Opinion
12280/08.
Decided March 26, 2009.
Wolf Fuhrman LLP, Bronx, NY, for plaintiff.
SMR Gateway, NY, NY, for defendant.
GMRI, Steven F. Goldstein LLP, Carle Place, NY, for defendant.
On July 7, 2007, defendant SMR GATEWAY 1, LLC (hereinafter SMR) moves pursuant to CPLR § 503(a) for an order changing the venue of this action as of right from Kings County to New York County Supreme Court. Co-defendant GMRI, Inc. (hereinafter GMRI) supports the motion and plaintiffs oppose it.
On April 18, 2008, plaintiffs commenced this action for personal injury by filing a summons and complaint with the Kings County clerk's office alleging, among other things, the following salient facts. Plaintiffs are residents of Queens County and SMR is a limited liability company with its principal place of business in New York County, a fact admitted in SMR's answer to the complaint. GMRI is a corporation and doing business at a Red Lobster Restaurant located at 455 Gateway Drive, Brooklyn, New York. Defendants SMR and GMRI joined issue by their answers dated June 9 and 23, 2008, respectively.
The Motion Papers
SMR's motion contains an affirmation of counsel, three published Appellate Division decisions on venue and three annexed exhibits. The first exhibit is the summons and complaint. The second is SMR's answer and demand to change venue. The third are two web pages from the New York State Department of State, one containing information about SMR and the other about GMRI.
GMRI's supporting papers contain an affirmation of their counsel, their answer to the complaint and copies of SMR's instant motion.
Plaintiff's opposition papers contain an affirmation of their counsel and nine exhibits. The first exhibit are portions of plaintiff's medical records from Jamaica Hospital. The second exhibit is the summons and complaint. The third exhibit contains each defendant's answers to the complaint and discovery demands. The fourth exhibit is plaintiffs' response to each defendant's demand for a bill of particulars. The fifth exhibit is the preliminary conference order signed by the parties on August 6, 2008. The sixth exhibit is a copy of the exact same web pages from the New York State Department of State about GMRI annexed as the third exhibit to the instant motion. The seventh exhibit is web pages from the New York State Division of Alcoholic Beverage Control about GMRI. The eighth exhibit is SMR's request for judicial intervention. The ninth exhibit is the Court's web page on the instant motion.
SMR submitted an attorney's affirmation in reply to plaintiff's opposition papers.
The motion was adjourned from the 10th to the 31st of October 2008. By order of this court issued October 31, 2008, the court granted SMR's application to serve and submit supplemental proof in support of the motion and denied plaintiff's cross-motion for a change of venue on discretionary grounds. The court directed SMR to serve all parties with its supplemental proof by November 21, 2008 and adjourned the motion to December 5, 2008. On December 5, 2008, SMR orally sought leave to serve the supplemental proofs late having missed the November 21, 2008 deadline. Plaintiff opposed and the court denied SMR's request.
APPLICABLE LAW
CPLR § 503(a) provides, in general, that venue is based on residence of the parties at the time the action was commenced or, if none of the parties then resided in the state, in any county designated by the plaintiff. A party resident in more than one county shall be deemed a resident of each such county. CPLR § 503(c) pertains to venue of a corporation and provides in pertinent part that a domestic corporation, or a foreign corporation authorized to transact business in the state, shall be deemed a resident of the county in which its principal office is located.
As a general proposition, the county designated in a Certificate of Incorporation as the principal place of business of a particular corporation will be controlling as to the residence of that entity (CPLR § 503[c]; Bailey v. New York Racing Ass'n, Inc., 90 AD2d 710 [2nd Dept 1982]).
State Technology Law § 306 provides that in any legal proceeding where the provisions of the civil practice law and rules are applicable, an electronic record or electronic signature may be admitted into evidence pursuant to the provisions of article forty-five of the civil practice law and rules including, but not limited to section four thousand five hundred thirty-nine of such law and rules.
Section § 302(1) and (2) of the state technology law defines electronic and electronic record as follows. For the purpose of this article: 1. "Electronic" shall mean of or relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities. 2. "Electronic record" shall mean information, evidencing any act, transaction, occurrence, event, or other activity, produced or stored by electronic means and capable of being accurately reproduced in forms perceptible by human sensory capabilities.
CPLR § 4518 (a) pertains to the admissibility of business records and provides in pertinent part as follows: An electronic record, as defined in section three hundred two of the state technology law, used or stored as such a memorandum or record, shall be admissible in a tangible exhibit that is a true and accurate representation of such electronic record.CPLR § 4520 provides as follows:
Certificate or affidavit of public officer. Where a public officer is required or authorized, by special provision of law, to make a certificate or an affidavit to a fact ascertained, or an act performed, by him in the course of his official duty, and to file or deposit it in a public office of the state, the certificate or affidavit so filed or deposited is prima facie evidence of the facts stated.
CPLR § 4520 creates a hearsay exception for certain records prepared by public officers. To fall within CPLR § 4520 the public record must meet several requirements: (1) the record must be made by a public officer; (2) it must be in the form of a 'certificate' or 'affidavit'; (3) the record must be required or authorized 'by special provision of law'; (4) it must be made in the course of the officer's official duty; (5) it must be a record of a fact ascertained or an act performed by the officer; and (6) it must be on file or deposit in a public office of the state. Only a few types of formal public records have been deemed to meet all of these criteria. Examples include a report of receipts and disbursements of the highway department prepared by a county treasurer pursuant to statutory requirement and filed with the county board of supervisors, and a verified statement of a bank's assets and liabilities prepared by the superintendent of banks and filed with the county clerk pursuant to statute." (Vincent C. Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C4520:1, at 240-242 ( Miriam Osborn Memorial Home Ass'n v. Assessor of City, 9 Misc 3d 1019 [Sup Ct Westchester Co. 2005]).
The common-law public documents hearsay exception is broader than CPLR § 4520 and has not been superceded by statute (see Consolidated Midland Corp. v. Columbia Pharm. Corp., 42 AD2d 601 [2d Dept 1973]). Therefore, the public document is admissible without the testimony of the official who made it, but it must be authenticated ( see e.g. People v. Garneau, 120 AD2d 112, 166[4th Dept 1976]). It is well settled that to be admissible, any public document must be authenticated as being that which it purports to be . . ."( People v. Smith 258 AD2d 245, 249 [4th Dept. 1999]). Following that determination, the question remains whether the document has been properly authenticated"]; Prince, Richardson on Evidence § 8-1101 [Farrell 11th ed]). Authentication of certain public records may be accomplished by certification as provided in CPLR § 4518(c).
Authentication under either the statutory or common-law public document exception is a two-step process. If the document is attested as correct by the official or deputy having legal custody of it, it becomes 'prima facie evidence of such record' (CPLR4540[a]). Attestation involves a comparison of the copy with the original and a statement of the accuracy of the copy. The additional standard to be satisfied for proper authentication is compliance with one of the three allowable methods of certification (CPLR § 4540[b]).( Miriam Osborn Memorial Home Ass'n v. Assessor of City, 9 Misc 3d 1019 [Sup Ct Westchester Co. 2005].
CPLR § 4540[b] provides as follows: Certificate of officer of the state. Where the copy is attested by an officer of the state, it shall be accompanied by a certificate signed by, or with a facsimile of the signature of, the clerk of a court having legal custody of the record, and, except where the copy is used in the same court or before one of its officers, with the seal of the court affixed; or signed by, or with a facsimile of the signature of, the officer having legal custody of the original, or his deputy or clerk, with his official seal affixed; or signed by, or with a facsimile of the signature of, the presiding officer, secretary or clerk of the public body or board and, except where it is certified by the clerk or secretary of either house of the legislature, with the seal of the body or board affixed. If the certificate is made by a county clerk, the county seal shall be affixed.
DISCUSSION
Neither the plaintiffs nor SMR are residents of Kings County. Nor is there any dispute that plaintiffs filed the action in Kings County based on their belief that GMRI's residence is Kings County. GMRI's papers submitted in support of SMR's motion included its answer to the complaint as well as copies of part of SMR's motion papers. None of the motion papers contained a copy of GMRI's Certificate of Incorporation to show which county GMRI designated as its principal place of business. While it is clear that a certified copy GMRI's Certificate of Incorporation would have been the ideal method to show GMRI's designated county of choice for its principal place of business, it was not provided. The question that remains is whether the document submitted by GMRI which was printed from a web site of the New York State Department of State is admissible and, if so, whether it is sufficient to prove the same fact.
The affirmation of SMR's counsel in support of the motion avers that exhibit C is a record kept and maintained by the State of New York Department of State on their official government website. This web page printout was the only evidence SMR submitted to demonstrate the county which GMRI designated as its principal place of business. Unless this document is deemed admissible as prima facie evidence of the facts asserted therein, SMR's motion would have no evidence to support it.
At first glance the court was not convinced of the admissibility of the tendered document, and granted SMR leave to supplement its proof. When SMR failed without good cause to meet the deadline, the court was left with the proof originally submitted.
The web site document states that it is from the Division of Corporations and pertains to the entity named GMRI, INC. a foreign business corporation. It provided the entity's initial filing date, county and jurisdiction. All of this data would be required information by a foreign business corporation seeking authority to do business in New York State pursuant to Business Corporation Law § 1304. In fact, Section 1304(a)(5) requires the applicant to designate the county within this state in which its office is to be located. The web document indicated that GMRI's County was New York.
The court finds that the web document submitted by SMR is a government record maintained and kept by the State of New York Department of State on its official government web site. The court therefore finds that the information contained on the document is an exception to the hearsay rule under CPLR 4518(a), business records exception and under State Technology Law § 306. In fact other courts have taken judicial notice of such records notwithstanding the parties failure to admit such documents ( see: Proscan Radiology of Buffalo v. Progressive Cas. Ins. Co., 12 Misc 3d 1176(A) [NY City Ct. 2006] citing Miriam Osborn Memorial Home Ass'n v. Assessor of City, 9 Misc 3d 1019. As such, SMR has established that it is a resident of New York County by tendering evidence in admissible establishing same. Plaintiffs assumption that GMRI was a resident of King's County was mistaken.
CPLR § 510 provides three grounds for changing the place of trial of an action. The court may change the place of trial because the county designated for that purpose is not a proper county; or there is reason to believe that an impartial trial cannot be had in the proper county; or the convenience of material witnesses and the ends of justice will be promoted by the change. Only the first ground is considered a change as of right.
Actions brought in the wrong county contrary to CPLR § 503(a) may be changed as of right ( see Jason v Dumal, 3 Misc 3d 1101 (A), Kings County Supreme Court 2004]). A defendant's desire for a change of venue as of right must be commenced by first issuing a demand upon the plaintiff pursuant to CPLR § 510 (1) and absent acquiescence by plaintiff, by a motion filed with the court pursuant to CPLR § 511(b). SMR complied with CPLR §§ 510 (1) and 511 (b), by serving a demand to change venue to New York County and bringing the instant motion. SMR has also shown that neither it or any other party is a resident of Kings County. SMR's motion to change venue as of right to New York County is granted.
The foregoing constitutes the decision and order of the court.