Kennedy v Columbus Ctr. Retail LLC

[*1] Kennedy v Columbus Ctr. Retail LLC 2009 NY Slip Op 52413(U) [25 Misc 3d 1234(A)] Decided on December 1, 2009 Supreme Court, Kings County Rivera, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 1, 2009
Supreme Court, Kings County

Shavonesia Kennedy, Plaintiff,

against

Columbus Centre Retail LLC, A/R RETAIL LLC, AOL TIME WARNER REALTY INC., ONESOURCE NY, INC. and TIME WARNER CENTER CONDOMINIUM, Defendants.



14636/07



Counsel:

For Plaintiff

Jeffrey A. Berson

Berson & Budashewitz,LLP

15 Maiden Lane, Suite 1305

New York, New York 10038

212-945-5000

For Defendant Onesource NY, Inc.:

Douglas Shearer

McKeegan & Shearer, P.C.

192 Lexington Avenue, Suite 701

New York, New York 10017

212-661-4200

Francois A. Rivera, J.

By notice of motion filed on July 15, 2009, under motion sequence number four, defendant OneSource NY, Inc. (hereinafter OSNY), moves pursuant to CPLR §§ 503(a) and 511, for an order changing venue to New York County on the grounds that Kings County is an improper venue. Plaintiff opposes the motion.

BACKGROUND

On April 30, 2007, plaintiff commenced the instant action for personal injuries she allegedly sustained on February 8, 2007 while walking on a defective sidewalk condition [*2]located in the front of the premises designated as 10 Columbus Circle, New York, New York. On June 29, 2009, OSNY served its answer and a demand for a change of venue. Plaintiff has designated Kings county for the trial of the action based on her residence at 655 Shepherd Avenue, Brooklyn, New York.

MOTION PAPERS

OSNY's motion papers consist of an attorney's affirmation and six exhibits labeled A through F. Exhibit A is copy of an order of this court dated May 22, 2009 and an amended summons and verified complaint. Exhibit B is OSNY's answer and demand for a change of venue. Exhibit C is a copy of the certified deposition transcript of the plaintiff taken on November 24, 2008. Exhibit D is an incident report. Exhibit E is a copy of a letter dated February 2, 2009 from John Jay College. Exhibit F is a copy of a medical records.

Plaintiff's opposition consists of an attorney's affirmation and four exhibits labeled A through D. Exhibit A is a copy of the summons and verified complaint. Exhibit B is an affidavit of the plaintiff. Exhibit C is a copy of the amended summons and verified complaint dated February 6, 2008. Exhibit D is a copy of another amended summons and complaint dated May 26, 2009.

OSNY's reply consists of an attorney's affirmation and two exhibits labeled A and B. Exhibit A and B are medical records.

Plaintiff submitted a sur-reply which consists of an attorney's affirmation.

APPLICABLE LAW

CPLR § 503 captioned "venue based on residence", set forth the rules governing venue for different causes of action based on the residences of the parties. CPLR § 510 sets forth the grounds for changing the place of trial and CPLR § 511 sets forth the procedure for seeking the change. The place of trial or venue means the geographical subdivision in which an action may be brought and assumes that the chosen court already has both subject matter and personal jurisdiction. A motion to change venue pursuant to CPLR § 510(1) is premised on a claim that the venue chosen is improper. Its review requires that the court identify the underlying cause of action within one of four categories. The first is actions affecting interest in real property, known as local actions. The second is all other actions, popularly known as transitory actions. The third is an action to recover a chattel which the parties may elect to treat as local or transitory. The fourth is actions where the parties have contracted to a choice of venue, whether the action has been treated as local or transitory.

CPLR § 503(a) provides: Except where otherwise prescribed by law, the place of trial shall be in the county in which one of the parties resided when it was commenced; or, if none of the parties then resided in the state, in any county designated by the plaintiff. A party resident in more than one county shall be deemed a resident of each such county. [*3]

Actions brought in the wrong county contrary to CPLR § 503(a) may be changed as of right. A defendant's desire for a change of venue as of right must be commenced by first issuing a demand upon the plaintiff and absent acquiescence by plaintiff, by a motion filed with the court pursuant to CPLR § 511 (b). CPLR § 511 (b) provides: Demand for change of place of trial upon ground of improper venue, where motion made. The defendant shall serve a written demand that the action be tried in a county he specifies as proper. Thereafter the defendant may move to change the place of trial within fifteen days after service of the demand, unless within five days after such service plaintiff serves a written consent to change the place of trial to that specified by the defendant. Defendant may notice such motion to be heard as if the action were pending in the county he specified, unless plaintiff within five days after service of the demand serves an affidavit showing either that the county specified by the defendant is not proper or that the county designated by him is proper.

DISCUSSION

The case at bar is one for personal injuries and is therefore transitory in nature and governed by CPLR § 503(a). On July 13, 2009, OSNY served its answer to the complaint and a demand to change venue to New York County as of right. OSNY timely complied with the requirements of CPLR § 511(b). OSNY also timely brought the instant motion within fifteen days of the service of its demand for change of venue.

The sole issue in contention is whether the action is properly brought in Kings county. If plaintiff was a resident of Kings County on April 30, 2007, the date plaintiff commenced the action, then her choice of Kings County for venue was proper. OSNY claims that plaintiff did not reside in Kings County when the action was commenced.

The affirmation of OSNY's counsel in support of its motion refers to sections of plaintiff's deposition transcripts, an incident report, a school form and some medical records. OSNY focuses on plaintiff's testimony in which she stated that she resided at 665 Shepard Avenue in Kings County on the date of the accident and six months prior thereto. OSNY does not refer to any other part of the transcript to support its contention on venue. This part of her testimony certainly does not state where plaintiff's resided on April 30, 2007. The affirmation of OSNY's counsel demonstrates no personal knowledge of the facts pertaining to the incident report, school record and medical records and therefore has no evidentiary value (Morales v. Coram Materials Corp., 51 AD3d 86 [2nd Dept., 2008]). There is no affidavit from the preparer of the incident report, school record or medical records. However, the affirmation of an attorney, even if he has no personal knowledge of the facts, may of course, serve as a vehicle for the submission of acceptable attachments which do provide evidentiary proof in admissible form e.g. documents, transcripts (Worldwide Assets v. Karafotias, 9 Misc 3d 390 at 395 [Civ.Ct., Kings County 2005]). Applying this analysis here, only the deposition transcripts of the plaintiff are admissible. OSNY has offered no sworn testimony from anyone to authenticate or admit either the incident report, school records or medical records that it has annexed to its motion or the medical records it has annexed to its reply. Nor has OSNY demonstrated some other basis for admission of the documents such as CPLR §§ 4518 or 4520. The other documents are not authenticated and are therefore not in admissible form. [*4]

In opposition to the motion, plaintiff has submitted her affidavit in which she admits to two residence, one in New York County and the other in Kings County. The Kings County residence is 665 Shepard Avenue, Brooklyn, New York where she resides with her father and younger sibling. The New York County residence is 235 Lenox Avenue, New York, New York where she resides with her mother and another sibling. She claims that she has resided at both residences since at least February of 2007. As a dual resident venue is proper in either county and plaintiff may elect to prosecute the action in either Kings or New York County. In sum, OSNY has not demonstrated that plaintiff lived outside of Kings County when the action was commenced.

OSNY's motion to change venue as of right from Kings County to New York County is denied.

The foregoing constitutes the decision and order of this court.

 1;x

J.S.C.

Enter forthwith x

J.S.C.