to a contractor, his or her subcontractor or legal representative, for the construction or demolition of a public improvement pursuant to a contract by such contractor with the state or a public corporation shall have a lien for the principal and interest of the value or agreed price of such labor, including benefits and wage supplements due or payable for the benefit of any person performing labor, or materials upon the moneys of the state or of such corporation applicable to the construction or demolition of such improvement, to the extent of the amount due or to become due on such contract upon filing a notice of lien as prescribed in this article, except as hereinafter in this article provided.

A public corporation is defined under Lien Law § 2(6) as "a municipal corporation or a district corporation or a public benefit corporation and a public improvement is defined under Lien Law §2(7) as "an improvement of any real property belonging to the state or a public corporation

Lien Law § 12 ("Notice of lien on account of public improvements") provides: At any time before the construction or demolition of a public improvement is completed and accepted by the state or by the public corporation, and within thirty days after such completion and acceptance, a person performing work for or furnishing materials to a contractor, his subcontractor, assignee or legal representative, may file a notice of lien with the head of the department or bureau having charge of such construction or demolition and with the comptroller of the state or with the financial officer of the public corporation, or other officer or person charged with the custody and disbursements of the state or corporate funds applicable to the contract under which the claim is made. The notice shall state the name and residence of the lienor, the name of the contractor or subcontractor for whom the labor was performed or materials furnished, the amount claimed to be due or to become due, the date when due, a description of the public improvement upon which the labor was performed and materials expended, the kind of labor performed and materials furnished, and materials actually manufactured for but not delivered to such public improvement, and give a general description of the contract pursuant to which such public improvement was constructed or demolished. If the lienor is a partnership or a corporation, the notice shall state the business address of such partnership or a corporation, its principal place of business within the state. If the name of the contractor or subcontractor is not known to the lienor, it may be so stated in the notice, and a failure to state correctly the name of the contractor or subcontractor shall not affect the validity of the lien. The notice must be verified by the lienor or his agent, to the effect that the statements therein contained are true to 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.

In accordance with Lien Law § 5 "in order that one furnishing labor or materials upon public work shall have a valid lien therefor, the labor and materials must have been furnished pursuant to a contract 'with the state or a municipal corporation'". Here, giving Plaintiffs' Amended Complaint the liberal reading to which it is entitled in the context of a motion to dismiss, the predicate for Plaintiffs' claims is that their liens are public improvement liens. The Court has no difficulty in concluding that defendant is not the state and is not a public corporation. However, the matter does not end there.

Certainly, if accident defendant did not contract with either the state or a public corporation to perform the work in question, the liens could not have been filed in accordance with the public improvement lien provisions and no private lien may be placed on a public road. As explained by the Appellate Division, First Department, "City-owned properties are inalienable under City Charter § 383 an entity desiring to secure an interest thereupon must file a 'public improvement lien' not a 'mechanic's lien,' which EMC filed here. A public improvement lien does not attach to the City's property; instead it secures a creditor's interest 'upon the moneys of the state or of such public corporation applicable to the construction or demolition of such improvements"'.

This being said, the Court concludes that lien, even if assumed to have validly attached as a public improvement lien, is nevertheless invalid for a different reason. The governing statute permits the assertion of a lien on account of public improvements by a person "performing work or furnishing materials". This terminology refers to the performance of physical work or labor and the furnishing of physical materials. The provision of a surety bond is not directly connected to the improvement itself and a surety has ample other means at hand, before issuing a bond, to protect itself from the risk that its insured will fail to pay a premium.

Accordingly, the court held that the motion of defendant to dismiss the Amended Complaint of Plaintiffs is granted in part and denied in part; and it is further ordered that all causes of action are dismissed to the extent asserted on behalf of Plaintiff.

Tuckahoe Road in Yonkers

August 21, 2015,

A Bronx Estate Litigation Lawyer said that, this action was initiated with Plaintiffs' filing of their Summons and Complaint in this Court's e-filing system ("NYSCEF") on April 27, 2012. According to Plaintiffs, the dispute arising out of non-payment for Plaintiffs' performance of asphalt, paving and bonding services on behalf of a general contractor in connection with its contract with defendant to make improvements to certain public streets - Tuckahoe Road in Yonkers and 108th and 188th Streets in the Bronx. It is Plaintiffs' contention that defendant wrongfully paid the general contractor monies that were the subject of mechanic's liens filed by Plaintiffs concerning the injury services they provided on these projects.

A Bronx Estate Lawyer said that, defendants moved to dismiss the Complaint and the Court held a conference on June 28, 2012 to determine whether discovery would proceed pending the motion to dismiss or if it would be stayed. At the conclusion of the conference, the Court advised that discovery would be stayed pending the motion to dismiss and then set the motion schedule. On July 30, 2012, Plaintiffs filed an amended complaint and Defendants withdrew the prior motion and replaced it with the present one.

Based on the allegations of the Amended Complaint, which the Court must deem as true for purposes of this motion, Plaintiff is a general contractor specializing in asphalt paving, concrete and commercial construction that subcontracted with the general contractor on July 20, 2010 to work on certain aspects of a Con Ed project located at Tuckahoe Road, Yonkers, New York. Plaintiffs contend that the general contractor failed to pay Plaintiffs causing Plaintiffs to file mechanic's liens pursuant to New York's Lien Law ("Lien Law") § 12, which permits for the filing of a lien up to 30 days after the completion and injury acceptance of a public improvement project. It is Plaintiffs' position that the time for the filing of these liens has not run because the projects are not yet completed.

Plaintiff was a subcontractor to the general contractor providing paving services in connection with the defendant’s project. It is alleged that on October 14, 2011, plaintiff served upon defendant "a Mechanic's Lien for Public Improvement for the supply of materials and labor to the general contractor in the amount of $55,750.40". Plaintiffs allege that this lien remains unpaid. Plaintiffs contend that the "amounts owed to Plaintiffs are trust assets subject to the rights of trust beneficiaries under New York Lien Law, Art. 3-A".

Plaintiffs allege that defendant "has an internal risk management department to review the validity, financial wherewithal and sufficiency of any insurance company issuing bonds seeking to discharge a mechanic's lien on a project" yet "neglected to follow its internal procedures to ascertain the validity and sufficiency of the bonds presented to it by the general contractor. Within three weeks of procuring the fraudulent bonds and obtaining the retained funds from defendant filed for Chapter 11 Bankruptcy protection.

Plaintiffs' First Cause of Action is for breach of fiduciary duty. It alleges that defendant’s contract with the general contractor allowed it to pay subcontractors and vendors directly and defendant’s internal policy is to withhold funds when a injury claim for payment is made by a subcontractor or vendor to defendant. Plaintiffs contend that they "relied on defendant’s withholding of payments to the general contractor and negotiated with defendant for release of funds directly to them for payment". The fiduciary relationship is established, say Plaintiffs, as a result of defendant’s "actions and standard procedures" and its "failure to protect the claims of Plaintiff was a breach of said fiduciary duty and caused Plaintiffs to lose the retained funds".

To Be Cont...

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Realty is the management company of the premises...cont

August 19, 2015,

For the Supreme Court of the State of New York, the prescribed venue of an action is codified at and statutorily authorized by Article 5 of the CPLR. The statutory scheme provides that "notwithstanding the provisions of this article, the place of trial of an action shall be in the county designated by the plaintiff, unless the place of trial is changed to another county by order of the court upon motion or by consent" (CPLR §509). As such, unless the parties have by prior written agreement fixed the venue of an action, CPLR Article 5 permits the plaintiff the right to make the initial selection of an appropriate venue.

Pursuant to CPLR §503(a), venue is predicated upon the residence of one of the parties at the time the action is commenced, not where the cause of action arose. However, CPLR §510(1) provides that the "court, upon motion, may change the place of trial of an action where: the county designated for that purpose is not a proper county." And, it is settled that upon a motion by defendants to change said venue, defendants bear the burden to establish that the plaintiff’’s choice of forum is not appropriate, or that other factors and circumstances require that venue be changed. In addition, it is settled that "unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed".

Here, defendants fail to demonstrate that plaintiffs move to Pennsylvania shortly after commencing the instant action evidences a lack of intent to retain New York County as a permanent residence sufficient to defeat New York County as a basis for venue.

First Department case law, which is controlling over this Court, makes clear that for the purpose of deciding whether the placement of venue is proper "the controlling date is the date of commencement of the action". The First Department also makes clear that in the absence of evidence that a plaintiff's residency was "contrived for the sole purpose of obtaining an advantageous venue," it is proper to conclude that the plaintiff was a bona fide resident of the county wherein he or she resided at the time the action was commenced.

Further, the First Department points out that "a subsequent change of residence to another county does not invalidate the original designation based upon plaintiffs residence at the time of the commencement of the injury action". In reversing the trial court, the First Department held, inter alia, that "a subsequent change of residence to another county does not invalidate the original designation based upon plaintiffs' residence at the time of the commencement of the action".

The case law defendants cite is distinguishable. In the 1978 case, the defendant appealed an order denying his motion to change the venue of the action from Kings County to Westchester County. The plaintiff had maintained a home in Westchester County for 20 years, his two children attended public school in Scarsdale, he was a registered voter in Scarsdale, and he filed income tax returns as a resident of Scarsdale, He also claimed "exclusive use" of a bedroom in his sister's and brother-in-law's home in Kings County. In reversing the trial court and determining that the Kings County venue did not constitute a residence, the Second Department held that the plaintiff's "occasional use of the bedroom in his sister and brother-in-law's home does not support his contention that he has a second residence in Brooklyn". The Second Department went on to explain: Although a person may have more than one residence for venue purposes, to consider a place as such, he must stay there for some time and have the bona fide intent to retain the place as a residence for some length of time and with some degree of permanency. Residence requires more stability than a brief sojourn for business, social or recreational activities. The mere fact that plaintiff uses the Brooklyn home of his sister and brother-in-law as a stopover for convenience and to sleep there when in the area on business, does not establish a residence.

The other cases defendants cite also are unavailing. In the 1996, the plaintiff filed an action basing venue on her "residence" in Bronx County, a mere three months after moving to Bronx County from Westchester County. However, one week after the plaintiff moved to the Bronx, she registered her car in Westchester County, and "in her affidavit, the plaintiff acknowledged that she and her family were now residing in Putnam County". After examining plaintiffs affidavit, the Second Department determined that "the move was not made with `the bona fide intent to retain the place in Bronx County as a residence for some length of time and with some degree of permanency'". In the 1989 case decision, the First Department held that the trial court "did not abuse its discretion in granting the injury motion for a change of venue given its finding that plaintiffs' occupancy of a relative's home in the Bronx while their Westchester home was being renovated indicated a lack of intent to remain in the Bronx." In the 2009, the evidence "revealed that on or about December 31, 2005, which was just over one year after the subject accident, the plaintiff moved to her son's apartment in Brooklyn from her house in Staten Island after a `diabetic episode,' that in March or April 2006, she entered into a contract to purchase a house in New Jersey, that on August 8, 2006, three days after commencing this action, she `took over' her new house in New Jersey, and moved into it in November 2006." The Second Department determined that the plaintiff was temporarily staying in a Brooklyn apartment without "the bona fide intent to retain the place as a residence for some length of time and with some degree of permanency" when she commenced her action. Therefore, the motion to change venue from Kings County to Richmond County, where the defendants resided, should have been granted, the Court held.

Here, unlike the plaintiffs in the cases above, plaintiff had not recently moved to New York County when she filed the instant action. Instead, she had lived at the premises for two years prior. Therefore, none of these cases is on point. As it is clear from the evidence in the record that plaintiff was a resident of New York County at the time she commenced the instant action, and that her residence in New York County was not contrived to obtain an advantageous venue, defendants' motion is denied.

Based on the foregoing, the court held that the motion of defendants for an order, pursuant to CPLR §511, to change the venue of this action brought by plaintiff is denied; and it is further ordered that counsel for plaintiff and counsel for defendants appear for a Preliminary Conference before the Justice 60 Center Street, Part 35, Rm. 438 on Tuesday, March 30, 2010 at 2:15 p.m.; and it is further ordered that defendants serve a copy of this order with notice of entry upon all parties within 20 days of entry.

Realty is the management company of the premises

August 17, 2015,

In this personal injury action brought by plaintiff defendants move for an order, pursuant to CPLR §511, to change venue to Westchester County. A Bronx Estate Lawyer said that, plaintiff commenced this action through the service of a Summons and Complaint on September 30, 2009. Her Summons lists the basis of venue as her residence, 214 East 83rd Street, Apt. 5A, New York, New York 10028. In her Complaint, plaintiff alleges that defendant is the owner of 214 East 83rd Street, New York, New York (the "premises"), and Realty is the management company of the premises. Plaintiff further alleges that on or about July 2, 2009, as a result of defendants' negligence, she fell down an interior staircase of the premises, and suffered serious injuries.

A Bronx Probate Lawyer said that, defendants contend that, pursuant to CPLR §503(a), venue is based on the parties' residence at the time of commencement of the action. For corporations such as Realty, residency is determined by the county where its principal place of business is listed on its certificate of incorporation. As defendant resides at 10 Forthill Lane, Scarsdale, New York, New York, 10583, and Realty is a domestic limited liability company incorporated in Westchester County, with its principal office in Westchester County, defendants' residency is Westchester County.

Citing injury case law, defendants further contend that a defendant is entitled to a change of venue from the venue chosen by plaintiff, if, shortly after an action is commenced, the plaintiff moves from the residence that served as the basis for venue at the time of commencement. Such an act evidences a plaintiff’s lack of intent to retain the residence as a permanent residence. Citing the affidavit of defendant, defendants argue that plaintiffs lease regarding the premises was terminated in October 2009, and plaintiff moved out of said premises on October 31, 2009, and now lives in Pennsylvania. Therefore, plaintiffs address at the time the instant matter was commenced cannot be deemed plaintiffs residence, because she did not possess the requisite intent to retain the residence for some length of time and with some degree of permanency. Given that plaintiff is now a Pennsylvania domiciliary with no residency in any county within New York State, the only proper county for venue is Westchester County, defendants argue.

In opposition, plaintiff distinguishes the case law on which defendants rely, on the ground that in those cases, it was clear that the plaintiff was never a bona fide resident of the county wherein the action initially was venued. The courts rejected such attempts to manufacture or manipulate venue by temporarily relocating to the chosen venue. In contrast, plaintiff was a longstanding resident and domiciliary of New York County, where she lived, worked, received her paychecks, and filed her income tax returns. Plaintiff did not temporarily move or relocate to New York County for the specific purpose of establishing venue therein, nor did she utilize the home of a family member or office as a temporary stopover for the purpose of creating a sham venue. The mere fact that plaintiff relocated outside of New York County after commencing this action is irrelevant for venue purposes, plaintiff argues.

Plaintiff further contends that venue is preferred in the county where the cause of action arose. Plaintiff’s accident occurred in New York County, and the accident situs is within the management and/or ownership of defendants. Thus, New York County is the proper venue. In reply, defendants point out that they are not contending that plaintiffs New York County residency was a sham. Instead, they are arguing that, based on recent case law, New York County is an improper venue.

Further, defendants distinguish the case law plaintiff cites, and contests plaintiffs argument that venue is preferred in the county wherein the cause of action arose. While the importance of the situs of an accident for venue purposes is relevant in regards to the convenience of witnesses, defendants are not seeking a change of venue based upon the convenience of witnesses, but instead upon the contention that Westchester County is the only proper venue in this matter. As such, plaintiff’s argument regarding the situs of the accident is irrelevant for the purpose of defeating defendants' motion.

The issue in this case is whether the motion to change the venue should be granted.

To Be Cont...

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