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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.

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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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In the first instance, and contrary to the defendants’ contention, the notice of claim was sufficient to enable the defendants to investigate the allegations contained therein. The notice of claim was sufficient for the defendant to locate the place, fix the time, and understand the nature of the accident. Further, there is no merit to the defendants’ contention that the plaintiff changed his theory of recovery from a claim that he was hit by a bus designated as number 9167, as set forth in the notice of claim, to a generalized claim at trial that he was merely hit by a bus. The theory propounded by the plaintiff at trial, and as charged to the jury, was that the plaintiff was hit by a bus operated by JA, and that the particular bus operated by Arroyo was designated as number 9167. Accordingly, the plaintiff did not rest his action on a theory that was not asserted in the notice of claim.

Additionally, we reject the defendants’ contentions that, based on the evidence adduced at trial, the jury’s findings that the defendants were negligent and that the plaintiff’s injuries constituted a serious injury, as well as the jury’s apportionment of fault between the plaintiff and the defendants, were not rationally based on a valid line of reasoning and permissible inferences drawn from that evidence.

Moreover, it is for the jury to make determinations as to the credibility of the witnesses, and it is accorded great deference, as it had the opportunity to see and hear the witnesses. A jury verdict in favor of a plaintiff may not be set aside as contrary to the weight of the evidence unless the evidence so preponderates in favor of the defendants that the verdict could not have been reached on any fair interpretation of the evidence. Here, the jury verdicts on the issues of the defendants’ negligence and the apportionment of fault were not contrary to the weight of the evidence, since they were based upon a fair interpretation of the evidence.

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In an action to recover damages for personal injuries, the defendants appeal from a judgment of the Supreme Court, Kings County dated May 27, 2008, which, upon a jury verdict on the issue of liability finding that they were 80% at fault in the happening of the automobile accident and that the plaintiff was 20% at fault in the happening of the accident, upon a jury verdict on the issue of damages, and upon an order of the same court dated February 26, 2008, denying their motion pursuant to CPLR 4404(a), inter alia, to set aside the verdicts on the issues of liability and damages and for judgment as a matter of law or, in the alternative, for a new trial is in favor of the plaintiff and against them in the principal sum of $2,375,871.

On September 22, 2003, the plaintiff, LR, allegedly was injured when he was struck by a bus owned by the defendant New York City Transit Authority (hereinafter NYCTA) and operated by JA, sued herein as John Doe, as the plaintiff was crossing Gates Avenue at its intersection with Franklin Avenue in Brooklyn.

After serving a notice of claim upon NYCTA, and thereafter commencing this action, the plaintiff served a verified bill of particulars dated June 4, 2003, alleging that he sustained permanent, serious personal injuries including, inter alia, L5–S1 disc protrusion with impingement on the proximal right S1 nerve root and L4–5 disc bulge. On July 27, 2006, he underwent surgery consisting of right-sided hemilaminotomy, L5–S1 and right-sided partial disectomy L5–S1. The plaintiff did not claim aggravation of any preexisting condition or prior injuries. After the trial on the issue of liability, the jury found the defendants 80% at fault in the happening of the accident and the plaintiff 20% at fault.

After the trial on the issue of damages, the jury found that the plaintiff, as a result of the accident of September 22, 2003, sustained a significant limitation of use of body function or system. The jury awarded the plaintiff the sums of $200,000 for past pain and suffering, $1,210,000 for future pain and suffering for 25 years, $60,000 for past loss of earnings, and $905,871 for future loss of earnings over 17 years.

The defendants moved, pursuant to CPLR 4404(a), inter alia, to set aside the jury verdict on the issues of liability and damages, and for a judgment as a matter of law, arguing, among other things, that several of the plaintiff’s injuries were not proximately caused by the subject accident, and that those injuries which may have been caused by the accident did not meet the threshold of serious injury required by Insurance Law § 5102(d). In an order dated February 26, 2008, the Supreme Court denied the defendants’ motion. A judgment in favor of the plaintiff was subsequently entered. The defendants appeal. We reverse, and grant a new trial on the issues of causation and, if necessary, damages.

A postverdict motion pursuant to CPLR 4404(a) for judgment as a matter of law, made on the ground that a jury verdict is not supported by legally sufficient evidence, may be granted only if the court concludes that there is simply no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusion reached by the jury on the basis of the evidence presented at trial.

To Be cont….
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The primary difficulty, however, with the future loss-of-earnings award is the evidence, presented by Plaintiff’s own witness, that, even after the accident, Plaintiff was able to do other work. Indeed, both before and after the accident, Plaintiff developed a tax preparation business that yielded the same compensation for four-months’ effort that driving a taxi yielded for eight months, even assuming he was not doing both during January through April. And, even assuming that Plaintiff’s tax preparation business could not be extended beyond that four-month period, it demonstrates Plaintiff’s ability to earn by doing work other than taxi driving that could provide even higher compensation.

Plaintiff testified to no efforts made after the accident to replace his income from taxi driving, although, to be fair, he was not asked by either his counsel or Defendants’. The question is, was it Plaintiff’s burden to introduce evidence that he would be unable to replace the income from taxi driving, in order to show loss in fact, or was it Defendants’ burden in an effort to mitigate damages that necessarily would follow?

A litigant who seeks recovery for diminution of future earnings is obligated to submit some evidence showing the difference between what he is now able to earn and what he could have earned if he had not been injured. Here, Plaintiff’s evidence as to “what he is now able to earn” is limited to the four-month period during which he provides tax preparation services.

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At the core of lost earnings assessment is the focus, in part, on the plaintiff’s earning capacity both before and after the injury. When future loss of earnings is claimed, reasonable certainty must be based upon future probabilities. An expert vocational economic analyst is permitted to provide an opinion as to future lost earnings, since the process of calculating such damages is beyond the general knowledge of the average juror. Where the plaintiff is an infant, expert opinion of that type might be required.

The lost earnings claim, therefore, is comprised of several interrelated elements, on each of which the plaintiff bears at least the burden of coming forward with evidence: medical evidence of disability, depending upon the nature of the injury; proof of causation in fact, primarily the difference between the plaintiff’s earning capacity before and after the accident and proof of the amount of the loss, including necessary documentation and fair calculation.

An injured plaintiff, moreover, is obligated to mitigate damages by endeavoring to seek alternate employment.

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As previously noted, the jury awarded Plaintiff $87,500 for past lost earnings, and $300,000 for future lost earnings, intended to compensate Plaintiff for 30 years. Defendants challenge both awards, but on different grounds. As for the award for past lost earnings, Defendants contend that the evidence does not support an award of $87,500 for the three and a half year period from the date of the accident until trial. Rather, according to Defendants, at the annual rate of approximately $19,000, the verdict could have been approximately $70,000.

Defendants also point out that Insurance Law § 5104 [a] precludes recovery of basic economic loss which does not exceed $50,000.00.

As for the award for future lost earnings, Defendants contend that it must be vacated in its entirety. Defendants argue that the claim of plaintiff and Dr. CK that plaintiff is unable to return to driving a taxi is not a sufficient basis to justify an award of future lost earnings; rather, plaintiff must establish that Mr. MM is precluded from engaging in any wage earning activity.

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On December 3, 2008, at the conclusion of the liability phase of a bifurcated trial in this action, arising out of auto accident collision on June 5, 2005, the jury determined that defendants R.W. Express LLC and AW were solely at fault in causing the collision. On December 9, 2008, at the conclusion of the liability phase of the trial, the jury determined that Plaintiff MM had sustained a serious injury within the meaning of Insurance Law § 5102 (d), and awarded him damages in the total amount of $517,500; representing $30,000 for past pain and suffering; $100,000 for future pain and suffering, intended to compensate for a period of 30 years; $87,500 for past loss of earnings; and $300,000 for future loss of earnings, again intended to provide compensation for a period of 30 years.

Defendants R.W. Express LLC and AW now move for an order setting aside portions of the verdict, presumably pursuant to CPLR 4404 (a), although no statutory provision is cited in the Notice of Motion or the Affirmation in Support. Plaintiff understands the motion as seeking relief pursuant to CPLR § 4404 urging that the jury verdict deviates materially from what would be reasonable compensation, although the material deviation standard is found in CPLR 5501 (c). As will appear, both CPLR 4404 (a) and CPLR 5501 (c) figure prominently in the review of jury verdicts awarding damages for personal injury, both for economic loss and non-economic loss.

Defendants do not seek review of the awards for past and future pain and suffering. The motion is limited to the awards for loss of earnings, past and future, seeking reduction of the former and the setting aside of the latter. As to the award for future loss of earnings, Defendants do not state whether they seek judgment as a matter of law on that part of the verdict, or a new trial. The tenor of Defendants’ argument, however, is that Plaintiff is not entitled to any compensation for future loss of earnings.

Plaintiff MM was 34 years old on the date of the accident, June 5, 2005, and was 37 years old at trial. Prior to 2005, and after he immigrated to the United States, Plaintiff worked only as a taxi driver, although he was also involved, without pay, with an organization that provided aid to persons in Bangladesh and immigrants from that country. Defendants maintain that the evidence at trial would support a finding of pre-accident earnings from taxi driving of approximately $ 19,000 each year, which is actually more than the amount proferred by Plaintiff.

Beginning in 2005, Plaintiff has provided income tax preparation services, for which he has earned approximately $19,000 to $ 20,000 each year. Plaintiff testified at trial that, before the accident, he intended to both continue to drive a taxi and to provide tax preparation services, the latter during the months January to April, when such services are usually required.
Plaintiff also testified that, after the injury, he tried to continue driving a taxi, but found that he could not. After the accident, Plaintiff treated for approximately eight months at Metro Medical, P.C. No one from Metro Medical testified at trial, but its records were admitted into evidence, and they were reviewed by Plaintiff’s subsequent treating physician, Dr. CK, who did testify.

Dr. CK first saw Plaintiff on May 17, 2006 and last examined him on August 20, 2008. Based upon MRI studies of Plaintiff’s cervical spine and lumbar spine taken, respectively, October 25 and October 28, 2007, i.e., more than two years after the accident, Dr. CK testified that Plaintiff sustained two small bulging discs in his cervical spine, and two herniated discs in his lumbar spine. Dr. CK also testified to other positive findings, including restricted range of motion in the cervical spine and the lumbar spine.

Most important for present purposes is Dr. CK’s testimony concerning Plaintiff’s ability to work, since he provided the only evidence, other than Plaintiff’s testimony, to support the claim for past and future loss of earnings. Dr. CK recounted his understanding of Plaintiff’s work history after the accident.

Upon cross-examination, Dr. CK acknowledged that on June 15, 2006 Plaintiff apparently told one of the other doctors in Dr. CK’s practice that he was then working part-time as a taxi driver.
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The Finch complaint alleged that the defendants improperly placed the infant in non-kinship foster care; failed to provide federally mandated preventive and reunification services; arbitrarily restricted visits between the infant and his grandmother; and failed to provide the infant with treatment for deafness. The policy in that case contained an endorsement with language identical to that contained in ISO Form CG 20-26 in that the City was qualified as an additional insured but only with respect to liability arising out of Talbot’s operations. The policy also contained a clause that excluded from coverage any bodily injury due to the rendering of or failing to render any professional services. The insurer disclaimed coverage for the City arguing that the Finch allegations concerned actions undertaken by social workers in their professional capacities and thus fit completely within the professional services exclusion clause. The insurer further argued that the infant’s injuries did not arise out of the foster care agency’s operations because the City, not the agency, initiated the course of action leading to the alleged injuries by placing the child with the agency instead of in kinship foster care with his grandmother. In granting the City’s motion for a declaration that the insurer was required to defend it, the court reasoned, As a frontline foster care provider, Talbot was in an excellent position perhaps the best position to avoid or reduce the risk that the infant would be harmed while out of his family’s custody. The court further stated, Clearly, to the extent there is liability in this case, the City’s liability stems from Talbot’s operations as well as its own.

Similarly here, irrespective of whether the City had an independent duty to the plaintiffs in the underlying action, the fact remains that Army, through its contract with the City, obligated itself to provide child welfare services, including placement of children in foster homes. Furthermore, according to the allegations in the complaint and Army’s own admission, the infant plaintiff was injured while in foster care with Army’s foster boarding program. Thus, Army’s actions as the frontline foster care provider are a central component of the infant plaintiff’s alleged injuries. Accordingly, Army has failed to meet its burden demonstrating that the allegations of the complaint cast that pleading solely and entirely within the policy exclusions.

Army argues, in the alternative, that should this court find that the Agreement provides for the City’s coverage as an additional insured with respect to the Stanley complaint, the City’s motion must still be denied because the City’s failure to comply with the notice requirements voids any coverage under the Agreement. The personal injury insurance provision in the Agreement required the City to notify the insurer, in this case Army, of any occurrence, offense, claim or suit as soon as practicable. As soon as practicable has been construed to mean within a reasonable time after the duty to give notice arises. The duty to give notice arises when, based on the information available, an insured could glean a reasonable possibility of the policy’s involvement.

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The court is also unpersuaded by Army’s arguments that “this is essentially a claim for indemnity with defense” and that the defense and breach of contract claims herein are identical and duplicative of those asserted in the underlying Stanley action. In the underlying Stanley action, City asserted a cross-claim against Army for contribution and/or indemnity. Here, the City moves for a declaration that, pursuant to the insurance provision in the contract between the parties, Army has a duty to defend City in the underlying Stanley injury action or alternatively, that Army has breached the contract between the parties in that it failed to obtain the insurance required under the terms of the Agreement. An insurer’s duty to defend an insured is separate and apart from an obligation to pay or indemnify an insured.

Accordingly, an insurer may be contractually obligated to defend on a claim for which it is not required to pay or indemnify because it is later discovered that the claim falls within an exclusion. Thus, although the causes of action asserted by the City here and in the underlying Stanley action arise out of the same subject matter or series of alleged wrongs, the nature of the relief sought is not the same or substantially the same and therefore are not duplicative.

The motion herein is for summary judgment declaring that Army is required to defend City in the underlying Stanley action. With respect to Army’s duty to defend, the Agreement provides that Army has no duty to defend the City in personal injury or property damage actions to which the subject insurance does not apply. The Agreement further provides that coverage for the City as an additional insured is only with respect to liability arising out of Army’s operations. In support of its motion, the City annexes a copy of the complaint in the underlying action. The Stanley complaint alleges, in relevant part,

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