Practice point: To effect a change of venue pursuant to CPLR 510(1), a defendant must show that the plaintiff's choice of venue is improper and that defendant's choice of venue is proper. To succeed on his motion here, the defendant was obligated to demonstrate that, on the date that this action was commenced, neither of the parties resided in the county that the plaintiff designated. Only if the defendant made such a showing was the plaintiff required to establish, in opposition, via documentary evidence, that the venue he had selected was proper.
The only evidence that the defendant submitted with
respect to the issue of the plaintiff's residence was the police
accident report on the accident. This evidence merely
showed that, at the time the accident occurred, the plaintiff had a
residence in Texas. This evidence did not demonstrate that the plaintiff
did not maintain a residence in Kings County when the
action was commenced, two months after the accident. Therefore, the defendant failed to meet his initial burden.
Student note: A plaintiff may choose venue based solely on a defendant's address, as set forth in a police accident report. However, that report, standing alone, is not enough to demonstrate that, on the date that an action is
commenced, a plaintiff does not reside in the county where he or she
elects to place venue.
Case: Chehab v. Roitman, NY Slip Op 05939 (2d Dept. 2014)
Here is the decision.
Tomorrow's issue: Emails, affidavits, and documentary evidence.