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Court Grants Change of Venue From Bronx To Westchester County

As part of our continuing commitment to provide outstanding representation and to serve as an information resource, we wish to inform you of a recent decision changing venue in a matter that we are defending.

The venue in which the case is brought can have a large impact on a case. Some counties are known for being favorable to plaintiffs while others have a reputation for being more defense oriented. The difference in the venue can have a large impact not only on the resolution of a case, but also on the value of the case. A decision on a case that we are currently defending shows what can be done when venue is scrutinized.

In Rodas v. Elias, the plaintiff was injured from a fire that took place in a three-family home located in Mt. Vernon, Westchester County. Plaintiff sustained serious injuries. The plaintiff commenced the action in Bronx County claiming that he resided in the Bronx at the time the action was commenced. We are defending the homeowner. Because we had no other information as to where the plaintiff resided at the time the action was commenced, when we answered the complaint we were unable to assert that the plaintiff had selected an improper venue pursuant to CPLR Section 511. When we received plaintiff’s responses to our discovery demands, including the bill of particulars, plaintiff included that he resided on Lincoln Avenue in Mt. Vernon, New York. He also indicated in medical records that his address was in New Rochelle, New York.

Thereafter we moved to change venue from Bronx County to Westchester County based upon the fact that plaintiff had designated the Bronx as an improper venue since the fire took place in Westchester County and none of the parties or material witnesses resided in Bronx County. In addition we asserted that the place of trial should be changed to Westchester County since the convenience of material witnesses would be promoted by that transfer.

In opposition to the motion, the plaintiff claimed that after he was displaced by the fire, he found a permanent residence on East 230th Street in the Bronx where he rented a room from a tenant in the apartment and that he had remained at that Bronx address since June 2013 and when the case was commenced without intention to leave. In deciding the motion, the Court ordered a hearing since there was a lack of evidence to substantiate plaintiff’s claim of residence, however plaintiff had raised issues of fact in his opposition.

At the hearing, plaintiff testified that after he was displaced from his apartment due to the fire, and after he was released from the hospital, he moved with his common law wife to an apartment on 230th Street. Plaintiff was unable to produce any documents showing that he had mail at that address and the prime tenant from whom he allegedly sublet refused to appear or provide an affidavit. Plaintiff’s driver’s license showed the same address which was in New Rochelle that was given when he was admitted to the hospital. Plaintiff admitted that he continued to use the New Rochelle address to receive his mail. In addition, the plaintiff testified that he received no mail at either the Mt. Vernon address or the Bronx address where he moved in May of 2013. Plaintiff further admitted that the New Rochelle address that he used in his hospital records, was the same address that he used when he later opened a Wells Fargo bank account.

After the hearing, the Court granted our motion to change venue from Bronx to Westchester County finding that the plaintiff had failed to establish that at the time he commenced the action he resided in the Bronx with the intent to remain for some length of time and with some permanency as is required. The Court noted that he had provided no documentation such as W2 forms, voter registration records, a written lease or tax filings to confirm his alleged Bronx residence at the time the action was commenced. In light of that, the plaintiff’s self-serving testimony and submissions were insufficient to establish his residency.

As you can see with an aggressive defense and proper preparation, a change of venue can be accomplished as here, from a plaintiff friendly venue to a defense oriented venue. As an aside, plaintiff is now interested in mediating the case.

Should you have any questions, please call.

Thomas M. Bona