Moodie v Kehoe

Moodie v Kehoe 2017 NY Slip Op 07952 Decided on November 14, 2017 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 14, 2017
Friedman, J.P., Kapnick, Webber, Gesmer, Oing, JJ.
4933N 25853/16E

[*1] Pauline Moodie, Plaintiff-Appellant,

v

Maureen Kehoe, Defendant-Respondent.

Law Office of Nicole R. Kilburg, New York (Nicole R. Kilburg of counsel), for appellant.

Law Office of Gialleonardo, Gizzo & Rayhill, Elmsford (Brian J. Rayhill of counsel), for respondent.

Order, Supreme Court, Supreme Court, Bronx County (Fernando Tapia, J.), entered January 12, 2017, which granted defendant's motion to change venue, unanimously reversed, on the law, without costs, and the motion denied.

The motion for a change of venue should have been denied because defendant did not meet her initial burden "of disproving plaintiff's Bronx County residence" (Fiallos v New York University Hosp., 85 AD3d 678 [1st Dept 2011]). In her personally verified complaint, plaintiff alleges that she is a resident of Bronx County, and the summons specifies her address on Baychester Avenue in Bronx County. In support of her motion to change venue, defendant submitted only a copy of the Police Accident Report, which contained no information inconsistent with plaintiff's allegation that she resides in Bronx County. Because defendant did not meet her initial burden of coming forward with evidence that plaintiff resided outside of Bronx County, the burden never shifted to plaintiff to produce evidence demonstrating her residence in that jurisdiction. In view of defendant's failure to meet her initial burden, it is unnecessary to consider the sufficiency of plaintiff's opposition to the motion (see Mejia v J. Crew Operating Corp., 140 AD3d 505 [1st Dept 2016]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 14, 2017

CLERK