Mejia v. Nanni

Decision Date21 August 2003
PartiesJAMES MEJIA et al., Respondents,<BR>v.<BR>VINCENT A. NANNI et al., Appellants.
CourtNew York Supreme Court — Appellate Division

Concur — Nardelli, J.P., Mazzarelli, Saxe, Rosenberger and Friedman, JJ.

The subject motor vehicle accident occurred in Westchester County, where plaintiffs reside. According to the police accident report, defendant wife, who had been the driver in the incident, told the investigating officer that she lived at an address in Westchester County, and the automobile's registration and insurance information disclosed that defendant husband lived at the same address in Westchester County. Nonetheless, plaintiffs brought this action in Bronx County, purportedly because defendant husband resided at an address in the Bronx. When defendants initially moved to change venue to Westchester County based solely on the police accident report, plaintiffs opposed the motion by submitting undated telephone directory listings for an individual with the same name as defendant husband at a Bronx address. The initial motion to change venue was denied on the ground that defendant husband failed to submit any affidavit or documentary evidence establishing his residence in Westchester County.

Defendants evidently did not appeal from the denial of their initial venue motion. They did, however, make a motion purporting to seek reargument, in support of which they submitted affidavits attesting to their residence in Westchester County at all relevant times, as well as invoices from Con Edison and AT&T addressed to them in Westchester County. Defendant husband explained that his late father, who had the same name, had formerly lived at the Bronx County address set forth in the telephone directory listings submitted by plaintiffs. The IAS court denied the second motion as well, noting that it was untimely if treated as a motion for reargument (since served outside the time limit of CPLR 2221 [d] [3]). The IAS court further noted that, if the motion was treated as one for renewal, "as it really is," it could not be granted because defendants suggested no excuse for their failure to offer the newly submitted evidence in support of the initial motion.

We reverse and grant the change of venue. We agree with the IAS court that defendants' second motion, denominated as one for reargument, was actually a motion for renewal, since it was based on evidence not presented on the prior motion, i.e., defendants' affidavits and the invoices addressed to their Westchester...

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