FILED: QUEENS COUNTY CLERK 07/23/2020 03:32 PM
`NYSCEF DOC. NO. 123
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`INDEX NO. 717677/2018
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`RECEIVED NYSCEF: 07/23/2020
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`Short Form Order
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`IA PART 32
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`Index No.: 717677/18
`Motion Date: 7/23/20
`Motion Cal. No.: 35
`Motion Seq. No.: 5
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`NEW YORK SUPREME COURT - QUEENS COUNTY
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`Present: Honorable RUDOLPH E. GRECO, JR.
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` Justice
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`Alexander Lifson,
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`Plaintiff,
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`-against-
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`Pascarella’s Towing Service, LLC, et al.,
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`Defendants.
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`The following numbered papers read on this motion by defendants Pascarella’s Towing Service, LLC and
`William Haskell to change the venue of the instant action, pursuant to CPLR 510.
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`NUMBERED
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`PAPERS
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`Notice of Motion-Affidavits-Exhibits….............................................
`Affirmation in Opposition-Affidavits-Exhibits……………………….
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`Upon the foregoing cited papers, it is ordered that this motion by defendants
`Pascarella’s Towing Service, LLC and William Haskell, pursuant to CPLR 510, is determined
`as follows:
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`Plaintiff, Alexander Lifson, commenced this action to recover for injuries he allegedly
`sustained in a trip-and-fall as a result of defective towing operations, which occurred on November 23,
`2015 on Fly Road at or near its intersection with Swanka Boulevard, Incorporated Village of East
`Syracuse, County of Onondaga, New York. Defendants Pascarella’s Towing Service, LLC and
`William Haskell served their answer, coupled with a Demand for Change of Venue, upon plaintiff’s
`attorneys; plaintiff’s attorneys did not consent. Defendants now move for an order changing the place
`of venue from Queens County to Onondaga County.
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` EF 83 - 94
` EF 95 - 121
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`Pursuant to CPLR 511(a), a defendant’s demand “for change of place of trial on the ground that
`the county designated for that purpose is not a proper county,” must be served prior to the answer or
`with the answer (CPLR 511[a]; see also Simon v Usher, 17 NY3d 625, 628 [2011]). CPLR 511(b)
`permits a defendant to “move to change the place of trial within fifteen days after service of the
`demand, unless within five days after such service plaintiff serves a written consent to change the place
`of trial to that specified by the defendant” (CPLR 511[b]; see also id.). CPLR 2103(b)(2) provides
`“where a period of time prescribed by law is measured from the service of a paper and service is by
`mail, five days shall be added to the prescribed period” (CPLR 2103[b][2]; see also id.).
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`Here, on December 19, 2018 defendants, by way of mail, served their demand to change venue
`with their answer. Plaintiff did not provide written consent to change venue within five (5) days of
`such service; instead, on December 26, 2018, plaintiff timely served a rejection of such demand.
`Therefore, applying the five-day-extension pursuant to CPLR 2103(b)(2), defendants were required to
`make a motion to change venue within twenty days after service of the demand, i.e., on or before
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`FILED: QUEENS COUNTY CLERK 07/23/2020 03:32 PM
`NYSCEF DOC. NO. 123
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`INDEX NO. 717677/2018
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`RECEIVED NYSCEF: 07/23/2020
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`2 of 2
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`2 of 2
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`Tuesday, January 8, 2019. Defendants motion to change venue was dated March 18, 2020 and e-filed
`on March 19, 2020. The Court finds that defendants failed to make a timely motion to change venue
`within the statutory requirements. Nevertheless, the Court finds that Queens County is a proper venue
`based on plaintiff’s residence at the time the action was commenced.
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`“To prevail on a motion pursuant to CPLR 510(1) to change venue, a defendant must show that
`the plaintiff’s choice of venue is improper, and also that the defendant’s choice of venue is proper”
`(Kidd v 22-11 Realty, LLC, 142 AD3d 488, 489 [2d Dept 2016], quoting Deas v Ahmed, 120 AD3d
`750, 751 [2d Dept 2014]; see CPLR 511[b]; Williams v Staten Island University Hospital, 179 AD3d
`869, 870 [2d Dept 2020]). Only if the defendant meets this initial burden, would the plaintiff be
`required to establish, in opposition, that the venue she selected was proper (see Deas, 120 AD3d at
`751; Williams, 179 AD3d at 870).
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`Pursuant to CPLR 503(a), the proper venue of an action is the county in which one of the
`parties resides, or if none of the parties reside in New York, then in any county designated by the
`plaintiff; furthermore, the Legislature amended said statute to allow cases to be brought in “the county
`in which a substantial part of the events or omissions giving rise to the claim occurred” (CPLR 503[a];
`see Demirovic v Performance Food Group, Inc., 170 AD3d 656, 658 [2d Dept 2019]). For the
`defendant to effect change of venue based on improper choice of venue, he must demonstrate that: (i)
`at the time the action was commenced, none of the parties resided in the county designated by the
`plaintiff (see Drayer-Arnow v Ambrosio & Company, Inc., 181 AD3d 651, 652 [2d Dept 2019];
`Demirovic, 170 AD3d at 658; Chehab v Roitman, 120 AD3d 736, 737 [2d Dept 2014]); and (ii) a
`substantial part of the events giving rise to the claim did not occur in the designated county (see CPLR
`503[a]).
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`The Court finds that the evidentiary submissions conclusively establish that plaintiff
`maintained a residence in Queens County at the time the action was commenced (see Belair Care
`Center, Inc. v Cool Insuring Agency, Inc., 180 AD3d 739, 742 [2d Dept 2020]; Drayer-Arnow, 181
`AD3d at 652; Demirovic, 170 AD3d at 658; Chehab, 120 AD3d at 737; Johnson v Finkelstein, 145
`AD3d 863, 864 [2d Dept 2016]). Moreover, defendants failed to demonstrate the requirements to be
`entitled to a discretionary change of venue (see Williams, 179 AD3d at 870-71; see O’Brien v Vassar
`Bros. Hosp., 207 AD2d 169, 171-74 [2d Dept 1995]).
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`Accordingly, defendants’ motion to change venue is denied; and it is further
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`ORDERED that plaintiff is directed to serve a copy of this order with notice of entry
`upon defendants, within 30 days of entry.
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`This constitutes the decision and order of this Court.
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`Dated: July 23, 2020
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