Opinion
2013-01-30
Smith CAROBERT, appellant, v. BALDOR ELECTRIC COMPANY, et al., respondents.
The Perecman Firm, PLLC, New York, N.Y. (Peter D. Rigelhaupt of counsel), for appellant. Herzfeld & Rubin, P.C., New York, N.Y. (Linda M. Brown and Thompson Coburn, LLP, of counsel), for respondent Baldor Electric Company.
The Perecman Firm, PLLC, New York, N.Y. (Peter D. Rigelhaupt of counsel), for appellant. Herzfeld & Rubin, P.C., New York, N.Y. (Linda M. Brown and Thompson Coburn, LLP, of counsel), for respondent Baldor Electric Company.
Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains, N.Y. (Melissa A. McCarthy of counsel), for respondent MSC Industrial Direct Co., Inc., doing business as MSC Industrial Supply Co., Inc.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Schmidt, J.), dated November 10, 2011, which, after a hearing on the issue of residency for purposes of venue, granted the defendants' respective motions to change the venue of the action from Kings County to Nassau County.
ORDERED that the order is affirmed, with one bill of costs.
A demand to change venue based on the designation of an improper county ( see CPLR 510[1] ) “shall be served with the answer or before the answer is served” (CPLR 511[a]; see Thomas v. Guttikonda, 68 A.D.3d 853, 854, 889 N.Y.S.2d 679). Since the defendants did not serve their demands for a change of venue until after they served their answers, they were not entitled to change venue as of right ( see Thomas v. Guttikonda, 68 A.D.3d at 854, 889 N.Y.S.2d 679;Jeffrey L. Rosenberg & Assoc., LLC v. Lajaunie, 54 A.D.3d 813, 816, 864 N.Y.S.2d 471;Palla v. Doctors Hosp. of Staten Is., 248 A.D.2d 603, 669 N.Y.S.2d 940). Thus, their motions became motions addressed to the Supreme Court's discretion ( see Forbes v. Rubinovich, 94 A.D.3d 809, 943 N.Y.S.2d 120;Brash v. Richards, 87 A.D.3d 556, 557, 929 N.Y.S.2d 745;Thomas v. Guttikonda, 68 A.D.3d at 854, 889 N.Y.S.2d 679).
In support of their respective motions, the defendants submitted evidence establishing, prima facie, that none of the parties resided in Kings County when the action was commenced ( see CPLR 503[a] ). In opposition, and after a residency hearing, the plaintiff failed to establish through documentary evidence that he resided in Kings County with any degree of permanency at the time of the commencement of the action ( see Forbes v. Rubinovich, 94 A.D.3d at 810, 943 N.Y.S.2d 120;Doe v. Hall, 36 A.D.3d 651, 830 N.Y.S.2d 178;Harley v. Miller, 295 A.D.2d 401, 743 N.Y.S.2d 316;Buziashvili v. Ryan, 264 A.D.2d 797, 798, 695 N.Y.S.2d 396). By improperly commencing the action in Kings County, the plaintiff forfeited the right to select venue ( see Ruiz v. Lazala, 26 A.D.3d 366, 367, 811 N.Y.S.2d 410;Fisher v. Finnegan–Curtis, 8 A.D.3d 527, 528, 779 N.Y.S.2d 221;Dalton v. Barrett, 275 A.D.2d 297, 298, 712 N.Y.S.2d 566). Furthermore, the plaintiff failed to show that the county specified by the defendants was improper, and did not cross-move to retain venue in Kings County or to transfer venue to a county other than that urged by the defendants ( see Fisher v. Finnegan–Curtis, 8 A.D.3d at 528, 779 N.Y.S.2d 221;Nixon v. Federated Dept. Stores, 170 A.D.2d 659, 567 N.Y.S.2d 80;Kelson v. Nedicks Stores, 104 A.D.2d 315, 316, 478 N.Y.S.2d 648). Moreover, the defendants promptly moved to change venue after ascertaining the plaintiff's true residence ( see Brash v. Richards, 87 A.D.3d at 557, 929 N.Y.S.2d 745;Neu v. St. John's Episcopal Hosp., 27 A.D.3d 538, 539, 811 N.Y.S.2d 433;Supino v. PV Holding Corp., 291 A.D.2d 489, 738 N.Y.S.2d 675;Buziashvili v. Ryan, 264 A.D.2d at 798, 695 N.Y.S.2d 396). Accordingly, the Supreme Court providently exercised its discretion in granting the defendants' respective motions to change the venue of the action from Kings County to Nassau County ( see CPLR 510[1] ).