BELI v. LACQUA (2023)

DECISION & ORDER

In an action, inter alia, to recover damages for medical malpractice, the defendant appeals from an order of the Supreme Court, Kings County (Genine D. Edwards, J.), dated January 11, 2021.  The order denied the defendant's motion pursuant to CPLR 510(1) and 511 to change the venue of the action from Kings County to Richmond County.

ORDERED that the order is affirmed, with costs.

The plaintiff commenced this action, inter alia, to recover damages for medical malpractice against the defendant physician in Kings County.  Thereafter, the defendant served a demand for a change of venue, and subsequently moved pursuant to CPLR 510(1) and 511 to change venue to Richmond County, asserting that neither party resided in Kings County and none of the acts or omissions alleged in the complaint occurred in Kings County.  The Supreme Court denied the motion, and the defendant appeals.

“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;  see Pomerantsev v. Kodinsky, 156 A.D.3d 655, 656, 64 N.Y.S.3d 571;  Deas v. Ahmed, 120 A.D.3d 750, 750, 991 N.Y.S.2d 661).  Here, in support of his motion, the defendant “was obligated to demonstrate that, on the date that this action was commenced, neither of the parties resided in” Kings County (Chehab v. Roitman, 120 A.D.3d 736, 737, 992 N.Y.S.2d 74).  For purposes of determining the proper venue of an action, “a party may have more than one residence” (Bostick v. Safa, 173 A.D.3d 823, 824, 102 N.Y.S.3d 666;  see CPLR 503(a);  Young Sun Chung v. Kwah, 122 A.D.3d 729, 730, 996 N.Y.S.2d 153), and under CPLR 503(d), “ ‘the county of an individual's principal office is a proper venue for claims arising out of that business’ ” (Bostick v. Safa, 173 A.D.3d at 824, 102 N.Y.S.3d 666, quoting Young Sun Chung v. Kwah, 122 A.D.3d at 730, 996 N.Y.S.2d 153).

The affidavit submitted by the defendant in support of his motion, in which he asserted in a conclusory manner that the office he maintained in Kings County was not his principal office, was insufficient to demonstrate that Kings County was an improper venue for trial (see Joseph v. Kaufman, 188 A.D.3d 847, 848, 135 N.Y.S.3d 428;  Gonzalez v. Weiss, 38 A.D.3d 492, 493, 835 N.Y.S.2d 193).  While the defendant subsequently provided a more detailed affidavit, that affidavit was not properly before the Supreme Court and, thus, could not satisfy the defendant's burden on the motion, as it was submitted for the first time with the defendant's reply papers (see Joseph v. Kaufman, 188 A.D.3d at 848, 135 N.Y.S.3d 428;  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).

Accordingly, the Supreme Court properly denied the defendant's motion pursuant to CPLR 510(1) and 511 to change the venue of the action from Kings County to Richmond County.

BARROS, J.P., MILLER, ZAYAS and WAN, JJ., concur.