Opinion
3387/2013
04-20-2015
Bjorg Jakobsdottir, Plaintiff, v. The Argo Corporation, MARTINIQUE REALTY ASSOCIATES, and MARTINIQUE TWELVE KEW GARDENS CORP., Defendants.
The following papers numbered 1 to 14 were read on this motion by defendants, THE ARGO CORPORATION and MARTINIQUE REALTY ASSOCIATES, for an order pursuant to CPLR 510(1), changing the venue of this matter from the County of Queens to New York County on the ground that plaintiff designated an improper county for trial:
Papers
Numbered
Notice of Motion-Affidavits-Exhibits.................1 - 5
Affirmation in Opposition............................6 - 10
Reply Affirmation...................................11 - 14
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In this negligence action, the plaintiff, sues to recover damages for personal injuries she allegedly sustained on March 8, 2010, when she tripped while exiting the elevator at 137-21 83rd Avenue, Briarwood, Queens County, New York. It is alleged that when the elevator stopped on the third floor it was not level with the building floor. Plaintiff alleges that the elevator was defective and that the defendants were negligent in the ownership, management, operation, maintenance, cleaning, inspection, control, and repair of the elevator at the premises. As a result of the accident the plaintiff allegedly sustained a displaced fracture of the left ankle.
The plaintiff commenced this action by filing a summons and complaint in Queens County on February 21, 2013. The summons and complaint, verified by counsel, asserts that venue in Queens County is based upon the residence of plaintiff, Bjorg Jakobsdottir, and lists plaintiff's address as 137-21 83rd Avenue No.3R, Briarwood, New York. Issue was joined by service of the answer of The Argo Corporation and Martinique Realty Associates dated June 5, 2013. Defendant Martinique Twelve Kew Gardens Corp. has not answered and is in default.
In her bill of particulars and supplemental bill of particulars, both verified by plaintiff's counsel, it is asserted that the plaintiff resided at 137-21 83rd Avenue Apt. #3R Briarwood, New York. In addition, by letter dated June 13, 2013, plaintiff's counsel, Jeremy S. Ribakove, Esq., states that "upon information and belief the plaintiff maintains a residence in Queens County but also is often in her native Iceland." In a supplemental bill of particulars the plaintiff's counsel represented that the plaintiff lived at the Queens address on the date of the accident, on July 2011, and on February 21, 2013, the date the plaintiff commenced the instant action.
By decision and order dated October 15, 2014, this Court granted the defendants' motion for an order vacating the plaintiff's Note of Issue on the ground that the case was not ready for trial and depositions and IMEs had not been completed at the time the Note of Issue was filed.
At her examination before trial, which took place on January 16, 2015, the plaintiff, age 62, gave her address as an apartment in Reykjavik, Iceland. She stated that she has lived at that address since 2004. She stated that she lived at 137-35 83rd Avenue in Briarwood prior to 2004. At the time of the accident she was in the United States visiting a friend. She testified that she intended on staying two weeks with her. The accident occurred on the first day she was in New York. She only stayed in Briarwood for one night following the accident. She stayed with a friend in Manhattan for three months following the accident while she recuperated. She stated that prior to her accident she had not been in the building since September 3, 2009 when she previously came for a visit. She stated that she tripped while exiting the elevator because it had stopped 5 to 7 inches below the third floor landing.
Plaintiff now moves, two weeks following the plaintiff's deposition, for an order changing venue to New York County. Defendants assert that venue was improperly placed in Queens County because the plaintiff, according to her deposition testimony, did not reside in Queens County and, in fact, was a resident of Iceland at the time of the accident and at the time the action was commenced. She testified that she was only visiting Queens County when the accident occurred and had not lived in Queens County since 2004. Therefore, the defendants assert that the statements in the plaintiff's summons, complaint, bill of particulars and supplemental bill of particulars to the effect that the plaintiff was a resident of Queens County are all incorrect in the statement of the plaintiff's residence. Further, counsel asserts that both defendants Argo and Martinique Realty are residents of New York County pursuant to their respective filings with the New York Department of State. Therefore, counsel asserts that neither the plaintiff nor the defendants were residents of Queens County when this action was commenced, and as such, it is asserted that venue cannot properly lie in Queens County and should be transferred to New York County the residence of Argo and Martinique Realty. Defendant Martinique Twelve Kew Gardens Corp., who has not appeared in this action, was also resident of New York County pursuant to filings with the New York Department of State.
Plaintiff opposes the motion on the ground that the defendants did not assert venue as an affirmative defense in its answer, did not serve a demand to change venue, failed to make an investigation of the plaintiff's actual residence, failed to move to change venue with due diligence and failed to provide sufficient evidence in evidentiary form to demonstrate that venue was incorrect. Counsel for plaintiff, Jeremy S. Ribakove, Esq., states that his law firm chose Queens County as the place of trial based upon an honest and reasonable belief from their review of the file and communications with their client that she was residing in the County of Queens when the action was commenced. Counsel also states that there has been difficulty communicating with his client as she lives in Iceland. Counsel also asserts that since the accident took place in Queens County, both attorneys offices are in Queens County, and witnesses are more likely to be based in Queens County, there are no factors that make a trial in Queens County a hardship. Counsel also states that if defendant had made the request to change venue prior to filing the Note of Issue they would have been more amenable to the request to change venue, however, since discovery is nearly complete counsel asserts that there is no reason to change venue at this time. Plaintiff also asserts that the transcript of the plaintiff's examination before trial is not in admissible form.
In reply the defendants submit a transcript of the plaintiff's deposition testimony signed and certified by the Court reporter. In addition, defendants assert that they could not have asserted improper venue as an affirmative defense in their answer and could not have served a demand to change venue with their answer pursuant to CPLR 511 as they did not learn of the plaintiff's correct address until she testified at her examination before trial in January 2015. Further, defendants assert that they moved to change venue within two weeks of learning that the plaintiff's address had been misrepresented by the plaintiff in her verified summons, complaint and bill of particulars (citing Philogene v Fuller Auto Leasing, 167 AD2d 178 [1st Dept. 1990][noncompliance with the statutory time requirements should not act as a bar where a plaintiff's willful omissions and misleading statements regarding residence are the cause of such noncompliance and the defendant moves promptly after ascertaining the true state of affairs]).
CPLR 510(1) states that 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 503(a) indicates that the place of trial shall be in the county in which one of the parties resided when the action was commenced. According to CPLR 510(1), a county is an improper venue if neither party resides there (see Person-Aaron v O 'Connor, 167 AD2d 167[1st Dept. 1990]; Llorca v Manzo, 254 AD2d 396 [2d Dept. 1998]). Where defendant has observed all procedural requisites, and the court sustains the contentions that the plaintiff's designated county was not proper and that the defendant's counter-designation was proper, defendant is entitled to a change of venue to its chosen county (see CPLR 511[b]; Gonzalez v Sun Moon Enters. Corp., 53 AD3d 526 [2d Dept. 2008]; Agway, Inc. v Kervin, 188 AD2d 1076[4th Dept. 1992]; Nixon v Federated Dep't Stores, 170 AD2d 659 [2d Dept. 1991]).
Pursuant to CPLR 503[c], the sole residence of a domestic or foreign corporation is the county in which its principal office is located, as designated in its application for authority to conduct business filed with the State of New York (see Myoung Hee Yi v Meitetsu Express, 78 AD3d 914 [2d Dept. 2010]; Carey v Anheuser-Busch, Inc., 63 AD3d 1094 [2d Dept. 2009]; Ashjian v Orion Power Holdings, Inc., 9 AD3d 440 [2d Dept. 2004]; Bailon v Avis Rent a Car, Inc., 270 AD2d 439 [2d Dept. 2000]; Graziuso v. 2060 Hylan Blvd. Rest. Corp., 300 AD2d 62 [2d Dept. 2002][it is well settled that the sole residence of a domestic corporation for venue purposes is the county designated in its certificate of incorporation, despite its maintenance of an office or facility in another county]; also see Altidort v Louis, 287 AD2d 669 [2d Dept. 2001]).
In the present action, there is no dispute that plaintiff resided in Iceland at the time of her accident and at the time the action was commenced. The plaintiff clearly testified that when her accident occurred she was in Queens County for a brief vacation during which she was going to stay with her friend in Queens County. Defendants have also presented unrefuted evidence that the principal office of defendants The Argo Corporation and Martinique Realty Associates, as designated in the filing with the Department of State, is New York County.
Upon review and consideration of the defendants' motion, plaintiff's affirmation in opposition and defendants' reply thereto, this court finds that the plaintiff's designation of Queens County was improper because plaintiff did not reside in Queens County at the time the action was commenced. As defendants were residents of New York County when the action was commenced, pursuant to CPLR 510(1) the defendants are entitled to a change of venue to New York County as of right (see Lopez v K Angle K, Inc., 24 AD3d 422 [2d Dept. 2005]). By improperly commencing the action in Queens County, the plaintiff forfeited the right to select venue (see Ruiz v Lazala, 26 AD3d 366 [2d Dept. 2006]).
In addition, although the defendants did not assert improper venue prior to making the instant motion, it was only because of the misrepresentations of the plaintiff's counsel that the plaintiff was a resident of Queens County that the defendants could not move to change venue at an earlier time. The defendants moved as expeditiously as possible after they learned at the plaintiffs deposition that she in fact had not resided Queens County since 2004. The defendants moved promptly to change venue after ascertaining the plaintiff's true residence (see Carobert v Baldor Elec. Co., 102 AD3d 905 [2d Dept. 2013]; Forbes v Rubinovich, 94 AD3d 809 [2d Dept. 2013]; Brash v Richards, 87 AD3d 556 [2d Dept. 2011]; Mann v Janyear Trading Corp., 83 AD3d 566 [2d Dept. 2011][the untimeliness of defendants' demand for a change of venue and the subsequent motion is excusable because the summons, complaint, and bill of particulars misleadingly indicated that plaintiff resided in a county where he did not reside]).
The contention of plaintiff raised in opposition to the motion that the deposition transcript of the plaintiff is not in evidentiary form is without merit. Although the deposition is unsigned, the transcript has been certified by the court reporter and the plaintiff did not raise any challenges to its accuracy. Thus, the transcript qualified as admissible evidence for purposes of the motion (see Rodriguez v Ryder Truck, Inc., 91 AD3d 935 [2d Dept. 2012]; Zalot v Zieba, 81 AD3d 935 [2d Dept. 2011]).
The plaintiff has failed to show that venue should be retained in Queens Count. Plaintiff has not provided sufficient evidence to demonstrate that the convenience of a material witness and the interests of justice require the matter to remain in Queens County. Further the note of issue was vacated by this court on October 15, 2014 and the matter has not been scheduled for trial at this time.
Accordingly, based upon the foregoing, it is hereby,
ORDERED, that the motion by defendants THE ARGO CORPORATION and MARTINIQUE REALTY ASSOCIATES, for an order changing venue from Queens County to New York County pursuant to CPLR 510 is granted, and it is further,
ORDERED, that upon service of a copy of this order with notice of entry and payment of any requisite fees by movant, the Clerk of the Supreme Court, Queens County shall transfer all papers on file in this action to the Clerk of the Supreme Court, New York County, and it is further,
ORDERED that the defendants' application for costs and sanctions pursuant to 22 NYCRR §§ 130-1.1 and 130-1.2, based upon frivolous conduct, is denied.
Dated: April 20, 2015
Long Island City, NY
_________________________
ROBERT J. MCDONALD
J.S.C.