Colavito v Steyer

[*1] Colavito v Steyer 2006 NY Slip Op 52061(U) [13 Misc 3d 1230(A)] Decided on October 27, 2006 Supreme Court, Kings County Schack, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 27, 2006
Supreme Court, Kings County

Angela Colavito, Plaintiff,

against

Nicholas P. Steyer, Defendant. Kathleen Tobin, Plaintiff, Angela Colavito and Nicholas P. Steyer, Defendants.



Kathleen Tobin, Plaintiff, -against-

against

Angela Colavito and Nicholas P. Steyer,Defendants.



35620/04



Appearances:

Plaintiff

Decolator Cohen & Diprisco LLP

Garden City NY

Defendant

Montfort Healy McGuire & Salley

Garden City NY

Arthur M. Schack, J.

Defendant Steyer moves to transfer the venue for both actions, which resulted from a July 5, 2004-motor vehicle accident in Saugerties, New York (Ulster County), pursuant to CPLR § § 503 (a) and 510 (3), and for "such other and further relief as to this Court deems just and proper." The actions were joined together for trial. Plaintiffs in both actions, Ms. Colavito and Ms. Tobin, oppose the motion. Ms. Colavito and Ms. Tobin engaged in subterfuge, claiming Kings County venues based upon their alleged residencies at addresses in Bay Ridge, Brooklyn. Their sworn testimony demonstrates that they resided in Greene County at the time and subsequent to the accident. Therefore, this Court, in its discretion, will grant relief that "it deems just and proper" to change venue from Kings County to Ulster County, the county of defendant Steyer's residence, as well as the location of the accident. To continue venue in Kings County would reward plaintiffs for perpetrating their deception.

Background

This action arose from a July 5, 2004-accident between a vehicle operated by plaintiff Angela Colavito and a vehicle operated by defendant Nicholas P. Steyer, at the intersection of Main Street and Partition Street in the Village of Saugerties, New York. Plaintiff Kathleen Tobin was a passenger in Ms. Colavito's vehicle.

Action #1, with Ms. Colavito as plaintiff, was commenced on October 29, 2004, with the filing of the summons and verified complaint with the Kings County Clerk. The summons stated "Plaintiff resides at: 8301 Ridge Blvd. Brooklyn, NY 11209" [exhibit A of motion]. Action #2, with Ms. Tobin as plaintiff, was commenced on June 9, 2005, with the filing of the summons and verified complaint with the Kings County Clerk. The summons stated "Plaintiff resides at: 537 81st Street Brooklyn, NY 11209" [exhibit C of motion]. Both cases were joined together for trial by my order dated October 18, 2005 [exhibit E of motion].

Defendant Steyer's attorney, on December 27, 2004, served a demand to change the venue of Action #1 to Ulster County, Mr. Steyer's county of residency, pursuant to CPLR Rule 511 (b), and on the ground that plaintiff resides in Ulster County [exhibit F of motion]. Pursuant to CPLR Rule 511 (a), defendant's demand to change the venue was served with defendant's answer [exhibit B of motion]. The demand for the change of the venue by defendant was predicated upon Ms. Colavito's sworn testimony in the December 6, 2004 small claims trial for property damage from the instant motor vehicle accident, in the Town Court of the Town of Catskill, Greene County.

In the small claims trial, Mr. Steyer's father, the owner of the Steyer vehicle, was the plaintiff pro se and Ms. Colavito was the defendant, and represented by counsel. The police accident report, completed by Patrolman Terry Mayone of the Saugerties Police Department, was admitted into evidence as plaintiff's exhibit 1 at page 57 of the trial transcript [exhibit H of motion - transcript of December 6, 2004 Steyer v Colavito trial in Town of Catskill Court; exhibit I of motion - Patrolman Mayone's police accident DMV-104 report]. The police report states that Ms. Colavito's address is 12 Easy Street East, [*2]Catskill, New York (Greene County). Further, when Ms. Colavito testified, the following exchange took place at page 75, lines 19 - 23:

Q. You are Angela Colavito?

A. Yes, I am.

Q. Ms. Colavito, could you tell us where you live?

A. I live in Catskill.

Further, Ms. Colavito testified at page 88, lines 5 - 11: Q. On the day of this incident, what street were you on as you approached the intersection?

A. I was on Partition Street.

Q. And your intention at that where were you headed, by the way?

A. I was on my way home. I was taking 9W to go home to Catskill.

Plaintiff Colavito was deposed on November 21, 2005 [exhibit G of motion]. On page 4 of her EBT, at lines 11 -12 she stated that she resides at "12 East Street East, Catskill, New York 12414." She further testified, under oath, at page 4, line 23 - page 5, line 7:

Q. You state that you reside at 12 Easy Street East, Catskill, New York 12414?

A. Yes.

Q. How long have you lived there?

A. Since 2001.

Q. Where did you live prior to that?

A. 8301 Ridge Boulevard, Apartment 4H, Brooklyn, New York.

Q. How long did you live there?

A. About three and a half years.

Plaintiff Tobin in Action #2, who gave a Brooklyn residence in her summons, also testified in the December 6, 2004 small claims action. On page 99, line 9 of the trial transcript, she testified that she lived in Catskill. Defendant's counsel ignores this deception and instead moves for change of venue pursuant to CPLR § 510 (3) that "[t]he Court, upon motion, may change the place of trial of an action where: . . . (3) the convenience of material witnesses and the ends of justice will be promoted." While all the witnesses and their addresses are given, the proposed witnesses' occupations and how a trial in Kings County would inconvenience them are not explained in either an affidavit by defendant or affidavits of any of the proposed witnesses.

Counsel for plaintiffs in Actions #1 and #2, in his opposition papers, does not address the residency issue with respect to his clients. No affidavits by Ms. Colavito and Ms. Tobin as to their residency are presented. The only sworn testimonies as to their residencies are their testimony on December 6, 2004 and Ms. Colavito's EBT testimony on November 21, 2005. This clearly demonstrates that on the date of the accident, and subsequent to the accident, plaintiffs in both actions were and are residents of Greene County. However, there is no question that defendant Steyer is a resident of Saugerties, [*3]the site of the accident, in Ulster County (approximately 12 miles south of Catskill).

Counsel for plaintiffs argues that the instant motion should be denied as untimely and because defendant's counsel failed to make a detailed evidentiary showing that a change of venue will be more convenient for prospective witnesses. The timeliness argument and the defects in demonstrating that a change of venue is more convenient for prospective witnesses, as will be discussed below, are outweighed by plaintiffs' deceitful use of prior Brooklyn addresses to attempt to have venue in Kings County. Ulster County is the logical venue for these joined actions to be tried. Otherwise, the ends of justice will be corrupted and deception will be rewarded. Justice requires proceeding on the "High Road" and not following the low road of "Easy Street."

Discussion

Pursuant to CPLR § 510 (1), the court, upon motion, has the discretion to change venue of a trial where "the county designated for that purpose is not a proper county." In the instant action, defendant's motion is well beyond his statutory 15 days as of right to change venue as per CPLR Rule 511 (b), after service of his demand to change venue in Action #1. However, the instant motion is discretionary, pursuant to CPLR § 510 (1), which provides that the court, upon motion, has the discretion to change venue of a trial where "the county designated for that purpose is not a proper county." Reichenbach v Corn Exchange Bank Trust Co., 249 AD 539 (1st Dept 1937); Fitzpatrick v Sullivan, Magee & Sullivan, Inc., 49 AD2d 902 (2d Dept 1975); Roman v Brereton, 182 AD2d 556 (2d Dept 1992); Palla v Doctors Hosp. of Staten Island, Inc., 248 AD2d 603 (2d Dept 1998); Horowicz v RSD Transp., 249 AD2d 511 (2d Dept 1998); Siegel, NY Prac § 123, at 216 [4th ed].

Defendant argues incorrectly, in his motion with respect to Action #2, that pursuant to CPLR § 510 (3), he has made a proper evidentiary showing of a change of venue for the convenience of witnesses. In O'Brien v Vassar Bros. Hosp., 207 AD2d 169 (2d Dept 1995), the Court set a four-prong test that the movant must establish for relief pursuant to CPLR § 510 (3). These are: (1) a listing of the names, addresses and occupations of the prospective witnesses; (2) disclosure of the facts to which the witnesses will testify, for the court's determination that this evidence is necessary and material; (3) a showing that these witnesses are willing to testify; and (4) a demonstration of how these witnesses would be inconvenienced if a venue change is not granted. Defendant has failed to present any evidence: of the occupations of the prospective witnesses; that the witnesses are willing to testify; and how the witnesses would be inconvenienced if the venue change is not granted.

However, it is clear that plaintiffs in both Actions #1 and #2 reside in Catskill

(Greene County). Plaintiffs fraudulently claimed Kings County as their residencies when commencing these actions. Defendant resides in Saugerties (Ulster County). In Kelson v Nedicks Stores, Inc., 104 AD2d 315 (1st Dept 1984), the Court instructed that, "[i]t is [*4]settled that a plaintiff will forfeit the right to select the place of venue by choosing an improper venue in the first instance (see Siegel, New York Practice, § 123; Weinstein-Korn-Miller, New York Civil Practice, § 511.04; Papadakis v Command Bus Co., 91 AD2d 675 [2nd Dept 1982])."

Thus, with Kings County being the improper place of venue, venue will be transferred to defendant's county of residency, Ulster County. In Fisher v Finnegan-Curtis, 8 AD3d 527, 528 (2d Dept 2004), the Court instructed that:

The venue of an action should be placed "in the county in

which one of the parties resided when it was commenced" (CPLR

503 [a]). Since neither of the parties resided in Kings County at the

time the action was commenced, the plaintiff's commencement of

the action in Kings County was improper. A plaintiff who selects

an improper venue in the first instance forfeits the right to choose

the place of venue (see Nixon v Federated Dept. Stores, 170 AD2d

659, 660 [1991]).

See Greenberg v Kruse, 23 AD3d 347 (2d Dept 2005); Hitchoff v Air Brook Limousine, Inc., 26 AD3d 310 (2d Dept 2006). Further, in their opposition papers, plaintiffs made no attempt to show that they were residents of Kings County. Ruiz v Lazala, 26 AD3d 366 (2d Dept 2006).

Ms. Colavito testified at her EBT that she hasn't lived in Brooklyn since 2001,

and testified in the December 6, 2004 Catskill Town Court trial that she lives in Catskill. Ms. Tobin testified in the December 6, 2004 Catskill Town Court trial that she also lives in Catskill. Plaintiffs' attorney used outdated Brooklyn addresses to commence litigation in Kings County. With the right to a Kings County venue forfeited by plaintiffs, it would be a travesty of justice to deny a change of venue to Ulster County, the county of residence of defendant and many of the witnesses, as well as the location of the instant accident. The ends of justice will be promoted by this change of venue. Otherwise, a message will be sent to prospective plaintiffs that a false address can be utilized to create venue in an improper county.

Conclusion

Accordingly, it is

ORDERED that the motion of Nicholas P. Steyer, defendant in both Actions #1 and #2, to change venue from Kings County to Ulster County is granted, and it is further

ORDERED that the Clerk of the County of Kings, upon service of a copy of this order, and upon payment of the requisite fee, if any, is directed to transmit all papers on file in the actions bearing Index # 35620/04 and Index #17934/05 to the Clerk of the County of Ulster. [*5]

This constitutes the decision and order of this court.

E N T E R

HON. ARTHUR M. SCHACK

J. S.C.