Fiallos v. N.Y. Univ. Hosp.

• Decision Date: 30 June 2011
• Citation: 85 A.D.3d 678,2011 N.Y. Slip Op. 05623,926 N.Y.S.2d 483
• Parties: Alexandra FIALLOS, etc., Plaintiff–Appellant,v.NEW YORK UNIVERSITY HOSPITAL, Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

85 A.D.3d 678
926 N.Y.S.2d 483
2011 N.Y. Slip Op. 05623

Alexandra FIALLOS, etc., Plaintiff–Appellant,
v.
NEW YORK UNIVERSITY HOSPITAL, Defendant–Respondent.

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

June 30, 2011.

[926 N.Y.S.2d 483]

Pollack, Pollack, Isaac & De Cicco, New York (Brian J. Isaac of counsel), for appellant.Martin Clearwater & Bell LLP, New York (Barbara D. Goldberg of counsel), for respondent.MAZZARELLI, J.P., SWEENY, DeGRASSE, FREEDMAN, ABDUS–SALAAM, JJ.

[926 N.Y.S.2d 484 , 85 A.D.3d 678]

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered on or about February 8, 2010, which granted defendant's motion for a change of venue, reversed, on the law and the facts, without costs, and the motion denied.

In making its motion, defendant assumed the burden of disproving plaintiff's Bronx County residence ( see e.g. Clarke v. Ahern Prod. Servs., 181 A.D.2d 514, 580 N.Y.S.2d 360 [1992] ). Counsel's affidavit by which he cites unspecified “investigative efforts” that revealed that someone other than plaintiff occupied the apartment amounts to mere hearsay and is insufficient to carry defendant's initial burden ( see Hurley v. Union Trust Co. of Rochester, 244 App.Div. 590, 280 N.Y.S. 474 [1935] ). Even if accepted, defendant's proof would fall far short of establishing that plaintiff did not live anywhere in Bronx County when this action was commenced. Accordingly, defendant's failure to meet its initial burden of making a prima facie showing of entitlement to relief makes it unnecessary to consider the sufficiency of plaintiff's opposition to the motion ( see e.g. Frees v. Frank & Walter Eberhart L.P. No.1, 71 A.D.3d 491, 492, 896 N.Y.S.2d 71 [2010] ).

All concur except SWEENY, J. who dissents in a memorandum as follows:SWEENY, J. (dissenting).

I would affirm the granting of the motion to change venue.

[85 A.D.3d 679] The burden is on the defendant, as the movant, to establish that plaintiff improperly designated Bronx County as the venue for this action ( see Garced v. Clinton Arms Assoc., 58 A.D.3d 506, 509, 874 N.Y.S.2d 18 [2009] ). This burden may, under appropriate circumstances, be satisfied by submitting counsel's sworn averment explaining why there are insufficient grounds for venue as laid ( see Torres v. Larsen, 195 A.D.2d 285, 286–287, 599 N.Y.S.2d 597 [1993] ). Although Torres concerned a CPLR 510(3) motion to change venue due to the inconvenience of witnesses, its reasoning extends to this CPLR...