Monday, June 20, 2016

A motion to change venue.

Practice point:  The Appellate Division reversed the denial of the motion to change and the granting of the cross-motion to retain venue, and ordered that the matter be remanded for a hearing to resolve the factual issues raised in the motions.

The Appellate Division found that the denial of defendants' motion to change venue from Bronx County to Westchester County without a hearing was an improvident exercise of discretion. Once a movant establishes in a venue motion that the plaintiff's residence was other than that claimed in the complaint, the plaintiff opposing a motion for a change of venue must establish through documentary evidence his claimed residence. Here, substantial documentary evidence produced in discovery and submitted by defendants on their motion indicated that on the date of the accident plaintiff resided in Westchester County. These documents include hospital records from the time of plaintiff's accident, the incident report from the day of the accident, plaintiff's employment records, tax records and forms from the Internal Revenue Service, pharmacy records, Department of Motor Vehicle records, and automobile insurance records, all of which indicate that his address is in New Rochelle, Westchester County. In response, plaintiff's assertion that he resides at the Bronx residence that he co-owns with his fiancée, while buttressed by the affidavits of his fiancée and a neighbor, was not supported by any objective documentation. The only document plaintiff provided, which he describes as a water bill, is merely an undated commercial solicitation sent to him as a listed homeowner.

Student note:  Although a person may have more than one residence, for venue purposes, there must be evidence that the plaintiff actually resided at the claimed residence at the time the action was commenced. An ownership interest in property does not alone demonstrate residence at that property.

Case:  Crovato v. H&M Hennes & Mauritz, L.P., NY Slip Op 04660 (1st Dep't June 14, 2016)

Here is the decision.

Tomorrow's issue:  Dismissal of a complaint, and denial of a cross-motion for spoilation sanctions.