Opinion
2012-04-10
James FORBES, respondent, v. Mitchell RUBINOVICH, etc., appellant, et al., defendants.
Eric T. Schneiderman, Attorney General, New York, N.Y. (Michael S. Belohlavek and Marion R. Buchbinder of counsel), for appellant. Krentsel & Guzman, LLP, New York, N.Y. (Anthony Hirschberger of counsel), for respondent.
Eric T. Schneiderman, Attorney General, New York, N.Y. (Michael S. Belohlavek and Marion R. Buchbinder of counsel), for appellant. Krentsel & Guzman, LLP, New York, N.Y. (Anthony Hirschberger of counsel), for respondent. Burke, Scolamiero, Mortati & Hurd, LLP, Albany, N.Y. (Sarah B. Brancatella of counsel), for defendant Rome Memorial Hospital.PETER B. SKELOS, J.P., THOMAS A. DICKERSON, L. PRISCILLA HALL, SHERI S. ROMAN and JEFFREY A. COHEN, JJ.
In an action, inter alia, to recover damages for medical malpractice and lack of informed consent, the defendant Mitchell Rubinovich appeals, as limited by his notice of appeal and brief, from so much of an order of the Supreme Court, Kings County (Bunyan, J.), dated June 1, 2011, as denied that branch of his motion which was to change the venue of the action from Kings County to Oneida County.
ORDERED that the order is reversed insofar as appealed from, on the facts and in the exercise of discretion, with one bill of costs, that branch of the motion of the defendant Mitchell Rubinovich which was to change the venue of the action from Kings County to Oneida County is granted, and the Clerk of the Supreme Court, Kings County, is directed to deliver to the Clerk of the Supreme Court, Oneida County, all papers filed in this action and certified copies of all minutes and entries ( see CPLR 511[d] ).
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 appellant moved for a change of venue after he served his answer, he was not entitled to a change of venue as of right ( see Thomas v. Guttikonda, 68 A.D.3d at 854, 889 N.Y.S.2d 679; Baez v. Marcus, 58 A.D.3d 585, 586, 874 N.Y.S.2d 134; Jeffrey L. Rosenberg & Assoc., LLC v. Lajaunie, 54 A.D.3d 813, 816, 864 N.Y.S.2d 471). Thus, his motion became one addressed to the court's discretion ( see Brash v. Richards, 87 A.D.3d 556, 557, 929 N.Y.S.2d 745; Accardi v. Kaufmann, 82 A.D.3d 803, 918 N.Y.S.2d 371; Thomas v. Guttikonda, 68 A.D.3d at 854, 889 N.Y.S.2d 679).
In support of his motion, the appellant submitted evidence establishing prima facie that the plaintiff resided in Richmond County and that the defendants resided in Oneida County. In opposition to the motion, the plaintiff was required to establish through documentary evidence that he intended to retain Kings County as a residence for some length of time and with some degree of permanency ( see Buziashvili v. Ryan, 264 A.D.2d 797, 798, 695 N.Y.S.2d 396; Labissiere v. Roland, 231 A.D.2d 687, 647 N.Y.S.2d 541; Mandelbaum v. Mandelbaum, 151 A.D.2d 727, 542 N.Y.S.2d 791). The plaintiff's driver's license, which was issued after the commencement of the action, was irrelevant ( see Buziashvili v. Ryan, 264 A.D.2d at 798, 695 N.Y.S.2d 396; Mandelbaum v. Mandelbaum, 151 A.D.2d 727, 542 N.Y.S.2d 791; Siegfried v. Siegfried, 92 A.D.2d 916, 460 N.Y.S.2d 131). Furthermore, aside from a conclusory statement contained in his affidavit that he resided at an address in Kings County prior to commencing this action, the plaintiff failed to present any other evidence sufficient to establish that he resided in Kings County with any degree of permanency at the time this action was commenced ( see Harley v. Miller, 295 A.D.2d 401, 743 N.Y.S.2d 316; cf. Ellis v. Wirshba, 18 A.D.3d 805, 796 N.Y.S.2d 388; Schaefer v. Schwartz, 226 A.D.2d 619, 641 N.Y.S.2d 138). Moreover, the appellant moved promptly to change venue after ascertaining the plaintiff's true residence ( see 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, that branch of the appellant's motion which was to change the venue of the action from Kings County to Oneida County pursuant to CPLR 510(1) should have been granted.