Prawl v Ajasin

[*1] Prawl v Ajasin 2008 NY Slip Op 51936(U) [21 Misc 3d 1103(A)] Decided on February 14, 2008 Supreme Court, Bronx County Billings, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 14, 2008
Supreme Court, Bronx County

Matthew Prawl, Plaintiff

against

Moses O. Ajasin, Defendant



21905/2006



APPEARANCES:

For Plaintiff

Eric Green Esq.

By: Hiram Raldiris Esq.

295 Madison Avenue, New York, NY 10017

For Defendant

Patricia Wilton Esq.

Kay & Gray

875 Merrick Avenue, Westbury, NY 11590

Lucy Billings, J.

After an evidentiary hearing, defendant's uncontradicted testimony and documentary evidence, Ex. A, established that he has resided in Nassau County since October 2004, before plaintiff commenced this action in 2006. Defendant explained that while the New York State Department of Motor Vehicles had changed his vehicle registration to reflect his Nassau County address by the time his motor vehicle collision with plaintiff occurred in May 2005, defendant's driver's license still showed his former Bronx County residence. The police who responded to the collision requested both documents and consequently recorded the Nassau County address for defendant's vehicle, but the Bronx County address for his residence. Ex. 1. In this action claiming injuries from the collision, plaintiff, a resident of Nassau County, then predicated venue on defendant's residence in Bronx County, as shown on defendant's driver's license.

New York Vehicle and Traffic Law (VTL) § 505(5) required defendant, within 10 days of his change in residence, to notify the New York State Department of Motor Vehicles in writing of the change and to record it on his driver's license. Even if defendant violated VTL § 505(5), however, that violation only would allow plaintiff now to choose another proper venue as an alternative to Bronx County, which is in fact improper on any basis. Here, no such alternative is available; defendant's choice, Nassau County, is the only proper choice. C.P.L.R. § 510(1); Discolo v. River Gas & Wash Corp., 41 AD3d 126 (1st Dep't 2007); Vasquez v. Sonin, 259 AD2d 340, 341 (1st Dep't 1999). See Montesano v. New York City Hous. Auth., __ AD3d __, 848 NYS2d 63, 65 (1st Dep't 2007); Key-Kanuteh v. Kenia, 288 AD2d 16 (1st Dep't 2001). Although defendant's violation of VTL § 505(5) also allowed plaintiff to serve defendant at the Bronx County address, e.g., Stillman v. City of New York, 39 AD3d 301, 303 (1st Dep't 2007); Toure v. Harrison, 6 AD3d 270, 271 (1st Dep't 2004); Ortiz v. Santiago, 303 AD2d 1, 4-5 (1st Dep't 2003), that violation did not allow plaintiff to predicate venue on an address that in fact [*2]was not defendant's residence. Cruz v. Taino Constr. Corp., 38 AD3d 391, 392 (1st Dep't 2007); Herrera v. A. Pegasus Limousine Corp., 34 AD3d 267 (1st Dep't 2006); Vasquez v. Sonin, 259 AD2d at 340-41. See Keane v. Kamin, 94 NY2d 262, 266 (1999); Mitchell v. Cunningham, 281 AD2d 192 (1st Dep't 2001)

On this basis, the court grants defendant's motion to change the venue of this action to the Supreme Court of Nassau County, based on both parties' residence in Nassau County. C.P.L.R. §§ 503(a), 510(1); Montesano v. New York City Hous. Auth., 848 NYS2d at 65; Key-Kanuteh v. Kenia, 288 AD2d 16. The Bronx County Clerk shall deliver the file and any certified minutes and entries in this action forthwith to the Nassau County Clerk. C.P.L.R. § 511(d).

DATED: February 14, 2008

_____________________________

LUCY BILLINGS, J.S.C.