Opinion
2013-01-16
Calman GREENBERG, etc., appellant, v. GRACE PLAZA NURSING & REHABILITATION CENTER, et al., defendants, Myles E. Gombert, etc., respondent.
Calman Greenberg, Bronx, N.Y., appellant pro se. Santangelo, Benvenuto & Slattery, Roslyn, N.Y. (James W. Tuffin of counsel), for respondent.
Calman Greenberg, Bronx, N.Y., appellant pro se. Santangelo, Benvenuto & Slattery, Roslyn, N.Y. (James W. Tuffin of counsel), for respondent.
In an action to recover damages, inter alia, for medical malpractice and wrongful death, the plaintiff appeals from an order of the Supreme Court, Queens County (O'Donoghue, J.), entered September 6, 2011, which granted the motion of the defendant Myles E. Gombert pursuant to CPLR 510(1) to change the venue of the action from Queens County to Nassau County.
ORDERED that the order is affirmed, with costs.
The plaintiff, who represents the estate of Ruth Greenberg (hereinafter the decedent), designated Queens County as the venue of this action based upon the residence of the decedent. The defendant Myles E. Gombert (hereinafter the respondent) first demanded and then moved for a change of venue to Nassau County on the ground that venue was improperly based on the decedent's residence and upon a showing that none of the parties resided in Queens County when the action was commenced ( see CPLR 503[a]; 510, 511; Ramos v. Cooper Tire & Rubber Co., 62 A.D.3d 773, 877 N.Y.S.2d 908;Galan v. Delacruz, 4 A.D.3d 449, 771 N.Y.S.2d 696;Daly v. Weintraub, 282 A.D.2d 643, 723 N.Y.S.2d 710;Bailon v. Avis Rent A Car, 270 A.D.2d 439, 705 N.Y.S.2d 607). After the respondent moved for a change of venue, the plaintiff, a resident of New Jersey, obtained letters of limited administration from the Queens County Surrogate's Court. In opposition to the motion, the plaintiff contended that because he was appointed in Queens County, the venue of the action should be Queens County. The plaintiff, however, cannot be deemed a resident of Queens County based on his appointment in that county ( cf. CPLR 503[b] ), since that appointment occurred after the action was commenced ( see Crew v. St. Joseph's Med. Ctr., 19 A.D.3d 205, 206, 799 N.Y.S.2d 16;Matter of Estate of Morgana v. Staten Is. Hotel, 32 Misc.3d 1229[A], 2011 N.Y. Slip Op. 51496[U], 2011 WL 3477075 ). Contrary to the plaintiff's contention, the Supreme Court properly considered the arguments made by the respondent in his reply papers, which addressed the evidence and arguments presented by the plaintiff in opposition ( see Vera v. Soohoo, 99 A.D.3d 990, 953 N.Y.S.2d 615;Lebar Constr. Corp. v. HRH Constr. Corp., 292 A.D.2d 506, 507, 739 N.Y.S.2d 294;Ticor Title Guar. Co. v. Bajraktari, 261 A.D.2d 156, 689 N.Y.S.2d 95;cf. Matter of Harleysville Ins. Co. v. Rosario, 17 A.D.3d 677, 677–678, 792 N.Y.S.2d 912). The plaintiff's remaining contentions are without merit.
Accordingly, in the absence of any evidence sufficient to establish a basis to retain venue in Queens County or to show that Nassau County was not a proper venue, the Supreme Court properly granted the respondent's motion to change the venue of the action from Queens County to Nassau County ( see Lopez v. K Angle K, Inc., 24 A.D.3d 422, 423, 806 N.Y.S.2d 216;Daly v. Weintraub, 282 A.D.2d 643, 723 N.Y.S.2d 710).