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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

by Stephen Bilkis

With respect to plaintiff’s 90/180 claim, defendants rely on the testimony of the plaintiff which indicates there was virtually no diminution in the plaintiff’s ability to work. Plaintiff returned to work nineteen days after the accident with no change in her job duties.

The burden now shifts to the plaintiff to come forward with evidence to overcome the defendants’ submissions by demonstrating the existence of a triable issue of fact that serious injury was sustained. In opposition to defendants’ motion, plaintiff contends that defendants have not meet their burden of proof in establishing that plaintiff’s injuries do not meet the definition of any of the nine categories defined as serious in the insurance law. Plaintiff argues that defendants’ independent medical expert, failed to perform a complete set of range of motion testing in all plains of motion on plaintiff’s injured area, specifically that the doctor did not conduct any range of motion testing in the areas of either left or right lumbar rotation and therefore his opinion that plaintiff has a normal range of motion is suspect.

The Court notes that plaintiff denied any history of a prior car accident or injury during her examination with the doctor as she had also done during her examination with Dr. Miller. The Court also notes that his diagnosis was “Cervical Spine sprain/strain-resolved. Thoracic spine sprain/strain-resolved. Lumbar spine sprain/strain-resolved. There is no evidence of a neurological disability as it relates to the accident of record.” Finally, plaintiff argued that “due to the defendants’ failure to meet their required burden of proof, the plaintiff need not submit any evidence in opposition.”

Published on: December 16, 2014

New York Appellate Court Discusses Pain and Suffering Damage Award in Medical Malpractice Case

by Stephen Bilkis

CPLR 1601(1) does not address situations, such as here, where the alleged non-party tortfeasor is the State of New York which cannot be joined as a co-defendant in the Supreme Court. The prevailing view, however, is that apportionment against a state joint tortfeasor, subject to suit in the Court of Claims, is appropriate in a Supreme Court action.

In addition, CPLR 1601 (1) permits a state defendant, in the Court of Claims, the benefit of Article 16 apportionment against a non-state, joint tortfeasor by exempting the State from the rule which excludes a non-party’s share when jurisdiction cannot be obtained over that non-party. In this case, the plaintiff has sued Downstate Hospital in the Court of Claims and the hospital in that action has raised as an affirmative defense the protection of CPLR, Articles 15 and 16. Thus, the state hospital may well seek apportionment against Dr. BK in the pending Court of Claims action.

It is noted that when two tort-feasors neither act in concert nor contribute concurrently to the same wrong, they are not joint tort-feasors; rather, their wrongs are independent and successive. Although the original wrongdoer is liable for all the proximate results of his or her own tortious act, including aggravation of injury by a successive tortfeasor, the successive tort-feasor is liable only for the aggravation caused by his own conduct. However, in order for a defendant to be considered an independent and successive tortfeasor and therefore liable only for such aggravated or additional injury caused by it there must be demonstrated two separate injuries, with the second injury not necessarily resulting from the first, and further, there must be demonstrated the capability of delimiting the injures caused by the successive tort-feasor.

Published on: December 11, 2014

Plaintiff Seeks Wrongful Death Claim Pursuant to the Jones Act Against City of NY

by Stephen Bilkis

A Bronx Probate Lawyer said that, this is a suit by an administratrix to recover damages for the death of her former husband, a deckhand on a tugboat. The suit is against the owner of the tug, Bronx Towing Co., under the Jones Act, 46 U.S.C.A. § 688 and against the City of New York under the New York Death Statute, Decedent Estate Law, § 130 et seq. During the litigation the action against the tug was settled with the approval of the Surrogate. But in view of cross claims between tugboat and city, the nature of the tug’s liability is open.

A Bronx Estate Lawyer said that, Bronx Towing, under a contract with the city was engaged in towing scows for the Department of Sanitation; loaded or unloaded, from one point to another in the harbor. At the time of the mishap it had towed two scows abreast of each other from Flushing to a dock at East 91st Street. There were no scow men on board the scows. The handling of tug and tow and its tying up at 91st Street was entirely in the hands of the tugboat captain and the deckhand; there were no others on deck. On the arrival of the tow at 91st Street plaintiff tied up the onshore scow to the dock; no city employee was there to do this, although there should have been. Shortly thereafter when he was on the offshore scow the tugboat captain noticed that the tow was drifting. He called this to his attention and he tried to reach the inshore tow. He attempted to span the space between the two scows, jumped across, landed on the second scow, slipped on debris on the deck and fell into the water. He was crushed between the two scows and his death followed several hours later.

The contract between Bronx and the city called upon the city to supply a scow man for each scow to accompany the scow from place to place, assisting in its navigation, in the handling of lines. If there had been a scow man on each of the scows, a scow man would have tied up the tow to the dock. One or the other would have looked to see whether the lines were properly secured; he would not have been called upon to do this work.

Published on: November 22, 2014

NY Appellate Court Denies Change of Venue Motion

by Stephen Bilkis

Plaintiff goes on to explain that she relocated to the Philadelphia area after September 30th because I obtained a job more suited to my financial and professional needs in the Philadelphia area.

The injury case law defendants cite is distinguishable. In Katz v Siroty, 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.

Here, however, plaintiffs stay in New York County was neither brief nor occasional, and cannot be considered a mere stopover.

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

Plaintiff Files Motion for Summary Judgement in Car Accident Case

by Stephen Bilkis

On October 31, 1958, a little girl was waiting in a mobile x-ray truck to be x-rayed. She was unaware that just behind the truck, a panel van was attempting to pull away from the curb. The panel van’s rear bumper became interlocked with the bumper of the car that was parked behind him. As the driver pulled around the x-ray van which was also parked against the curb, it pulled the car that was hung onto the bumper forward. The car was forced into the back of the x-ray van. The car accident caused the child to become injured. Her guardian filed a lawsuit against the driver of the van and the company that he worked for.

The driver of the panel van died of natural causes before the case came to court. The company that employed him and owned the panel van that he had been driving on that date admit that the van was there. They admit that the accident was reported to them. They do not know the specifics of the accident because the driver is no longer available to testify. The company asked the court permission to not be held to as high a standard of proof for their 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. A Nassau County Personal Injury Lawyer said the court also contends that the company is in fact in possession of an affidavit made by the driver and a copy of the accident report.

The company states that it is their understanding that the vehicle that became hung up on the panel truck was parked illegally. They maintain that there was no contact between their truck and the x-ray truck. They feel that they should not be blamed for the accident. They contend that the driver of the vehicle that was illegally parked and thus was the proximate cause of the accident.

Published on: August 7, 2012

Plaintiff Claims She was Defrauded in Real Estate Transaction, NY Appellate Court Disagrees

by Stephen Bilkis

The plaintiff in the case is Willie B. Sosa. The defendants in the case are Lorenzo Hines, Eddie Meyers, Harold Hall, and the Estate of Dessie Ree Meyers. The judge in the case is Arthur M. Schack.

About the Case

This is a case that involves a real estate dispute. The real estate in question is the property located at 363 Monroe Street, in Brooklyn, New York. A New York Injury Lawyer said the plaintiff moves to show cause for three branches of relief in the case. The first branch of relief is to stay the thirty-day notice of termination which is dated the 27th of April, 2006. The plaintiff states that this notice violates the notice requirements for ending a tenancy.