Opinion
INDEX NO. 155815/14
02-03-2015
MICHAEL A. BRION, individually and as the assignee of the ESTATE OF MIGUEL BRION and BASONAS CONSTRUCTION CORP., Plaintiffs, v. JORGE W. MOREIRA and MOREIRA and MOREIRA AND ASSOCIATES, PLLC, Defendants.
NYSCEF DOC. NO. 44 PRESENT: DONNA M. MILLSJustice MOTION DATE___ MOTION SEQ. NO. 001 MOTION CAL NO.___ The following papers, numbered 1 to ___ were read on this motion __________.
PAPERS NUMBERED | |
Notice of Motion/Order to Show Cause-Affidavits- Exhibits | 1 |
Answering Affidavits- Exhibits | 2, 3 |
Replying Affidavits | 4 |
CROSS-MOTION: ___ YES v NO
Upon the foregoing papers, it is ordered that this motion to change venue, and/or dismissing the complaint as against the defendants, is decided as follows:
In this legal malpractice action, plaintiffs Michael A. Brion, individually and as the assignee of the Estate of Miguel Brion and Basonas Construction Corp. commenced this action against defendants Jorge W. Moreira ("hereinafter "Moreira") and Moreira and Associates, PLLC ("Moreira PLLC"). In the Complaint, plaintiff alleges that Moreira failed to create documents and to memorialize an alleged agreement between Michael Brion and his late father Miguel Brion whereby Miguel would, in exchange of a payment of $10,000 a month for life, transfer his company shares to Michael. Plaintiff, Michael Brion further alleges that he retained Moreira to effectuate and to memorialize that agreement and also to revoke his father's 2010 will to reinstate his previous 2004 will, which left the company to plaintiff.
In the Complaint, plaintiffs designated New York County as the venue for this action based on the principal place of business of Moreira PLLC. Defendants claim that Moreira PLLC's principal place of business was located in New York County but at the time of commencng this action, it had moved to, and is currently located in Queens County. Therefore, defendants contend that the venue of this action should be changed to Queens County.
CPLR § 510(1) provides for a change of venue when the county designated is improper. A defendant seeking to challenge the chosen venue on grounds that said venue is improper must first comply with the requisites of CPLR § 511, which requires that a demand to change venue be interposed with or prior to the service of an answer. Jason v. Dumel, 3 Misc.3d 1101(a) (Supreme Court, Kings County 2004). Thereafter, pursuant to CPLR § 511, plaintiff must either agree to change the venue or interpose an affidavit indicating why the venue chosen is proper and why the proposed venue is improper. An action brought in the wrong county requires a venue change as a matter of right. Id. However, before such relief can be had, defendant is required, as mentioned above, to comply with CPLR § 511. Id. When a defendant makes a motion seeking to change the venue pursuant to CPLR § 510(1), the court must first determine, given the type of action, what venue provision governs and what constitutes proper venue. Uruchima v. Burns, 6 Misc.3d 1022(A) (Supreme Court, Kings County 2005). Thereafter, it is defendant's burden to establish that given the type of action, the venue chosen was improper. Id. Plaintiff must demonstrate that the venue chosen was proper. Id. A plaintiff forfeits the right to select the venue in an action if said plaintiff chooses an improper venue in the first instance. Kelson v. Nedicks Stores, Inc., 104 A.D.2d 315, 478 N.Y.S.2d 648 (1st Dept. 1984).
Here, plaintiffs rely on defendant Moreira PLLC's Articles of Organization that were filed with the New York Secretary of State on August 23, 2005 which designated New York County as is principal office. Additionally, a computer printout, dated May 21, 2014 from the New York State Department of State's website also confirms that Moreira's principal place of business is New York County. The law is clear that the sole residence of a limited liability company for venue purposes is the county where its principal office is located as designated in its articles of organization (see CPLR 503 [c]; Limited Liability Company Law §§ 102 [s]; 203 [e] [2]; Graziuso v 2060 Hylan Blvd. Rest. Corp., 300 AD2d 627, 628 [2002]; see also Milom v Marble Hall Apts., Inc., 37 AD3d 672 [2007]; Hamilton v Corona Ready Mix, Inc., 21 AD3d 448, 449 [2005]). Such office need not be a place where business activities are conducted by the limited liability company (see Limited Liability Company Law § 102 [s]). Since the defendants failed to establish that the county designated by the plaintiffs in the first instance was improper, its motion to change the venue of the action from New York County to Queens County shall be denied.
Defendants seek to dismiss the complaint for failure to state a cause of action pursuant to CPLR 3211(a)(7), and based on documentary evidence pursuan to CPLR 3211(a)(1). On a motion pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action, the court must accept the facts alleged in the pleading as true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory ( see Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d at 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190; Leon v. Martinez, 84 N.Y.2d 83, 87, 614 N.Y.S.2d 972, 638 N.E.2d 511). "To state a cause of action to recover damages for legal malpractice, a plaintiff must allege: (1) that the attorney 'failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession;' and (2) that the attorney's breach of the duty proximately caused the plaintiff actual and ascertainable damages" ( Dempster v. Liotti, 86 A.D.3d 169, 176, 924 N.Y.S.2d 484, quoting Leder v. Spiegel, 9 N.Y.3d 836, 837, 840 N.Y.S.2d 888, 872 N.E.2d 1194, cert. denied sub nom. Spiegel v. Rowland, 552 U.S. 1257, 128 S.Ct. 1696, 170 L.Ed.2d 354).
Accepting the facts alleged in the complaint as true, and according the plaintiff the benefit of every possible inference, the complaint states a legally cognizable cause of action sounding in legal malpractice ( see Guayara v. Harry I. Katz, P.C., 83 A.D.3d 661, 920 N.Y.S.2d 401).
Moreover, the documentary evidence relied upon by defendants, do not utterly refute the plaintiffs' factual allegations and do not conclusively establish a defense to the legal malpractice cause of action as a matter of law.
The Court has considered defendants' remaining contentions and find them unavailing. Accordingly, it is
ORDERED that the defendants' motion is denied in its entirety; and it is further
ORDERED that the defendants are directed to serve an answer to the complaint within 20 days after service of a copy of this order with notice of entry; and it is further
ORDERED that counsel are directed to appear for a preliminary conference in Room 574, 111 Centre Street, on March 13, 2015, at 10:00 AM. Dated:2-3-15
/s/_________
J.S.C.
Check one: ___ FINAL DISPOSITION v NON-FINAL DISPOSITION