Opinion
No. 2006-09878.
February 6, 2007.
In an action to recover damages for personal injuries, the defendant Otis Elevator Company appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Harkavy, J.), dated September 13, 2006, as denied its motion to change venue from Kings County to Westchester County.
Geringer Dolan, LLP, New York, N.Y. (John A. McCarthy of counsel), for appellant.
Huttner, Berson Budashewitz, P.C., New York, N.Y. (Jeffrey A. Berson of counsel), for respondent.
WILLIAM F. MASTRO, J.P., DAVID S. RITTER, PETER B. SKELOS, EDWARD D. CARNI, WILLIAM E. McCARTHY, JJ.
Before: Mastro, J.P., Ritter, Skelos, Carni and McCarthy, JJ.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the matter is remitted to th e Supreme Court, Kings County, for a hearing in accordance herewith, and thereafter for a new determination of the motion.
The plaintiff selected Kings County as the venue of this action based upon his purported residence ( see CPLR 503 [a]). The appellant moved to change venue ( see CPLR 511), presenting evidence that the plaintiff resided in Nassau County when he commenced the action. The plaintiff's opposition papers raised an issue of fact as to whether he resided in Kings County or Nassau County at the time of commencement of this action. Since the issue of fact could not properly have been resolved on the papers alone, the Supreme Court should have held a hearing on the issue of residency.