Tiangco v Andrickson

Tiangco v Andrickson 2014 NY Slip Op 02426 Decided on April 9, 2014 Appellate Division, Second 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 April 9, 2014
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
MARK C. DILLON, J.P.
RUTH C. BALKIN
JOHN M. LEVENTHAL
CHERYL E. CHAMBERS, JJ.
2013-04808
(Index No. 7178/12)

[*1]Arjoi Tiangco, respondent,

v

Jose Andrickson, appellant.




Nancy L. Isserlis, Long Island City, N.Y. (Lawrence R. Miles of
counsel), for appellant.
Sean H. Rooney, Brooklyn, N.Y., for respondent.


DECISION & ORDER

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Saitta, J.), dated March 14, 2013, which denied his motion to transfer venue of this action from Kings County to New York County.

ORDERED that the order is reversed, on the law, with costs, and the matter is remitted to the 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 on his purported residence there (see CPLR 503[a]). The defendant moved to change venue (see CPLR 511), presenting evidence which established, prima facie, that the plaintiff resided in Queens County, and that venue should be placed in New York County based on the defendant's residence (see Morreale v 105 Page Homeowners Assn., Inc., 64 AD3d 689, 690; Samuel v Green, 276 AD2d 687). In opposition, however, the plaintiff's submissions were sufficient to raise an issue of fact warranting a hearing on the issue of whether he resided in Kings County at the time of the commencement of this action (see Feather v Goglia, 65 AD3d 1186, 1187; Johnson v Goia, 38 AD3d 845; Ramondi v Paramount Leasehold L.P., 37 AD3d 447). Since this issue of fact could not have been properly resolved on the papers alone, the Supreme Court should have held a hearing on the issue of residency prior to determination of the motion.
DILLON, J.P., BALKIN, LEVENTHAL and CHAMBERS, JJ., concur.

ENTER:

Aprilanne Agostino [*2]

Clerk of the Court