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NY Appellate Court Grants Plaintiff a Motion for Reargument

According to a Bronx County Personal Injury Attorney, the Supreme Court of Bronx County, entered November 10, 1992, an Order which granted plaintiff’s motion for reargument, and upon reargument, denied defendants’ motion to change venue from Bronx County to Queens County, unanimously reversed, on the law and on the facts and in the exercise of discretion, and the motion is granted, with costs.

A Bronx County Personal Injury Lawyer narrates, Plaintiff, a Queens County resident, was a patron at ABCD’s Bar in Queens County when she fell down an interior stairway, rendering her a paraplegic. Plaintiff commenced this personal injury action in Bronx County based solely on the fact that defendant Mr. MC, the carpenter who constructed the stairway, is a resident of Bronx County. It is uncontested that venue in Bronx County was properly premised on Mr. MC’s residence under CPLR 503(a).

However, the owners of the premises, defendants Mr. and Mrs. C, Queens County residents, moved for a change of venue to Queens County pursuant to CPLR 510(3). Although the motion to change venue was originally granted by order dated June 14, 1991, in light of our decision in Cardona v. Aggressive Heating, (180 A.D.2d 572), the motion court recalled its prior decision on the ground that defendants’ proof failed to satisfy the test set forth in Cardona (supra ).

According to a Bronx County Personal Injury Attorney, in Cardona (supra, at 572, 580 N.Y.S.2d 285), the court held that to show that the convenience of material witnesses would be better served by a change of venue, this showing must include (1) the identity of the proposed witnesses, (2) the manner in which they will be inconvenienced by a trial in the county in which the action was commenced, (3) that the witnesses have been contacted and are available and willing to testify for the movant, (4) the nature of the anticipated testimony, and (5) the manner in which the anticipated testimony is material to the issues raised in the case.

According to a Bronx Personal Injury Lawyer, the case at bar, where the balance of factors weighs heavily in favor of placing venue in Queens County, the court inappropriately adhered to form over substance in finding that defendants’ proof was technically insufficient under Cardona. The cause of action arose in Queens County. Defendants’ affidavit in support of the motion identifies three non-party witnesses, who were present in ABCD’s Bar at the time of the accident, each a resident of Queens County, who will testify to the condition of the premises and their observations of plaintiff.

As explained by a Bronx County Injury Lawyer, the moving papers contain a sworn averment that the three eyewitnesses would be inconvenienced by having to testify in Bronx County. From the time of the accident, plaintiff has received medical treatment within Queens County and she is currently a resident of the Flushing Manor Care Center in Queens County. With the exception of Mr. MC, all of the original defendants are residents of Queens County. The only other nexus to Bronx County is that defendant/third-party defendant, Mr. GT, the architect of the stairway, resides in Bronx County. As was the case in Soufan v. Argo Pneumatic Co., (170 A.D.2d 289), here, changing venue to Queens County, where the accident occurred, will be more convenient for material witnesses and will promote the ends of justice (CPLR 510[3].

Jurisdiction of courts to try, hear and decide cases are conferred by law and it is one of the important matters that a lawyer must know within his fingertips in order to effectively file cases. Venue is another thing, and serves to provide convenience on the parties to a case.

The Bronx County Injury Attorneys and Bronx County Personal Injury Lawyers of Stephen Bilkis & Associates are very much aware of it and we make sure that cases we handle are properly filed in their respective courts. Should you have any inquiries related to the above case, call us at toll free number or visit our office near you.

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