New York Appellate Court Hears Arguments for Change of Venue in Personal Injury Case

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.

Here, plaintiff resided in New York Kings County for two years before she commenced the medical instant action, and defendants make no showing that a change of venue is warranted for the convenience of material witnesses or for the furtherance of justice. Further, while it is undisputed that plaintiff moved to Pennsylvania soon after she commenced the instant action, defendants provide no evidence that plaintiffs New York Kings County residency was contrived for the sole purpose of obtaining an advantageous venue. To the contrary, plaintiff attests:

I began my full-time residence in the State of New York, County of New York on September 5, 2007, when I moved into my apartment located at the premises. I was employed by the law firm of Landman, Corsi, Ballaine & Ford in Manhattan at the time. For over two (2) years, I lived exclusively at the premises. My checks from the Landman, Corsi law firm were issued to the 214 East 83rd Street address. My income tax returns were filed with this same address. My bank statements and bills were issued to the 214 East 83rd Street address. In short, during this time period I had no dwelling, residence, domicile, office or other ties to the Commonwealth of Pennsylvania, other than having family who lived there in their own homes. From September 5, 2007 until the time I left my Manhattan apartment, I never resided in Pennsylvania,