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Published on: August 19, 2015

New York Appellate Court Rules that Date of Filing Controls Change of Venue Argument

by Stephen Bilkis

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.

Published on: February 4, 2015

NY Court Rules Plaintiff’s Claim is Dismissed Pursuant to CPLR §§ 321 land 3212 and Article 51 – Branch v. Metro. Suburban Bus Auth., 2010 NY Slip Op 33281 (N.Y. Sup. Ct., 2010)

by Stephen Bilkis

In this personal injury case, the defendant disputes that the plaintiff suffered a “serious injury” as defined by § 5102(d) of New York Insurance law. Under New York law, in order for a plaintiff to be able to recover damages based on the negligence of another person or entity, the plaintiff must have suffered an injury that is serious. A serious injury is one that results in significant disfigurement; permanent loss of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; a significant limitation of use of a body function or system; or a medically determined injury that prevents the injured person from performing substantially all of the material acts that the person usually performs.

On March 5, 2008, at approximately 5:00 a.m., the plaintiff was riding a bus owned and operated by defendant Metropolitan Suburban Bus Co. According to the plaintiff, the bus driver stopped short, causing her to slip and fall on the wet floor of the bus. Plaintiff claims that as a result of the fall, she seriously injured her lower back, right knee, and right ankle. About 8 months later, the plaintiff filed a lawsuit against the defendant. The defendant filed a motion for summary judgment dismissal of the claim.

Because the defendant filed the motion for summary judgement, it has the burden of showing that there are not material issues of fact and that as a matter of law, it is entitled to win the case. In this case, the defendant must show that the plaintiff did not sustain a “serious injury.” If the defendant meets its burden, then the burden shifts to the plaintiff to raise an issue of fact as to the existence of a “serious injury.” The court will view evidence in a light most favorable to the non-moving party, which in this case is the plaintiff.

Published on: December 16, 2014

Defendant in a medical malpractice action requests a reduction in the amount of damages awarded by the jury- Thomas v. Burack, 2009 NY Slip Op 32647(U) (N.Y. Sup. Ct. 10/21/2009)

by Stephen Bilkis

In this medical malpractice case the defendants requested that the court reduce the amount of damages for pain and suffering, loss of services, as well as the amount of damages awarded for pecuniary loss.

In April of 2003 decedent Thomas was admitted to Downstate Hospital for single bypass heart surgery and a mitral valve repair. However, instead, defendant doctor Burack performed three open heart surgical procedures on the decedent. According to the plaintiff, because of negligent monitoring and treatment of the complications related to the procedures, in September Thomas died in Downstate Hospital without ever leaving the hospital. Plaintiff, as the administratrix of the decedent’s estate, filed a medical malpractice lawsuit against defendant Burack. After a trial, the jury found in favor of the plaintiff, awarding $6 million for the decedent’s conscious pain and suffering, $13 million for the loss of the decedent’s services and society prior to his death, and $780,000 in pecuniary damages on the wrongful death claim.

Defendant Burack appealed. In addition to arguing that he was not liable for the decedent’s death, he also appeals the amount of the monetary judgements. He asserts that the $6 million for pain and suffering and the $13 million for loss of services are not reasonable. He further asserts that the $780,000 award for wrongful death was not proven.

Published on: December 11, 2014

Plaintiff seeks wrongful death claim pursuant to the Jones Act Against City of New York – Duffy v. City of New York, 184 N.Y.S.2d 1006 (N.Y. Sup. Ct., 1958)

by Stephen Bilkis

In this wrongful death claim, the issue is whether the decedent’s own negligence contributed to his death. The plaintiff is the widow of the decedent. The decent worked for Bronx Towing Co. as a deckhand. Bronx Towing had a contract with the City of New York pursuant to which Bronx Towing towed scows for the Department of Sanitation. The accident that resulted in the death of the plaintiff’s husband occurred when defendant Bronx Towing towed two scows from Flushing to a dock at East 91st Street. Upon arrival at the 91st Street dock, there was no city employee there to tie the scows to the dock, so Duffy did so. However, soon after the tugboat captain noticed that one of the scows that was supposed to be tied was drifting. Duffy attempted to jump about 4 feet to the second scow. When he landed on the scow, he slipped on debris that was on the deck and fell in the water. Duffy was crushed in between the two scows. He later died.

Plaintiff filed a claim against the City of New York and Bronx Towing. According to the contract between the City of New York and Bronx Towing, the City was required to supply scowmen to accompany each scow from place to place and who would be responsible for tying the scows. Plaintiff argued that had scowmen been present, then a scowman would have tied the scow, and the accident that resulted in her husband’s death would not have occurred. Specifically, the plaintiff claims that Bronx Towing was negligent for failing to provide the decedent with a safe place to work and for taking the scows in tows without scowmen. She claims that the City of New York was negligent for permitting the scows to leave without scowmen and for loading garbage in such a way that the deck became slippery.

Even though the defendants attempted to point the finger at each other, the court concluded that clearly fault lies with both parties. Bronx Towing failed to provide Duffy with a safe workplace, and the City of New York was supposed to supply scowmen. Failure to do so put Duffy in danger as he had to do work that the scowmen were supposed to do.

Published on: November 22, 2014

In a premises liability case, the court denies defendant’s motion to change venue – Coughlin v. Sarraf, 2010 NY Slip Op 30332(U) (N.Y. Sup. Ct. 2/17/2010)

by Stephen Bilkis

In this slip and fall case, the defendant moves to change venue based on the situs of his business and the fact that the plaintiff moved from the location where the accident occurred to another state.

Plaintiff Coughlin resided in an apartment building owned by 214 Street Realty Company. Defendant Sarraf is the owner of the company. The plaintiff asserts that she was seriously injured when due to the defendant’s negligence, fell down a staircase in the building which is located at 83 E 214th Street, New York, New York. The plaintiff filed a personal injury claim against Sarraf. Defendant moved for a change of venue to Westchester County, the county in which 214 Street Realty Company has its principal place of business.

Under CPLR §503(a), for personal injury claims that are commenced in New York Supreme Court, the proper venue is the county in which one of the parties resided when the action was commenced. If one of the parties is a corporation, according to CPLR §503(c) the corporation is deemed to be a resident of the county in which its principal office is located.

Published on: November 22, 2014

New York Appellate Court Hears Arguments for Change of Venue in Personal Injury Case

by Stephen Bilkis

The facts in Blake v Massachusetts Mut. Life Ins. Co., are similar to those herein. In Blake, the plaintiffs took title to a house in Westchester County on July 20, 1999, while still residing in Bronx County. Then, on August 11, 1999, the plaintiffs commenced an action, basing venue on Bronx County, where they had lived for years. In affirming the Supreme Court’s denial to change venue to Westchester County, the First Department stated: There is no dispute that plaintiffs continued to live only in the Bronx apartment while their new house was being painted, repaired and furnished, and did not move until the end of August. The First Department went on to reject defendants’ argument that because plaintiffs did not intend to remain in the Bronx apartment for some length of time or with some degree of permanency at the time of the commencement of the action, Bronx County is not a proper venue. The Court held: Absent evidence that plaintiffs continued to live in the Bronx apartment until after the commencement of the action for the sole purpose of obtaining an advantageous venue, no basis exists to disturb the motion court’s finding, made after a hearing, that plaintiffs were bona fide Bronx County residents at the commencement of the injury action.

Further, the First Department points out that a subsequent change of residence to another county does not invalidate the original designation based upon plaintiff’s residence at the time of the commencement of the action. In Iassinski, the plaintiffs commenced a personal injury action on or about November 9, 1992, electing New York County as the venue based on their alleged residence there. Plaintiffs had moved by the time they served their Bill of Particulars on March 22, 1993, four months later. After the defendants’ moved to change venue to Queens County, the plaintiffs confirmed that their residence had since changed to Queens, but averred that at the time of the commencement of the action they resided in New York County. 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.

In Cardona, the plaintiffs commenced a personal injury action on May 2, 1988, designating Bronx County as the place of venue based upon their residence. In its motion to change venue, the defendant argued that because plaintiffs no longer live in Bronx County and, since that county therefore no longer has any nexus with the action, venue should be in New York County. The First Department rejected such reasoning, holding that a plaintiff who has designated a county of appropriate venue is under no obligation to make any showing that the county designated is in any way preferable to the one to which the change is sought unless and until the party seeking the change has made an adequate showing as to the convenience of material witnesses and the furtherance of justice.

Published on: November 20, 2014

Plaintiffs Move for an Order Pursuant to CPLR 511 to Change Venue

by Stephen Bilkis

In this personal injury action brought by plaintiff JC, defendants Mr. HS and LLC Realty move for an order, pursuant to CPLR §511, to change venue to Westchester County.

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 Mr. HS 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 injury .

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 Mr. Mr. HS 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.

Published on: November 17, 2014

New York Appellate Court Discusses GBL §§ 349, 350 and 350, Grants Plaintiff’s Motion to Amend Complaint

by Stephen Bilkis

Defendants argue that Plaintiff fails to allege that Defendants’ conduct was consumer-oriented. Defendants urge that the term consumer-oriented refers only to those who purchase goods and services for personal, family or household use. Injury Disputes that are unique to the parties do not fall within GBL § 349.

However, the focus of GBL § 349 on consumer orientation does not preclude its application to disputes between businesses per se, but it does severely limit it. Although the statute is, at its core, a consumer protection device, corporate competitors now have standing to bring a claim under this statute so long as some harm to the public at large is at issue.

Here, Defendants fail to demonstrate that from the allegations in the proposed amended complaint, it cannot be inferred that Defendants’ practice has a broader impact on the consumer at large.

Published on: August 18, 2012

Defendant cannot escape summary judgement because of the death of a co-defendant – McCarthy by Bow v. Schor & Rosner, 196 N.Y.S.2d 139 (N.Y. Sup. Ct., 1959)

by Stephen Bilkis

The issue in this case is whether a defendant in a truck accident personal injury case can escape summary judgement after the death of the co-defendant whose actions were the direct cause of the plaintiff’s injuries.

Defendant Stern was an employee of defendant Schor & Rosner. On October 31, 1958, Stern was driving a truck owned by Schor & Rosner when he backed into another vehicle, causing that vehicle to collide with the vehicle occupied by plaintiff McCarthy. As a result, plaintiff McCarthy was injured. McCarthy filed a personal injury lawsuit against Schnor & Rosner, and now moves for summary judgement. The court will grant the motion for summary judgment if the plaintiff can show that there is no genuine dispute as to any material fact, and that he is entitled to judgment as a matter of law.

Defendant Stern, the driver of the truck, died before he was served with the summons and complaint. Defendant Schor & Rosner does not deny the allegations in the complaint that Stern was driving the truck that day. However, Schor & Rosner denies knowing any of the specifics of the accident because the driver is no longer available to testify. Schor & Rosner asked the court permission to not be held to as high a standard of proof for this case because they are unable to know the details that led up to the accident. The court points out that following the accident, the company asked for and obtained a statement from the now deceased driver in reference to the circumstances surrounding the accident. In addition, the court contends that the Schor & Rosner is in fact in possession of an affidavit made by the driver and a copy of the accident report. Thus, the defendant does know the details that led up to the accident.

Published on: August 7, 2012

Plaintiff claims she was defrauded in real estate transaction, Appellate Court disagrees. Sosa v. Meyers, 2006 NY Slip Op 52205(U) (N.Y. Sup. Ct. 11/22/2006)

by Stephen Bilkis

In a dispute over real estate, in this case the court must determine the legal owner of the real estate and the validity of a 30-day notice to terminate a lease agreement.

The real estate is located at 363 Monroe Street, in Brooklyn, New York. The plaintiff moves to show cause for three branches of relief in the case. First, the plaintiff requests a stay on the thirty-day notice of termination. Next, the plaintiff requests a declaratory judgment that the notice of termination is a nullity as there is no lease agreement or tenant/landlord relationship between the two parties and the plaintiff is the rightful owner of the property. Third, the plaintiff requests a restraining order for all actions and proceedings on behalf of the defendants related to the collection of rent and the transfer of the property.

Plaintiff’s argument