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The Coughlin Affd. cont…

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.

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. 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 injury 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.

First Department case law, which is controlling over this Injury Court, makes clear that for the purpose of deciding whether the placement of venue is proper “the controlling date is the date of commencement of the action. The First Department also makes clear that in the absence of evidence that a plaintiff’s residency was contrived for the sole purpose of obtaining an advantageous venue, it is proper to conclude that the plaintiff was a bona fide resident of the county wherein he or she resided at the time the action was commenced.

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