X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.

Hand Down List decided on: August 21, 2019

By Balkin, J.P.; Austin, Roman and Connolly, JJ. O.K., etc. ap, v. Y.M. & Y.W.H.A. of Williamsburg, Inc. res — (Index No. 511837/17) In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Kings County (Carolyn E. Wade, J.), dated January 19, 2018. The order granted the defendants’ motion pursuant to CPLR 510(1) and 511(a) to change the venue of the action from Kings County to Nassau County. ORDERED that the order is reversed, on the law, with costs, and the defendants’ motion pursuant to CPLR 510(1) and 511(a) to change the venue of the action from Kings County to Nassau County is denied. The plaintiffs commenced this action to recover damages for personal injuries that the infant plaintiff allegedly sustained when she fell at a daycare facility operated by the defendants in Brooklyn. The summons stated that the plaintiffs designated Kings County as the venue based upon the defendants’ residence, and the complaint alleged that the defendants maintained their principal place of business in Kings County. The defendants moved pursuant to CPLR 510(1) and 511(a) to change the venue of the action from Kings County to Nassau County, where the defendants’ allegedly maintained their principal office. The defendants argued that Kings County was not a proper venue because neither party resided there at the time of the commencement of the action. In the order appealed from, the Supreme Court granted the defendants’ motion. The plaintiffs appeal. At the time of the commencement of this action, CPLR 503 provided, in relevant part, that “[e]xcept 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” (CPLR 503[a], as amended by L 2017, ch 366 [eff Oct. 23, 2017]; Matoszko v. Kielmanowicz, 136 AD3d 762, 763). ”[T]he sole residence of a domestic corporation for venue purposes is the county designated in its certificate of incorporation, despite its maintenance of an office or facility in another county” (Graziuso v. 2060 Hylan Blvd. Rest. Corp., 300 AD2d 627, 627; see Kidd v. 22-11 Realty, LLC, 142 AD3d 488, 489; Matoszko v. Kielmanowicz, 136 AD3d at 763). “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 its choice of venue is proper” (Gonzalez v. Sun Moon Enters. Corp., 53 AD3d 526, 526; see Kidd v. 22-11 Realty, LLC, 142 AD3d at 489). To succeed on their motion here, the defendants were obligated to demonstrate that, on the date that this action was commenced, neither of the parties resided in Kings County (see Deas v. Ahmed, 120 AD3d 750, 751; Chehab v. Roitman, 120 AD3d 736, 737; Baez v. Marcus, 58 AD3d 585, 586). Only if the defendants made such a showing were the plaintiffs required to establish, in opposition, via documentary evidence, that the venue they selected was proper (see Deas v. Ahmed, 120 AD3d at 751; Chehab v. Roitman, 120 AD3d at 737). Here, the defendants failed to submit their certificate of incorporation. Contrary to the defendants’ contention, the computer printout they submitted in support of their motion from the website of the New York State Department of State, Division of Corporations was inadmissible, since it was not certified or authenticated, and it was not supported by a factual foundation sufficient to demonstrate its admissibility as a business record (see Werner v. City of New York, 135 AD3d 740, 741; Dyer v. 930 Flushing, LLC, 118 AD3d 742, 742-743). Therefore, the defendants failed to meet their initial burden of demonstrating that their principal office was located in Nassau County and that the plaintiffs’ choice of venue in Kings County was improper (see Kidd v. 22-11 Realty, LLC, 142 AD3d at 489; Ramos v. Cooper Tire & Rubber Co., 62 AD3d 773; see also Deas v. Ahmed, 120 AD3d at 751). Accordingly, the Supreme Court should have denied the defendants’ motion pursuant to CPLR 510(1) and 511(a) to change the venue of the action from Kings County to Nassau County. BALKIN, J.P., AUSTIN, ROMAN and CONNOLLY, JJ., concur.

 
Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.

More From ALM

Premium Subscription

With this subscription you will receive unlimited access to high quality, online, on-demand premium content from well-respected faculty in the legal industry. This is perfect for attorneys licensed in multiple jurisdictions or for attorneys that have fulfilled their CLE requirement but need to access resourceful information for their practice areas.
View Now

Team Accounts

Our Team Account subscription service is for legal teams of four or more attorneys. Each attorney is granted unlimited access to high quality, on-demand premium content from well-respected faculty in the legal industry along with administrative access to easily manage CLE for the entire team.
View Now

Bundle Subscriptions

Gain access to some of the most knowledgeable and experienced attorneys with our 2 bundle options! Our Compliance bundles are curated by CLE Counselors and include current legal topics and challenges within the industry. Our second option allows you to build your bundle and strategically select the content that pertains to your needs. Both options are priced the same.
View Now

Legalweek(year) 2021

February 02, 2021 - July 14, 2021
Virtual

Legalweek(year) will bring together thousands of legal professionals for a series of 5 innovative virtual legal events.


Register

New York Legal Awards 2021

October 21, 2021
New York, NY

The New York Law Journal honors attorneys and judges who have made a remarkable difference in the legal profession in New York.


Register

Dispute Resolution Forum 2021

June 16, 2021
Virtual

Legal professionals from In-House, Private Practice and the Bar work together to overcome challenges facing dispute resolution.


Register

ATTORNEY- SAN FRANCISCO-CALIFORNIA

San Francisco, California, United States

Bartko Zankel Bunzel & Miller is seeking an attorney with at least three years of experience in labor and employment law to join its diverse...


Apply Now ›

ATTORNEY - LOS ANGELES- CALIFORNIA

Los Angeles, California, United States

Bartko Zankel Bunzel & Miller is seeking an attorney with at least seven years of experience in labor and employment law to join its diverse...


Apply Now ›

ATTORNEY

Hartford, Connecticut, United States

New York insurance defense firm with offices in Pennsylvania, New Jersey, New York City, and Western New York, is growing its Stamford/Hartf...


Apply Now ›

MANDELBAUM SALSBURG PC

06/07/2021
NJLJ Web

Please to announce that....


View Announcement ›

BENNETT , TINA

05/27/2021
TLI Web

Bennett, Tina mourns the loss of Elizabeth (Libby) Bennett, Esq.


View Announcement ›

BLOCK O'TOOLE & MURPHY

05/25/2021
NYLJ Web

BLOCK O'TOOLE & MURPHY is pleased to announce the addition of three new associate attorneys to our team.


View Announcement ›