Torres v 1 Jacobus Place, LLC.

[*1] Torres v 1 Jacobus Place, LLC 2006 NY Slip Op 52060(U) [13 Misc 3d 1229(A)] Decided on June 19, 2006 Supreme Court, Bronx County Billings, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through November 1, 2006; it will not be published in the printed Official Reports.

Decided on June 19, 2006
Supreme Court, Bronx County

Justine Torres, an infant, by her mother and natural guardian, Maria M. Torres, and Maria M. Torres, individually, Plaintiffs,

against

1 Jacobus Place, LLC, Defendant



16652/2005



APPEARANCES:

For Plaintiffs

Charles David Segal Esq.

225 Broadway, New York, NY 10007

For Defendant

Raymond A. Cote Esq.

Steven R. Sundheim & Associates

777 Westchester Avenue, White Plains, NY 10604

Lucy Billings, J.

I.INTRODUCTION

Plaintiffs sue for personal injuries sustained at a building defendant owns. Defendant moves to change the venue of this action to Westchester County. C.P.L.R. §§ 510(1), 511(b). Defendant contends that plaintiffs' residence is the basis for their designated venue, but that 1-9 Jacobus Place, their undisputed residence when plaintiffs commenced this action and where they sustained their injuries, is in New York County. Plaintiffs' supplemental summons and amended complaint, however, designate defendant's residence, as well as plaintiffs', as a basis for venue. Defendant, a limited liability company (LLC) that owns 1-9 Jacobus Place, further claims that defendant's residence is not in Bronx County either, but in Westchester County.

While 1-9 Jacobus Place lies north of the island of Manhattan, on Marble Hill, that Marble Hill neighborhood is part of New York County. Defendant has not met its burden to show, however, that defendant is not a resident of Bronx County and is instead a resident of Westchester County. Consequently, after oral argument, as further explained below, the court concludes that the office of defendant's "head officer" in Bronx County provides the basis for venue here and denies defendant's motion to change venue. Aff. of Charles David Segal, Ex. 3.

II.DEFENDANT LLC'S RESIDENCE

An LLC is considered a resident of the county where the LLC's principal office is located. Johanson v. J.B. Hunt Transp., Inc., 15 AD3d 268, 269 (1st Dep't 2005); Graziuso v. 2060 Hylan Blvd. Rest. Corp., 300 AD2d 627, 628 (2d Dep't 2002). See C.P.L.R. § 503(c). An LLC's articles of organization must set forth the county where the LLC's principal office is located. NY [*2]Ltd. Liab. Co. (LLC) Law § 203(e)(2).

To show that defendant's residence is in Westchester County, defendant presents a copy of a certified deed to 1-9 Jacobus Place, "in the Borough of Manhattan, . . . County . . . of New York," listing defendant as the grantee, "with offices at 455 Central Park Avenue, Scarsdale, NY." Aff. of Raymond A. Cote, Ex. G at 1. This document, however, shows only that defendant has "offices," not necessarily its principal office, in Westchester County. Id.

Second, defendant presents a document that defendant's attorney describes as from the New York State Department of State (DOS) Division of Corporations website, without further authentication or foundation. See Commissioners of State Ins. Fund v. Brooklyn Barber Beauty Equip. Co., 191 Misc 2d 1, 6 (Civ. Ct. NY Co. 2001); Samson Moving & Stor. Corp. v. Drake Bus. School, 2000 WL 33529056, 2000 NY Slip Op 40023 (Civ. Ct. NY Co. 2000). This document states: Current Entity Name: 1 JACOBUS LLCInitial DOS Filing Date: May 13, 1998County: Westchester

Cote Aff., Ex. I. Assuming this document is in fact an official DOS document from public records, Siwek v. Mahoney, 39 NY2d 159, 163 n.2 (1978); 60 Mkt. St. Assocs. v. Harnett, 153 AD2d 205, 208 n. (3d Dep't), aff'd, 76 NY2d 993 (1990); Soronen v. Comptroller of State of NY, 248 AD2d 789, 791 & n.1 (3d Dep't 1998); Scuderi v. Scuderi, 247 AD2d 393, 394 (2d Dep't 1998), accessible to the public from the Division's electronic database, Commissioners of State Ins. Fund v. Brooklyn Barber Beauty Equip. Co., 191 Misc 2d at 6; Samson Moving & Stor. Corp. v. Drake Bus. School, 2000 WL 33529056, 2000 NY Slip Op 40023, defendant presents no evidence that this document's contents reflect either the contents of defendant's articles of organization or defendant's status when plaintiffs commenced this action. Curiously, defendant does not present its articles of organization themselves, nor any attestation on personal knowledge or other admissible evidence regarding the location of defendant's principal office. Without more, this DOS listing of Westchester County does not compel the conclusion that defendant's principal office was in Westchester County when plaintiffs commenced this action.

In fact, this document also lists defendant's address to which DOS is to mail process accepted by DOS on defendant's behalf as 5600A Broadway, Bronx, New York, in Bronx County. LLC Law § 303(a). See Johanson v. J.B. Hunt Transp., Inc., 15 AD3d at 269-70. Moreover, plaintiffs' attorney presents a similar website page of New York City Department of Housing Preservation and Development building registration information provided by defendant, listing defendant as the owner of 1 Jacobus Place and the only address of both defendant and its "head officer" as 5600A Broadway, Bronx, New York. Segal Aff., Ex. 3.

The evidence thus shows that not only defendant's office for service of process, but also the office of its head or "principal" officer, is in Bronx County. C.P.L.R. § 503(c); LLC Law § 203(e)(2); Johanson v. J.B. Hunt Transp., Inc., 15 AD3d at 269; Graziuso v. 2060 Hylan Blvd. Rest. Corp., 300 AD2d at 628. Certainly this office of defendant's principal officer could be considered, and it may in fact be, defendant's principal office. Given this evidence, defendant has not met its burden to establish that, based on defendant's rather than plaintiffs' residence, plaintiffs' selection of venue is improper or that a change of venue to Westchester County is warranted. C.P.L.R. §§ 503, 510(1); Rivera v. Jensen, 307 AD2d 229 (1st Dep't 2003); Clarke v. Ahearn Prod. Servs., 181 AD2d 514, 515 (1st Dep't 1992). See Collins v. Glenwood Mgt. Corp., 25 AD3d 447, 449 (1st Dep't 2006); Parker v. Calamaras, 269 AD2d 149 (1st Dep't 2000).

III.CONCLUSION

Although C.P.L.R. § 503 nowhere expressly provides that an LLC is a resident of the county where the LLC's principal office is located, and reliance on such a rule and the LLC's articles of organization might constitute a "stitching together" of C.P.L.R. § 503(c) and LLC Law § 203(e)(2), Johanson v. J.B. Hunt Transp., Inc., 15 AD3d at 269, defendant nonetheless must overcome the presumption that venue is plaintiffs' choice. Id. at 270. See Graziuso v. 2060 [*3]Hylan Blvd. Rest. Corp., 300 AD2d at 628. The only limitations on that choice are the parties' residence and the ends of justice. C.P.L.R. §§ 503(a), 510(2) and (3).

New York County, where plaintiffs reside, would be a proper venue, but it is not the venue defendant seeks, nor one to which it would agree, and therefore must be discounted as a choice. Between Bronx County and Westchester County, the parties have no more connection to the latter than the former. Defendant, at minimum, conducts substantial business from an office here, while plaintiffs' residence, north of the island of Manhattan, on the Bronx County border, in a Bronx County school district, and with a mailing address in Bronx County and a lease and building registration listing the residence in Bronx County, as a practical matter, could be here as well. Johanson v. J.B. Hunt Transp., Inc., 15 AD3d at 270. Upon these grounds, as well as the standards set forth above, the court denies defendant's motion to change the venue of this action to Westchester County. C.P.L.R. §§ 503, 510(1).

DATED: June 19, 2006

_____________________________

LUCY BILLINGS, J.S.C.