| Garced v Clinton Arms Assoc. |
| 2009 NY Slip Op 00240 [58 AD3d 506] |
| January 20, 2009 |
| Appellate Division, First Department |
| Troy Garced, Appellant, v Clinton Arms Associates et al.,Respondents. |
—[*1] Weiner, Millo & Morgan, LLC, New York (Alissa A. Mendys of counsel), forrespondents.
Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered January 16,2008, which, insofar as appealable, denied plaintiff's motion to renew a prior order, same courtand Justice, entered on or about September 5, 2007, insofar as appealed from as limited by thebriefs, granting the motion of defendant Clinton Arms Associates (Clinton) to change venuefrom Bronx County to Nassau County, affirmed, without costs. Appeal from the September 5,2007 order, unanimously dismissed, without costs, as superseded by the appeal from the January16, 2008 order.
Plaintiff sustained severe burns to his neck on premises allegedly controlled by Clinton afterhe passed out from a heroin overdose and came into contact with an uninsulated hot water pipe.A psychosocial assessment conducted in connection with his admission to Jacobi Hospital onMarch 18, 2006 states that he "lives in a first floor apartment with his mother . . .spent four years in prison on drug charges and has been on parole for the last two years."Department of Correctional Services records, however, reflect that plaintiff had been releasedfrom custody the previous day, having been committed for a parole violation on December 29,2005. Plaintiff was again in custody at the time he commenced this action by filing a summonsand complaint on March 16, 2007. He placed venue in Bronx County on the basis of hisresidence immediately prior to his latest period of incarceration, purportedly the apartmentoccupied by his mother where his injury was sustained.
Clinton moved to change venue to Nassau County, its principal place of business (CPLR 503[d]), on the ground that venue was improperly laid. Clinton's application was supported by itsown records as well as the affidavits of plaintiff's mother dated April 1, 2005 and April 6, 2007,her letter dated April 27, 2006 and section 8 housing assistance certifications dating back to1999, all of which reflect that she was the only person residing in the apartment.
In opposition, plaintiff submitted records from Jacobi Hospital, where he was admitted forfive days of treatment, including a skin graft, and his affidavit stating that, prior to incarceration,he had been residing in his mother's apartment. He argued that the motion should be deniedbecause Clinton failed to prove that he lived elsewhere.
In reply, Clinton countered that the full extent of its burden was to demonstrate plaintiff's[*2]lack of residence in the county designated for trial. Clintonportrayed plaintiff's affidavit as unsupported and self-serving, noting that, on admission to JacobiHospital, plaintiff had given the name "Troy Pagan," not "Troy Garced." Finally, Clintoncontended that plaintiff had failed to rebut his mother's numerous statements that she residedalone.
Plaintiff submitted further papers, denominated a surreply, including additional records fromJacobi Hospital and records from Lenox Hill Hospital, where he was briefly admitted in earlyApril 2006 for treatment for a skin infection at the site of his skin graft. He maintained that anyconfusion over his identity in Jacobi Hospital records was attributable to his brother's surname,which is "Pagan." Plaintiff noted that those records had been corrected to reflect his true name.
Following Supreme Court's grant of a change of venue "for good cause shown," plaintiffbrought a motion to renew and reargue, attaching a New York State identity card issued July 22,2003 that had expired in October 2003, a pharmacy receipt dated April 10, 2006 and a mobilephone bill dated July 1, 2005. Plaintiff stated that his mother had been unable to locate thesedocuments for him because she had been ill at the time he was preparing his response to theoriginal motion.
Supreme Court denied plaintiff's motion in all respects. The court noted that he had failedeither to demonstrate that the additional documents were previously unavailable to him or tooffer a reasonable excuse for his omission to submit them in opposition to Clinton's originalmotion.
There is no dispute that the evidence submitted by Clinton in support of its motiondemonstrated that plaintiff failed to establish residency in the Bronx. What divides us is whetherthe evidence adduced by plaintiff in opposition to the motion is sufficient to raise a question offact concerning his residence at his mother's apartment.
As the parties recognize, the proper venue is the county in which plaintiff resided prior to hisincarceration in the spring of 2007 (see Matter of Corr v Westchester County Dept. of SocialServs., 33 NY2d 111, 115 [1973]; Farrell v Lautob Realty Corp., 204 AD2d 597,598 [1994]). The difficulty with plaintiff's allegation that he lived with his mother is the highlyregulated nature of the apartment in which she resides. In particular, the approval of the relevanthousing authority is required "to add any other family member as an occupant of the unit" (24CFR 982.551 [h] [2]), as mandated by Department of Housing and Urban Developmentregulations (24 CFR 966.4 [a] [1] [v]; see Matter of Abdil v Martinez, 307 AD2d 238,239 [2003]). Even assuming that plaintiff is not legally barred from claiming the apartment as hisresidence (see Katz Park Ave. Corp. vJagger, 11 NY3d 314, 317 [2008] [nonresident status under Immigration andNationality Act precludes New York primary residence]), the record is devoid of any indicationthat plaintiff sought the necessary approval to occupy the apartment, such as an application byhis mother to add him as a relative and member of her household. The record is also bereft ofaffidavits from neighbors or building personnel that might support plaintiff's presence in theapartment (cf. Morrisania II Assoc. v Harvey, 139 Misc 2d 651, 654 [1988]). Indeed, thedocumentary evidence concerning his mother's tenancy flatly contradicts plaintiff's residence inthe apartment, specifically, her own sworn and unsworn statements and the recertificationstatements required to be obtained by Clinton in the course of its participation in the section 8program (see id. at 660-661).
Plaintiff's opposition to the original motion consisted merely of his conclusory affidavit anda single page from the hospital records indicating that he arrived at, and was admitted to, [*3]Jacobi Hospital on March 18, 2006 and that he provided thehospital with his mother's address. Neither the fact that plaintiff sustained injury while at hismother's apartment nor his occasional presence in the Bronx for treatment during the followingmonth is dispositive of the determination of residence and, thus, venue. The first page of thehospital record establishes, at most, that he was present at his mother's apartment on the date ofinjury. But an isolated visit to his mother upon release from custody does not suffice toovercome her consistent averments that she was the sole occupant of the apartment (seeFurlow v Braeubrun, 259 AD2d 417 [1999]). As to plaintiff's contention that Clinton failedto establish that he resided in a different county, we note that a defendant's burden on anapplication to change venue is limited to establishing that the designated county is improper(CPLR 510 [1]); the movant is not obliged to offer proof of the plaintiff's actual abode.
The practice of filing a surreply was repudiated by this Court in Ritt v Lenox HillHosp. (182 AD2d 560, 562 [1992]; see also Lumbermens Mut. Cas. Co. v Morse ShoeCo., 218 AD2d 624, 626 [1995]), which has been applied to bar consideration of suchsubmissions (see e.g. Pinkow v Herfield, 264 AD2d 356 [1999]; cf. Sanford v 27-29W. 181st St. Assn., 300 AD2d 250, 251 [2002]). Even if we were to accept plaintiff'sadditional evidence, which we decline to do (CPLR 2214 [b], [c]), it establishes only that he wasadmitted for five days of treatment at Jacobi Hospital and, several weeks later, for two days oftreatment at Lenox Hill Hospital, again supplying his mother's address and naming her as his"primary contact."
To the extent plaintiff's subsequent application can be deemed a motion to renew, theadditional evidence submitted is uncompelling. A pharmacy receipt dated April 10, 2006 is theonly documentary evidence remotely contemporaneous with plaintiff's postaccidentincarceration, predating it by nearly a year. That plaintiff may have used the subject apartment asa billing address hardly serves to demonstrate residence. Concur—Tom, J.P., Nardelli,Sweeny and DeGrasse, JJ.
McGuire, J., dissents in a memorandum as follows: On March 18, 2006, plaintiff allegedlysuffered burn injuries when he passed out in the bathroom and came into contact with hot waterpipes in apartment 1L in a building at 2160 Clinton Avenue in the Bronx. The building is ownedby defendant Clinton Arms Associates. Plaintiff was subsequently arrested and convicted of adrug offense and incarcerated. While incarcerated, plaintiff commenced this action in March2007 against the building's owner to recover damages for the injuries he sustained as a result ofthe incident. Plaintiff, asserting in both the summons and the complaint that he resided in theClinton Avenue apartment, commenced the action in the Bronx.
The owner moved to change venue as of right, arguing that plaintiff did not reside in theClinton Avenue apartment (see CPLR 510 [1]); the owner sought to change venue fromthe Bronx to Nassau County, the county in which it has its principal office (see CPLR503 [d]). In support of its motion, the owner submitted public housing (Section 8) documentsexecuted by plaintiff's mother that indicated that she was the only occupant of the apartment. Theowner also submitted the affidavit of the president of its general partner who averred that, upon asearch of the general partner's records, the only tenant listed in the apartment was plaintiff'smother. Included in the owner's motion papers were plaintiff's medical records regarding thetreatment he received following the incident.[*4]
In opposition, plaintiff submitted his own affidavit inwhich he stated that "I am currently incarcerated [in an upstate] Correctional Facility. Prior tomy incarceration, I last resided at 2160 Clinton Ave., Apt. 1L, Bronx, New York, with mymother. I resided at that location on the date of the accident, March 18, 2006, until later in theyear, when I was arrested and incarcerated. When admitted to Jacobi Hospital on the day of theaccident with severe burns, I gave my address as 2160 Clinton Ave., Apt. 1L, Bronx, NY." Themedical records submitted by the owner indicate that plaintiff did give the hospital staff theaddress of the Bronx apartment as his residence. Notations in those records also indicate thatplaintiff told a social worker at the hospital that he resided in the apartment with his mother.While most of the records are labeled as being for "Troy Pagan," a notation in the social worker'sdischarge plan and patient assessment states that the "correct name" of the patient is "TroyGarced."
Supreme Court granted the motion and directed that venue be changed to Nassau County.Plaintiff subsequently moved for leave to renew the owner's motion, submitting documentsindicating that he resided in the apartment. Supreme Court denied plaintiff's motion, finding thatplaintiff failed both to demonstrate that the documents were not known to him when the owner'smotion was made and to offer a valid excuse for failing to produce those documents inopposition to the owner's motion. Plaintiff appealed from both orders.
A defendant seeking to change venue as of right under CPLR 510 (1) has the burden ofdemonstrating that, at the time the action was commenced, the plaintiff did not reside in thecounty plaintiff designated (see Clarke v Ahern Prod. Servs., 181 AD2d 514 [1992];see generally CPLR 503 [a]). Since plaintiff was incarcerated at the time he commencedthis action, for the purposes of determining his residence we must look to the residence he hadprior to his incarceration (see Farrell v Lautob Realty Corp., 204 AD2d 597 [1994];see also Matter of Corr v Westchester County Dept. of Social Servs., 33 NY2d 111 [1973]).
The Section 8 paperwork and affidavit of the president of the owner's general partner weresufficient to satisfy the owner's initial burden of demonstrating that plaintiff did not reside in theBronx apartment prior to his incarceration.
In opposition, plaintiff raised an issue of fact warranting a hearing. Plaintiff, whoconsistently asserted that he had only one residence (the apartment), expressly averred that helived in the apartment with his mother on the date of the accident in March 2006 through the datehe was arrested and incarcerated later in 2006. He also averred that he told the hospital staff thathe resided in the apartment. Under these circumstances, I fail to see how this affidavit isconclusory (cf. Furlow v Braeubrun, 259 AD2d 417 [1999] ["Plaintiffs' conclusoryaffidavits attesting to the Bronx residency of one of them, unsupported by documentationprobative of such residency, were insufficient to rebut defendant's proof in the form of hospitaland motor vehicle records showing that both plaintiffs reside in Westchester County" (citationomitted)]; Martinez v Semicevic, 178 AD2d 228 [1991] [plaintiff's conclusory affidavitthat he had two residences, one of which was in the county in which he commenced the action,was insufficient to raise an issue of fact because it was unsupported by documentary evidenceand lacking details as to how long he resided in the designated county and how he divided histime between the two alleged residences]).
In any event, plaintiff's affidavit is not the only evidence substantiating his claim that heresided in the apartment. Plaintiff's medical records, submitted by the owner in support of its[*5]motion, indicate that he resided in the apartment with hismother prior to his incarceration. Notably, moreover, the incident giving rise to this actionoccurred in the apartment. The majority exalts form over substance with its apparent conclusionthat plaintiff's medical records should not be considered because he submitted a few such recordsin surreply. As noted above, in its initial motion papers Clinton Arms submitted portions ofplaintiff's medical records, including records that indicate that he resided in his mother'sapartment at the time he was injured. Obviously, no purpose is served by requiring plaintiff tosubmit the same records in his opposition that were submitted by Clinton Arms in its motionpapers.
The majority's conclusion that the Section 8 documents submitted by defendant establish, asa matter of law, that plaintiff did not reside in the apartment prior to his incarceration is simplywrong. Included within the Section 8 documents is an unsworn letter by the mother dated April27, 2006, asserting that she "[l]ives alone in the apartment." The documents also include swornletters from plaintiff's mother, dated April 1, 2005, approximately one year prior to both theaccident and plaintiff's subsequent incarceration, and April 6, 2007, more than a year after theaccident and plaintiff's incarceration, asserting that she lived alone in the apartment. Asdiscussed above, given plaintiff's incarceration after the accident, the central issue is not whetherplaintiff was residing in the apartment consistently or inconsistently with Section 8 requirements,but whether, as plaintiff swore in his affidavit, he was residing in the apartment prior to hisincarceration. Unfortunately, the majority simply credits the mother's Section 8 documents,which plaintiff did not sign, because such housing is "highly regulated." Of course, that someoneother than an authorized tenant might reside in a Section 8 unit is not only possible but ratherunremarkable.[FN*]The decisive point is that the mother's Section 8 documents do not conclusively establishanything, let alone that plaintiff was not residing in the apartment at the time of the accidentthrough his subsequent incarceration.
The majority's most glaring and crucial error is its characterization of plaintiff's affidavit asconclusory. As discussed above, in that affidavit he swore that "[p]rior to my incarceration, I lastresided at 2160 Clinton Ave., Apt. 1L, Bronx, New York, with my mother. I resided at thatlocation on the date of the accident, March 18, 2006, until later in the year, when I was arrestedand incarcerated." Obviously, this affidavit makes factual assertions about where plaintiffresided and when he resided there. That the affidavit itself was not accompanied by documentaryevidence is irrelevant. Similarly, that plaintiff did not submit "affidavits from neighbors or [*6]building personnel that might support [his] presence in theapartment" is irrelevant. No principle of law requires plaintiff to bear that burden and themajority's only support for its conclusion that he was so required is a "cf." citation to a CivilCourt decision in a landlord-tenant matter. Moreover, there is no basis in the law—themajority unsurprisingly cites nothing—for concluding that plaintiff's sworn assertionswere conclusively refuted by the sworn and unsworn assertions to the contrary submitted by theowner.
At bottom, based on the submissions before it on the owner's motion, Supreme Court shouldhave held a hearing prior to determining whether venue was properly laid (see generally Collins v Glenwood Mgt.Corp., 25 AD3d 447 [2006]; Rivera v Jensen, 307 AD2d 229, 230 [2003]). Themajority therefore errs in making several credibility determinations, e.g., that plaintiff wasinjured in the apartment during "an isolated visit to his mother upon [his] release from custody,"that the mother was the sole occupant of the apartment, based on the paper submissions. Themajority's disposition is at odds with settled precedent, which dictates that "[w]here resolution of. . . a factual issue ultimately depends on evaluating the credibility of the affiants, ahearing should be held to resolve any inconsistencies" (Rivera, 307 AD2d at 230).Concomitantly, the majority errs in disturbing plaintiff's statutory right to lay venue in the countyof his residence (see CPLR 503 [a]; Baccigalupi v Michel, 170 AD2d 635[1991]).
Since I believe that the order granting the owner's motion should be reversed, I need not anddo not decide the issue of whether the order denying plaintiff's motion for leave to renew wasproperly denied; under my view the appeal from the order denying plaintiff's motion for leave torenew would be rendered academic.
Footnote *: The majority's insinuation thatplaintiff might be barred from claiming that he lived in the apartment is wrong. Plaintiff did notsign any of the Section 8 documents submitted by Clinton Arms in support of its motion andthere is no suggestion that he reviewed (let alone agreed with) those documents before hismother tendered them to Clinton Arms. The majority's reliance on Katz Park Ave. Corp. v Jagger (11NY3d 314 [2008]) is woefully misplaced. The issue there was whether a person was barredfrom claiming that her primary residence was a Manhattan rent stabilized apartment given thatshe was a foreign national who was in the United States on a tourist's visa. In contrast, the issuehere is whether one who claims to have resided in a particular apartment is barred from soclaiming based on the representations of another who lived in the unit.