Opinion
300876/09.
Decided April 8, 2010.
LAW OFFICES OF THOMAS K. MOORE, By: Brian J. Powers, Esq., Attorney for Defendants, MAHENDRABHAI DESHI ANKIT and GELCO CORP. White Plains, New York.
HARMON, LINDER ROGOWSKY ESQS., By: Mark J. Linder, Esq. Attorney for Plaintiff, New York, New York.
As per the Court's Decision/Order of August 28, 2009, a hearing on Defendants' MAHENDRABHAI DESHI ANKIT and GELCO CORP. motion to change venue of this action from Bronx County to Richmond County pursuant to CPLR § 510(1) was held on November 23, 2009. Both parties chose not to present additional evidence or testimony at the hearing, however, and requested that the Court decide the application based on the submitted motion papers. Defendants were content to rely on the Richmond County address taken from Plaintiff's driver's license and listed in the relevant police report in support of their motion. And Plaintiff chose to rely on the cable installation statement dated May 16, 2008, bearing his name and the Bronx County address upon which he based venue for this action in opposition. The Court finds that, standing alone, Plaintiff's cable installation statement is insufficient to establish that Plaintiff was a Bronx County resident when this lawsuit was commenced.
Background
Plaintiff is suing for personal injuries allegedly sustained in a motor vehicle accident involving Defendants while on the Grand Central Parkway, Queens, New York, on September 21, 2008. The police report regarding this accident lists Plaintiff's address as 338 Bradley Ave., Staten Island, NY 10314, which is located in Richmond County. As such, Defendants sought to change venue to that county on the grounds that Plaintiff improperly based venue for this lawsuit in the Bronx. Plaintiff proffered a cable installation bill dated May 16, 2008, bearing Plaintiff's name and a Bronx address in opposition to Defendant's application.
The Court ordered a hearing to resolve this dispute, since Defendants presented evidence that venue in this matter was improperly placed in the Bronx, see Garced v. Clinton Arms Assoc. , 58 AD3d 506 , 509 (holding that "a defendant's burden on an application to change venue is limited to establishing that the designated county is improper; the movant is not obliged to offer proof of the plaintiff's actual abode"), and Plaintiff presented evidence that he may have resided in the Bronx when this action was commenced, see Rivera v. Jensen, 307 AD2d 229, 230 (holding that "[w]here resolution of such a factual issue ultimately depends on evaluating the credibility of the affiants, a hearing should be held to resolve any inconsistencies").
In preparation for the hearing, Defendants served a judicial subpoena duces tecum on Plaintiff on or about September 28, 2009, requesting: Plaintiff's original New York State driver's license in effect on February 2, 2009; Plaintiff's original New York State vehicle registration for a 1996 Toyota, license plate EDF 8033, in effect on February 2, 2009; a copy of Plaintiff's W-2 and 1099 statements for the year 2008; a copy of Plaintiff's Federal and New York State tax returns for the year 2008; a copy of any of Plaintiff's voter registration confirmations from the Board of Elections from July, 2008 to date; a copy of any lease agreements in effect on February 2, 2009, showing Plaintiff's residence; and a copy of any application for No-Fault benefits in connection with the claimed accident here, now in Plaintiff's custody or control. Neither party proffered any of these sought after items at the hearing.
Venue
"Except where otherwise prescribed by law, the place of trial shall be in the county in which one of the parties resided when it was commenced; or, if none of the parties then resided in the state, in any county designated by the plaintiff." CPLR § 503(a). Consequently, residency on the date the action was commenced controls for purposes of venue. Fortune v. Palomino, 287 AD2d 361. "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 § 510(1). There were no issues raised regarding the timeliness of Defendants' motion pursuant to CPLR § 511(a).
Residency/Permanence
"For venue purposes, a residence is where a party stays for some time with the bona fide intent to retain the place as a residence for some length of time and with some degree of permanency." Sibrizzi v. Mt. Tom Day School, 155 AD2d 337. Indeed,
[t]he residence of the plaintiff in the first instance is a matter of fact, of which intention is a part. And while such residence must be characterized by an element of permanency, it does not necessarily contemplate a permanent home, or domicile. In a degree, the word "residence" continues the meaning of its derivation, the Latin word resido, to sit down, to stay in a place, to settle, to remain; but for the purposes of this motion, however, it does not involve the intention never to leave the place where one settles. And the rule of practice determining the place of trial carries through the same general notion, a place where one abides with the intention of remaining; but not necessarily a continuous, final and ultimate abode. Neither does it mean an exclusive settlement.
Hurley v. Union Trust Co., 244 A.D. 590, 593.
Therefore, documentary evidence showing a party's alleged intent to remain permanently should be presented as the basis for one's choice of venue. See 3-503 New York Civil Practice: CPLR § 503.2. Permanence bespeaks bona fide residency — as opposed to residency fixed solely for the sake of forum shopping — and is determined by the totality of the circumstances. See Turner v. Turner, 84 Misc 2d 229, 230 (stating that "[a] temporary residence for the sole purpose of obtaining an advantageous venue for a lawsuit should not be considered a residence as the basis of proper venue"). Hence, Courts have found that permanency may be established by: leases, rent receipts, insurance policies, tax returns, automobile registrations and driver's licenses, see Gladstone v. Syvertson, 186 AD2d 400; rental agreements and driver's license renewal applications, see Davis v. ELRAC, 272 AD2d 504; phone bills and bank statements, see Johnson v. Gioia , 38 AD3d 845 ; employment records, and even library cards, see Siegfried v. Siegfried, 92 AD2d 916. Courts also accept affidavits, but only when accompanied by some form of the aforementioned documentary evidence. See McKenzie v. MAJ Transit, 204 AD2d 154; see also Martinez v. Semicevic, 178 AD2d 228 (discounting Plaintiff's affidavit because it was "entirely unsupported by documentary evidence, such as a driver's license, voter's registration card or utility bill").
See Black's Law Dictionary (7th ed 1999), at 168 (defining "bona fide" as "1. Made in good faith; without fraud or deceit. 2. Sincere; genuine.
The Court finds that Defendants have sufficiently challenged Plaintiff's venue selection based on the address gleaned from his driver's license and provided in the police accident report. See, e.g., Furth v. ELRAC, Inc. , 11 AD3d 509 ; Falk v. Inzinna, 288 AD2d 340; Samuel v. Green, 276 AD2d 687. On the other hand, the Court finds that the cable installation bill proffered by Plaintiff is, standing alone, insufficient to show that Plaintiff intended to permanently dwell at the Bronx address listed on the bill, such to claim it as his legitimate residence for venue purposes.
Taking all circumstances into consideration, the Court finds it peculiar that Plaintiff declined to provide an Affidavit in addition to — and in support of — his proffered documentary evidence, as well as to testify in open court under oath regarding the permanency of his purported Bronx residency. See Jensen, 307 AD2d at 229-30 (holding that "if no controverting affidavit is submitted or if there is an absence of evidence to demonstrate an intent to reside with some degree of permanency' the motion court should change the venue") (citations omitted).
Accordingly, Defendants have shown that none of the parties to this action resided in Bronx County when the action was commenced, see CPLR § 503(a), thus, Bronx County is an improper venue for this action, see Person-Aaron v. O'Connor, 167 AD2d 167; see also Kelson v. Nedicks Stores Inc., 104 AD2d 315, 316 (holding that a "plaintiff will forfeit the right to select the place of venue by choosing an improper venue in the first instance"). Defendants have also shown that Plaintiff resided in Richmond County at the time that this action was commenced. Ergo, that is the proper venue for this matter.
Defendants are directed to serve a copy of this Order with Notice of Entry upon all parties to this action and upon the Record Room Clerk of the Supreme Court, Bronx County.
The Record Room Clerk is directed to transfer the entire file index number 300876/09 to the Record Room of the Supreme Court, Richmond County.
The foregoing shall constitute the decision and order of this Court.