CELENTANO v. BOO REALTY LLC (2018)

Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered on or about January 9, 2017, which denied defendants' motion to dismiss the complaint as against defendant Jo Lu Real Properties, Corp. (Jo Lu), and thereupon to change venue to Westchester County, unanimously affirmed, with costs.

In this premises liability action, plaintiff alleges that defendants Boo Realty, LLC and Jo Lu owned, managed and/or maintained plaintiff's apartment, where the accident occurred.  The complaint states a cognizable cause of action against Jo Lu, and its allegations must be accepted as true on a motion to dismiss (see CPLR 3211[a][7];  Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 389 N.Y.S.2d 314, 357 N.E.2d 970 [1976] ).

The documentary evidence submitted by defendants in support of their motion to dismiss neither “utterly refutes plaintiff's factual allegations,” nor “conclusively establishes a defense to the asserted claims as a matter of law” (Mill Fin., LLC v. Gillett, 122 A.D.3d 98, 103, 992 N.Y.S.2d 20 [1st Dept. 2014] [internal quotation marks omitted];  CPLR 3211[a][1] ).  The deed for the property and the lease for plaintiff's apartment show that Boo Realty owns the property, but those documents alone are insufficient to refute plaintiff's allegations that Jo Lu managed and maintained the premises (see 138–140 W. 32nd St. Assoc. LLC v. 138–140 W. 32nd Assoc., 128 A.D.3d 548, 11 N.Y.S.3d 4 [1st Dept. 2015] ).  The factual affidavit of Boo Realty's member is not “documentary evidence” for purposes of CPLR 3211(a)(1) (see Flowers v. 73rd Townhouse LLC, 99 A.D.3d 431, 951 N.Y.S.2d 393 [1st Dept. 2012];  Tsimerman v. Janoff, 40 A.D.3d 242, 835 N.Y.S.2d 146 [1st Dept. 2007] ), and even if the conclusory affidavit is considered, it is insufficient since it failed to explain why Jo Lu is the entity named on the insurance policy for the premises.

Since Jo Lu has a principal place of business in Bronx County, plaintiff properly placed venue there (see Krochta v. On Time Delivery Serv., Inc., 62 A.D.3d 579, 879 N.Y.S.2d 428 [1st Dept. 2009] ).  Defendants made no attempt to demonstrate that a discretionary change of venue would be warranted based on the convenience of any specified witnesses (see CPLR 510[3] ).