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NY Appellate Court Denies Change of Venue Motion


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.

The other cases defendants cite also are unavailing. In Jones-Ledbetter v Biltmore Auto Sales, Inc. the plaintiff filed an action basing venue on her residence in Bronx County, a mere three months after moving to Bronx County from Westchester County. However, one week after the plaintiff moved to the Bronx, she registered her car in Westchester County, and in her affidavit, the injury plaintiff acknowledged that she and her family were now residing in Putnam County. After examining plaintiff’s affidavit, the Second Department determined that the move was not made with the bona fide intent to retain the place in Bronx County as a residence for some length of time and with some degree of permanency.

In Sibrizzi v Mount Tom Day School, the First Department held that the trial court did not abuse its discretion in granting the motion for a change of venue given its finding that plaintiffs’ occupancy of a relative’s home in the Bronx while their Westchester home was being renovated indicated a lack of intent to remain in the Bronx. In Morreale v 105 Page Homeowners Ass’n, Inc., the evidence revealed that on or about December 31, 2005, which was just over one year after the subject bicycle accident, the plaintiff moved to her son’s apartment in Brooklyn from her house in Staten Island after a `diabetic episode, that in March or April 2006, she entered into a contract to purchase a house in New Jersey, that on August 8, 2006, three days after commencing this action, she took over her new house in New Jersey, and moved into it in November 2006. The Second Department determined that the plaintiff was temporarily staying in a Brooklyn apartment without the bona fide intent to retain the place as a residence for some length of time and with some degree of permanency when she commenced her action. Therefore, the motion to change venue from Kings County to Richmond County, where the defendants resided, should have been granted, the Court held.

Here, unlike the plaintiffs in the cases above, plaintiff had not recently moved to New York County when she filed the instant action. Instead, she had lived at the premises for two years prior. Therefore, none of these cases is on point.

Further, Ellis v Wirshba, another case defendants cite, does not support defendants’ contention that venue should be changed to Westchester County. In Ellis, the defendants demonstrated that all of the parties resided in Westchester County. However, the Second Department held that the plaintiff’s affidavits and the annexed copies of the sublease and contract for the sale of a cooperative apartment, utility bill, stock certificate, and liability insurance sufficiently established the plaintiff’s bona fide intent to retain New York County as their residence with some degree of permanency at the time of the commencement of the action.

As it is clear from the evidence in the record that plaintiff was a resident of New York County at the time she commenced the instant action, and that her residence in New York County was not contrived to obtain an advantageous venue, defendants’ motion is denied. Medical Malpractice was not charged.

Based on the foregoing, it is hereby ordered that the motion of defendants Mr. HS and 214 E. 83 Street Realty, LLC for an order, pursuant to CPLR §511, to change the venue of this action brought by plaintiff JC is denied; and it is further ordered that counsel for plaintiff and counsel for defendants appear for a Preliminary Conference before Justice Carol Edmead, 60 Center Street, Part 35, Rm. 438 on Tuesday, March 30, 2010 at 2:15 p.m.; and it is further ordered that defendants serve a copy of this order with notice of entry upon all parties within 20 days of entry.

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