JOSEPH v. KAUFMAN (2020)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Kings County (Edgar G. Walker, J.), dated August 16, 2019.  The order granted the defendant's motion to change the venue of the action from Kings County to Rockland County and directed the Clerk of the Supreme Court, Kings County, to transfer the file in the action to the Clerk of the Supreme Court, Rockland County.

ORDERED that the order is reversed, on the law, with costs, the defendant's motion to change the venue of the action from Kings County to Rockland County is denied, and the Clerk of the Supreme Court, Rockland County, is directed to deliver to the Clerk of the Supreme Court, Kings County, all papers filed in this action and certified copies of all minutes and entries (see CPLR 511[d] ).

In February 2019, the plaintiffs commenced this action in the Supreme Court, Kings County, to recover damages for personal injuries they each allegedly sustained in a motor vehicle accident that occurred in Rockland County.  The plaintiffs' basis of venue was the defendant's residence as stated in the police accident report.  The defendant moved pursuant to CPLR 510(1) and (3) and 511(a) to change the venue of the action from Kings County to Rockland County, arguing, inter alia, that none of the parties resided in Kings County at the time of the commencement of the action.  In an order dated August 16, 2019, the Supreme Court granted the defendant's motion.  The plaintiffs appeal.

“The court, upon motion, may change the place of trial of an action where ․ the county designated for that purpose is not a proper county” (CPLR 510[1] ).  “To prevail on a motion pursuant to CPLR 510(1) to change venue, a defendant must show that the plaintiff's choice of venue is improper, and also that the defendant's choice of venue is proper” (Williams v. Staten Is. Univ. Hosp., 179 A.D.3d 869, 870, 117 N.Y.S.3d 305).  “Only if a defendant meets this burden is the plaintiff required to establish, in opposition, that the venue selected was proper” (Harvey v. Ogunfowora, 179 A.D.3d 775, 776, 113 N.Y.S.3d 901).

CPLR 503(a) provides, in relevant part, that “the place of trial shall be in the county in which one of the parties resided when [the action] was commenced” (see Guerrero v. BRE Park Ave. Tower Owner, LLC, 176 A.D.3d 1035, 1036, 108 N.Y.S.3d 878).  To succeed on his motion, the defendant needed to demonstrate that on the date this action was commenced, none of the parties resided in Kings County (see Drayer–Arnow v. Ambrosio & Co., Inc., 181 A.D.3d 651, 652, 121 N.Y.S.3d 112;  Pomaquiza v. 145 WS Owner, LLC, 172 A.D.3d 1119, 1120, 101 N.Y.S.3d 349).

The defendant's conclusory statement in his affidavit that he resided in Rockland County when this action was commenced, without any supporting documentary evidence, was insufficient to establish that he resided in Rockland County, and not Kings County, at the time this action was commenced (see Lividini v. Goldstein, 175 A.D.3d 420, 421–422, 107 N.Y.S.3d 18;  Forbes v. Rubinovich, 94 A.D.3d 809, 810, 943 N.Y.S.2d 120;  Ingenito v. Wantagh Racket Sports, Inc., 47 A.D.3d 887, 888, 852 N.Y.S.2d 167;  Gonzalez v. Weiss, 38 A.D.3d 492, 493, 835 N.Y.S.2d 193;  Furth v. ELRAC, Inc., 11 A.D.3d 509, 510, 784 N.Y.S.2d 112).  Further, the documentary evidence that the defendant submitted for the first time in his reply papers was not properly before the Supreme Court (see Pinos v. Clinton Cafe & Deli, Inc., 139 A.D.3d 1034, 1036, 33 N.Y.S.3d 322;  Dyer v. 930 Flushing, LLC, 118 A.D.3d 742, 743, 987 N.Y.S.2d 206;  Gonzalez v. Sun Moon Enters. Corp., 53 A.D.3d 526, 526–527, 861 N.Y.S.2d 401).

Moreover, the defendant was not entitled to a change of venue pursuant to CPLR 510(3), as he failed to meet the criteria for a change of venue based on the convenience of material nonparty witnesses (see Drayer–Arnow v. Ambrosio & Co., Inc., 181 A.D.3d at 653, 121 N.Y.S.3d 112;  O'Brien v. Vassar Bros. Hosp., 207 A.D.2d 169, 172–173, 622 N.Y.S.2d 284).

Accordingly, the Supreme Court should have denied the defendant's motion to change the venue of the action from Kings County to Rockland County.

RIVERA, J.P., MALTESE, BARROS, BRATHWAITE NELSON and IANNACCI, JJ., concur.