Opinion
2021-06028 Index 21847/19E
11-04-2021
Audrey A. Appleyard, Plaintiff-Respondent, v. First Prestige Properties, Inc., et al., Defendants-Appellants, Subway Store # 48744, et al., Defendants. Appeal No. 14527 Case No. 2021-00159
Methfessel & Werbel, New York (Fredric P. Gallin of counsel), for appellants. Shapiro Law Offices, PLLC, Bronx (Ernest S. Buonocore of counsel), for respondent.
Methfessel & Werbel, New York (Fredric P. Gallin of counsel), for appellants.
Shapiro Law Offices, PLLC, Bronx (Ernest S. Buonocore of counsel), for respondent.
Before: Gische, J.P., Mazzarelli, Shulman, Pitt, Higgitt, JJ.
Order, Supreme Court, Bronx County (Robert T. Johnson, J.), entered December 22, 2020, which, following a hearing, denied defendants-appellants' motion to change venue from Bronx County to Orange County, New York, unanimously reversed, on the law, without costs, and the motion granted.
Defendants met their burden of showing that plaintiff was not a Bronx County resident when she commenced this action (see CPLR 503[a]) by submitting her driver's license issued in 2017, a disability application from 2018, and an accident claim report from 2019, all showing that plaintiff lived in Milton, New York (see Book v Horizon Asset Mgt., 105 A.D.3d 661 [1st Dept 2013]; see also Furlow v Braeubrun, 259 A.D.2d 417 [1st Dept 1999]).
Plaintiff failed to rebut defendants' showing. She did not submit any evidence of her residency in Bronx County at the time she commenced this action. Plaintiff testified that she had not worked in Bronx County since 2014 and that she most recently applied for a job at Hudson Home Care Agency using her Milton, New York address. Other than a magazine cover, the documentary evidence submitted by plaintiff pre-dates the commencement of this action by several years (see Hernandez v Seminatore, 48 A.D.3d 260 [1st Dept 2008]). Furthermore, the magazine cover addressed to her purported Bronx County home is irrelevant because it was acquired after the commencement of the action (Santulli v Santulli, 228 A.D.2d 247, 248 [1st Dept 1996]).