PARKER v. CALAMARAS (2000)

Order, Supreme Court, Bronx County (Alan Saks, J.), entered February 22, 1999, which granted the motion for a change of venue to Nassau County, unanimously reversed, on the law and the facts, without costs, and the motion denied.   Appeal from order, same court (George Friedman, J.), entered on or about June 17, 1999, which, insofar as appealable, denied plaintiff's motion to renew the above described order, unanimously dismissed, without costs, as academic.

The motion court erred in excusing defendants' failure to comply with the time limit of CPLR 511 based on its finding that plaintiff's statement that he resided in the Bronx had been misleading (see, Roman v. Brereton, 182 A.D.2d 556, 582 N.Y.S.2d 710).   The only evidence presented by defendants in support of their contention that plaintiff had misled them was a single medical record stating that plaintiff resided in Queens.   Plaintiff, in opposition, submitted his verified bill of particulars averring his residence as Bronx County and a letter from plaintiff's attorney to plaintiff at his Bronx address.   Also before the court was plaintiff's attorney's affirmation that he was eligible to verify the complaint under CPLR 3020(d)(3) because plaintiff did not reside in Queens, where the attorney maintained his office.   Under these circumstances, defendants did not meet their burden of proof in demonstrating that plaintiff had deceived them in stating that he resided in Bronx County.

MEMORANDUM DECISION.