Articles Posted in Premises Liability

A New York Personal Injury Lawyer said that, plaintiff, an attorney who was sued by his client’s adversary, respondent herein argues that New York has never required special injury as an element of a malicious prosecution cause of action. Our review of New York case law indicates otherwise, and we decline to overrule those cases that have instilled proof of special injury as a necessary component of a malicious prosecution claim. Indeed, the certified question assumes the existence of the special injury requirement and focuses on what adverse consequences resulting from a civil suit could amount to a special injury. We thus perceive the certified question to be asking whether New York law limits this special injury to proof that a provisional remedy was imposed in a prior civil action.

A New York Premises Liability Lawyer said that, although New York cases do state that interference with person or property the usual consequences of a provisional remedy constitute special injury, New York law does not confine special injury to the imposition of a provisional remedy.

The issue in this case is whether an attorney, sued by his client’s adversary for the purpose of interfering with the attorney’s zealous representation of his client, and whose representation is actually undermined by the suit, may satisfy the required element of special injury in an action for malicious prosecution of a civil lawsuit under New York law where no provisional remedy is had against him.

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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.

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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.

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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.

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Plaintiff further contends that venue is preferred in the county where the cause of action arose. Plaintiffs 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. The Coughlin Affd. makes clear that the instant matter was commenced on September 30, 2009 at 12:49 p.m., and that plaintiff vacated her New York County residence on September 30, 2009 at approximately 8:00 p.m., mere hours after the Summons and Complaint were filed. Therefore, it cannot be said that plaintiff intended to retain her New York County construction residence with any permanency whatsoever at the time this matter was commenced. Instead, plaintiff had every intention of abandoning her New York County residence and had already made arrangements for an alternative residence.

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.

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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.

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