Bennett v. Bennett

• Decision Date: 06 March 2008
• Docket Number: 503259.
• Citation: 853 N.Y.S.2d 398,49 A.D.3d 949,2008 NY Slip Op 01895
• Parties: SUSAN M. BENNETT, Respondent, v. JEFFREY H. BENNETT, Appellant.
• Court: New York Supreme Court — Appellate Division

49 A.D.3d 949

853 N.Y.S.2d 398

2008 NY Slip Op 01895

SUSAN M. BENNETT, Respondent, v. JEFFREY H. BENNETT, Appellant.

503259.

Appellate Division of the Supreme Court of the State of New York, Third Department.

Decided March 6, 2008.

Appeal from an order of the Supreme Court (Nolan, Jr., J.), entered April 19, 2007 in Saratoga County, which denied defendant's motion to change venue.

Peters, J.

Plaintiff commenced this action for a divorce in Saratoga County. Defendant filed a notice of appearance and then moved for a change of venue to St. Lawrence County where he resides and the marital residence is located. In opposition, plaintiff proffered, among other things, her affidavit, supported by documentary evidence, to support her contention that venue was properly placed in Saratoga County. Supreme Court denied defendant's motion and this appeal ensued.

We affirm. Plaintiff's affidavit detailed, among other things, that her son attends school in Saratoga County and that she works in such county, and her driver's license, tax returns, vehicle registration and insurance identification, along with various bills, reflect her primary residency in such county. Plaintiff shares this residence with her father and also has a temporary residency in Schenectady County.

Recognizing that a party may maintain multiple residences for venue purposes (see CPLR 503 [a]; Hammerman v Louis Watch Co., 7 AD2d 817, 818 [1958]; Bradley v Plaisted, 277 App Div 620, 621 [1951], lv denied 278 App Div 727 [1951]) and that to qualify as a residence a party "must stay there for some length of time and have the bona fide intent to retain the place as a residence with at least some degree of permanency" (Hammerman v Louis Watch Co., 7 AD2d at 818; see Neu v St. John's Episcopal Hosp., 27 AD3d 538, 538-539 [2006]), we find Supreme Court to have properly exercised its discretion in retaining venue in Saratoga County (see Manchester Tech. v Hansen, 6 AD3d 806, 807 [2004]; Frank v Martuge, 285 AD2d 938, 940 [2001]). As to defendant's contention that venue should be placed in St. Lawrence County pursuant to CPLR 507, we note that where, as here, there is a venue conflict, a court may make a discretionary determination to lay venue in a location appropriate "to at least one of the parties or claims" (CPLR 502; see Grumet v Pataki, 244 AD2d 31, 35 [1998], affd 93 NY2d 677 [1999]; Forde v Forde, 53 AD2d 779, 780 [1976]). We have reviewed and rejected defendant's remaining contentions as...