Court Grants Defendants’ Motion to Change Venue from Bronx County to Nassau County

In a decision dated September 30, 2010, Justice Betty Owen Stinson granted the defendants’ motion to change venue from Bronx County to Nassau County. On April 2, 2008, the plaintiff commenced suit by filing a summons and complaint in Bronx County Supreme Court.  The basis for venue in Bronx County was plaintiff’s alleged residence in that county. On August 28, 2008, defendants served a demand for a change of venue to Nassau County along with their answer.  The plaintiff never responded to the demand for a change of venue. At the plaintiff’s deposition he testified that when the action was commenced he lived in Bronx County, at the home of his cousins. He testified that he moved there in February of 2008, a little more than one month prior to commencement of the lawsuit. Before that, he had lived his entire life in Nassau County.  When asked what prompted the move, the plaintiff testified that he was going to have surgery and had to stay with somebody for a few months to look after him for three or four months. On or about February of 2009, the plaintiff moved out of his cousins’ house to another address in the Bronx, but offered no proof of that residence. When asked why he did not return to his parents’ home in Nassau County, he replied that they had moved to Pennsylvania and he wanted to be near his cousins who had been so helpful. On June 26, 2009, the defendants served a motion to change venue. In response to the motion, plaintiff provided copies of a driver’s license and car registration which were issued on February 22, 2008 as documentary proof of his Bronx residence. Those items represented plaintiff’s address to be the home of his cousins. Other items that were offered consisted of correspondence received in the mail after commencement of the lawsuit. Plaintiff had no medical treatment in Bronx County or in the City of New York. All of the treatment took place in Nassau County. Additionally, one of the defendants resided in Nassau County. In granting defendants’ motion to change venue from Bronx County to Nassau County, the court held that plaintiff’s driver’s license and registration, issued on the same date, were not enough alone to establish residency for the purpose of venue in light of plaintiff’s subsequent admission that he never intended to remain with his cousins at the address listed on those documents with any degree of permanency. The court also excused defendants’ delay in bringing the motion due entirely to plaintiff’s evasiveness, willful omissions and misleading statements.

Apicello v. Robert E. Coyles, Tully Construction Co. et al., Index No. 302658/08 (Bronx Co. Sup. Ct., September 30, 2010)

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