Opinion
524330/2019
10-28-2020
Estelle MILLER, Plaintiff, v. Herrick WUN, M.D., the New York and Presbyterian Hospital, John Baber, M.D., Lori Rubin, M.D., Liang Shen, M.D., Bhavan Shah, M.D., Siyao Liu, M.D., Caitlin Moran, R.N., Doe Cherry, M.D., Drake Lebrun, M.D., Santosh Murthy, M.D., Lama Obeid, M.D., and Jared Knopman, M.D., Defendants.
Plaintiff is represented by Jordan K. Merson, Esq. of Merson Law, PLLC Defendants are represented by Michelle J. Nam, Esq. of McAloon & Friedman, P.C.
Plaintiff is represented by Jordan K. Merson, Esq. of Merson Law, PLLC
Defendants are represented by Michelle J. Nam, Esq. of McAloon & Friedman, P.C.
Genine D. Edwards, J.
Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:
PapersNumbered
Notice of Motion and Affirmation in Support 1
Affirmation in Support 2
Affirmation in Reply 3
In this medical malpractice action, defendants move, in motion sequence No.1, pursuant to CPLR 510 and 511, to change the venue of this case from Kings County to New York County.
"In order to prevail on a motion to change venue pursuant to CPLR 510(1), a defendant must show that the plaintiff's choice of venue is improper, and also that the defendant's choice of venue is proper." Vereen v. Flood , 184 AD3d 758, 124 N.Y.S.3d 219 (2d Dept. 2020). "Only if a defendant meets this burden is the plaintiff required to establish, in opposition, that the venue selected was proper." Id. In the context of determining the proper venue of an action, a party may have more than one residence. See Pomerantsev v. Kodinsky , 156 AD3d 655, 64 N.Y.S.3d 571 (2d Dept. 2017) ; Johnson v. Finkelstein , 145 AD3d 863, 43 N.Y.S.3d 479 (2d Dept. 2016).
Here, in support of their contention that plaintiff was not a resident of Kings County when she commenced this action, movants submitted, inter alia , a notice to admit and plaintiff's medical records. The medical records, dated March 7, 2019, list a New York County apartment as the plaintiff's address. Additionally, the Notice to Admit, states that plaintiff resided in New York County on March 7, 2019 and November 6, 2019. Inasmuch as plaintiff failed to timely respond to the notice to admit, the contents were deemed admitted. See CPLR 3123(a) ; 32nd Ave. LLC v. Angelo Holding Corp. , 134 AD3d 696, 20 N.Y.S.3d 420 (2d Dept. 2015). Moreover, the notice to admit was proper since it did not compel admission of fundamental and material issues or contested ultimate facts. See 32nd Ave. LLC , 134 AD3d 696 ; Luthman v. Gulino , 131 AD3d 636, 15 N.Y.S.3d 422 (2d Dept. 2015) ; Lolly v. Brookdale Univ. Hosp. & Med. Ctr. , 45 AD3d 537, 844 N.Y.S.2d 718 (2d Dept. 2007). Nonetheless, taken together, defendant's evidence failed to demonstrate that plaintiff did not maintain a residence in Kings County when this action commenced on November 6, 2019; rather, the evidence shows that plaintiff also lived in New York County. See Johnson , 145 AD3d 863 ; Pomerantsev , 156 AD3d 655 ; Deas v. Ahmed , 120 AD3d 750, 991 N.Y.S.2d 661 (2d Dept. 2014) ; Chenab v. Roitman , 120 AD3d 736, 992 N.Y.S.2d 74 (2d Dept. 2014). As such, movants' evidence was insufficient to establish that plaintiff was not a resident of Kings County at the time of the commencement of this action. Consequently, the burden never shifted to plaintiff to demonstrate that she was, in fact, a resident of Kings County at the time of commencement. See Pomerantsev , 156 AD3d 655.
Accordingly, defendants' motion is denied.
This constitutes the Decision/Order of this Court.