Opinion
2013-04-25
Jessica BOOK, Plaintiff–Respondent, v. HORIZON ASSET MANAGEMENT, et al., Defendants–Appellants, Mark Wszolek, Defendant. Jessica Book, Plaintiff–Appellant, v. Horizon Asset Management, et al., Defendants, Mark Wszolek, Defendant–Respondent.
Whiteman Osterman & Hanna LLP, Albany (Robert T. Schofield of counsel), for Horizon Asset Management and Linda Collins, appellants. Norman A. Olch, New York, for Jessica Book, appellant/respondent.
Whiteman Osterman & Hanna LLP, Albany (Robert T. Schofield of counsel), for Horizon Asset Management and Linda Collins, appellants. Norman A. Olch, New York, for Jessica Book, appellant/respondent.
Kaufman Borgeest & Ryan LLP, New York (Joan M. Gilbride of counsel), for Mark Wszolek, respondent.
ANDRIAS, J.P., SAXE, DeGRASSE, RICHTER, GISCHE, JJ.
Order, Supreme Court, New York County (Anil C. Singh, J.), entered December 22, 2011, which, in this action alleging, among other things, discrimination, denied the motion of defendants Horizon Asset Management and Linda Collins (the Horizon defendants) to change venue from Bronx County to New York County, unanimouslyreversed, on the law, without costs, and the motion granted. Appeal from order, Supreme Court, Bronx County (Julia Rodriguez, J.), entered June 18, 2012, which granted defendant Mark Wszolek's motion to change venue from Bronx County to New York County, unanimously dismissed, without costs, as academic.
The untimeliness of the Horizon defendants' motion to change venue is excusable because plaintiff's counsel and pleadings misleadingly indicated that she resided in Bronx County ( see Mann v. Janyear Trading Corp., 83 A.D.3d 566, 922 N.Y.S.2d 303 [1st Dept. 2011] ). Furthermore, the record shows that the Horizon defendants promptly moved to change venue after receiving medical records indicating that plaintiff's statements were misleading ( see id.).
The Horizon defendants' motion should have been granted on the merits. Defendants met their initial burden of showing that the venue chosen by plaintiff was improper, by submitting evidenceshowing that she was residing in North Carolina at the time she commenced this action and had never previously lived in Bronx County ( see Castro v. New York Hosp. Med. Ctr. of Queens, 52 A.D.3d 251, 251–252, 859 N.Y.S.2d 638 [1st Dept. 2008] ). In opposition, plaintiff failed to submit documentary evidence demonstrating her residence in Bronx County ( id. at 252, 859 N.Y.S.2d 638). Indeed, she provided only a self-serving and conclusory affidavit stating that she moved into her sister's apartment in the Bronx on an unspecified date in January 2011, the month she filed this action ( see Rivera v. Jensen, 307 A.D.2d 229, 230, 762 N.Y.S.2d 387 [1st Dept. 2003]; Martinez v. Semicevic, 178 A.D.2d 228, 229, 576 N.Y.S.2d 874 [1st Dept. 1991] ). This was insufficient to satisfy her burden to “establish a bona fide intent to retain Bronx County as a residence for some length of time and with some degree of permanency” ( Gladstone v. Syvertson, 186 A.D.2d 400, 401, 588 N.Y.S.2d 283 [1st Dept. 1992] [internal quotation marks and brackets omitted] ).
Given the foregoing determination, plaintiff's appeal, on the basis of law of the case, from from the order entered June 18, 2012, which granted defendant Wszolek's motion to change venue from Bronx County to New York County, is academic.