Addo v. Melnick

• Decision Date: 09 April 2009
• Docket Number: 5392N.
• Citation: 61 A.D.3d 453,2009 NY Slip Op 02720,877 N.Y.S.2d 261
• Parties: JANET ADDO, Respondent, v. NEIL MELNICK, M.D., et al., Appellants.
• Court: New York Supreme Court — Appellate Division

61 A.D.3d 453

877 N.Y.S.2d 261

2009 NY Slip Op 02720

JANET ADDO, Respondent, v. NEIL MELNICK, M.D., et al., Appellants.

5392N.

Appellate Division of the Supreme Court of New York, First Department.

Decided April 9, 2009.

Order, Supreme Court, Bronx County (Alan J. Saks, J.), entered February 20, 2008, which upon granting plaintiff's motion for reargument, denied defendants' motion for a change of venue from Bronx County to Westchester County, reversed, on the law, without costs, defendants' motion granted, and venue changed to Westchester County.

On reargument, the court denied defendants' motion because the alleged malpractice occurred in the Bronx. However, venue is based on the parties' residence (CPLR 503 [a]), not where the cause of action arose (Hitchoff v Air Brook Limousine, Inc., 26 AD3d 310 [2006]). The "residence" of a natural person is his or her abode, not office (see Friedman v Law, 60 AD2d 832 [1978]), and the individual defendant here resides in Westchester County. The corporate defendant also "resides" in Westchester. "The designation of a county as the location of a corporation's principal office in a certificate of incorporation is controlling in determining corporate residence for the purposes of venue" (Conway v Gateway Assoc., 166 AD2d 388, 389 [1990]), even if the corporation maintains an office or facility in another county (Altidort v Louis, 287 AD2d 669, 670 [2001]), and even if it is a professional corporation (see Della Vecchia v Daniello, 192 AD2d 415 [1993]).

In its original decision, the motion court properly found plaintiff's affidavit insufficient as proof of her residence because it contradicted her prior deposition testimony that she had moved from the Bronx to New Jersey prior to November 22, 2006, the date on which she commenced this action (see Nemeroff v Coby Group, 54 AD3d 649, 650-651 [2008]). In this regard, plaintiff had testified that she thought she moved to New Jersey on a Friday during the third week of November 2006 on what she thought was the 18th day of the month.^* While the dissent construes this testimony as an expression of uncertainty, we find it an admission. We look to Federal Rules of Evidence rule 801 (d) (2) (B), which defines a party's admission as "a statement of which the party has manifested an adoption or belief in its truth" (emphasis added). Inasmuch as the phrase "I think" is an expression of belief, we conclude that such an expression can be an admission. The binding effect of such an admission is illustrated by this Court's recent decision in McNeill v LaSalle Partners (52 AD3d 407 [2008]), which reads, in part, as follows: "The trial court also erred in precluding appellants from questioning plaintiff on cross-examination about his deposition testimony that the liquid on which he slipped might have been `encapsulate' (a milky liquid used in the abatement of asbestos) ... At his deposition, plaintiff testified that he thought the liquid on which he slipped `could be some kind of encapsulate, but I wasn't sure.' At trial, however, plaintiff testified that he had no idea what kind of liquid had caused his accident. Under these circumstances, appellants were entitled to question plaintiff about the deposition testimony in question, both for purposes of impeachment and to use the prior inconsistent testimony as evidence-in-chief that the liquid was encapsulate" (id. at 410 [emphasis added]).

Unquestionably an affidavit tailored to avoid the consequences of a deposition lacks evidentiary value (see Blackmon v Dinstuhl, 27 AD3d 241, 242 [2006]). For example, in Concepcion v Walsh (38 AD3d 317, 318 [2007]) we stated that: "[w]hile plaintiff's mother's affidavit asserts that there was peeling or chipping paint, her deposition testimony was that she did not know; accordingly, her affidavit lacks evidentiary value." Since plaintiff failed to submit documentary evidence (other than her own self-serving statement) supporting her claim that she resided in the Bronx when she commenced this action, and since this case does not involve conflicting affidavits, there is no need to hold a hearing as suggested by plaintiff and the dissent (see Martinez v Semicevic, 178 AD2d 228 [1991]; cf. Rivera v Jensen, 307 AD2d 229 [2003]). In this instance, the distinction the dissent draws between formal and informal admissions is of no moment. This is because plaintiff's deposition constituted the only evidence of plaintiff's place of residence albeit "some evidence" of same.

Concur — GONZALEZ, P.J., MAZZARELLI, SWEENY and DeGRASSE, JJ.

McGUIRE, J., dissents in a memorandum as follows:

Plaintiff commenced this medical malpractice action in the Bronx on November 22, 2006, predicating the Bronx venue on the assertion in the summons that she resided in the Bronx. Thereafter, defendants moved to change venue to Westchester. In relevant part, plaintiff's affidavit in opposition to the motion asserted as follows: "I now clearly recollect that I moved to New Jersey on November 24, 2006. I know that I moved the Friday after Thanksgiving which would be November 24, 2006." It is undisputed that the Friday after Thanksgiving that year fell on November 24th.

The majority concludes that "[i]n its original decision [granting defendants' motion to change venue], the motion court properly [rejected] plaintiff's affidavit[, which] contradicted her prior deposition testimony" (emphasis added). This conclusion is not only erroneous, its implications are profoundly important.

In her deposition, taken on June 28, 2007, plaintiff testified as follows:

"Q. How long have you been living at 38 Carnation Street in Bergenfield, New Jersey?

"A. I think from November.

"Q. November of 2006?

"A. 2006, yes.

"Q. What date in November did you move to Carnation Street?

"A. I think that was Friday.

"Q. Do you know the day of the week, the day in November, the 1st, 2nd[,] 3rd?

"A. I think middle week.

"Q. I'm talking about the day?

"A. The day. Oh, I think the third week.

"Q. Do you know the specific day?

"A. Friday.

"[PLAINTIFF'S COUNSEL]: Do you know if it was the 25th, 26th, 20th?

"A. I think that was the 18th or so?

"Q. You believe it was on a Friday?

"A. I think so." (Emphasis added.)

As is evident from these excerpts — no other portions of her testimony bear on the subject — plaintiff expressly stated her uncertainty concerning the date she moved to New Jersey. Only with regard to the month and day of the week did plaintiff make unqualified statements, testifying that she moved in November of 2006 and that she moved on a Friday, albeit after first indicating uncertainty that it was November and a Friday (but even as to the day of the week she went on to again express uncertainty). Consistent with that testimony, plaintiff averred in her affidavit that it was indeed a Friday in November 2006, namely, the Friday after Thanksgiving.

On the decisive question on this appeal, the date in November 2006 on which plaintiff moved out of the Bronx, the deposition excerpts quoted above expressly denote plaintiff's uncertainty. If plaintiff had unqualifiedly asserted in her deposition that she moved on November 18, her affidavit would be inconsistent with her testimony. Whether we properly could conclude that such an inconsistency justifies disregarding her affidavit entirely, presumably on the theory that it is inconceivable that she could have erred in her deposition, is a matter I need not address. The majority, however, should address an aspect of her deposition that is more significant than the fact that the affidavit is consistent with her testimony that she moved on a Friday in November. That is, plaintiff testified that she "th[ought]" she moved on a Friday in the "third week" of November. Although Friday November 24, 2006 was the fourth Friday in November of that year, it fell during the third, full week in November.

The crucial point is that a prior factual assertion that is tentative is not contradicted by a later statement that is definite; rather, the uncertain statement is clarified. We should not deprive plaintiff of her statutory right to designate the Bronx as the place of trial by imputing to her a contradiction where only a clarification can be found. Doing so is not only illogical, it is inconsistent with the principle that the function of the motion court is to identify and not resolve disputed issues of material fact (see generally Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]). On the basis of an illogical characterization of her affidavit, the majority deprives plaintiff of her statutory right without even giving her an opportunity to testify at a hearing and possibly impress the trier of fact with her demeanor and her explanation for her subsequent certainty concerning the date she moved. That is all the more unfortunate for two reasons: it is a matter of common human experience that some people are not particularly good at recalling dates, and it hardly is implausible that upon reflection plaintiff could have recalled that she still resided in the Bronx on Thanksgiving Day in 2006.

The majority is unpersuasive in also disparaging as "self-serving" plaintiff's sworn statement that she moved on November 24, 2006. All that fairly can be said is that this statement supports plaintiff's position. Of course, there would be no dispute about venue if plaintiff did not support her position in her affidavit. Moreover, a sworn assertion of fact by a party, unless conclusively refuted by documentary evidence, is sufficient to require a hearing (see Collins v Glenwood Mgt. Corp., 25 AD3d 447 [2006]). Despite the absence of any such documentary evidence from defendants, the majority puts the burden on plaintiff to come forward with documentary evidence supporting her sworn factual assertion of a residency in the Bronx through Thanksgiving 2006.

I agree with the majority that plaintiff's statement at her deposition that she thought she moved to New...