| Canaan v Costco Wholesale Membership, Inc. |
| 2008 NY Slip Op 02095 [49 AD3d 583] |
| March 11, 2008 |
| Appellate Division, Second Department |
| Rhina Canaan et al., Appellants-Respondents, v CostcoWholesale Membership, Inc., et al., Respondents-Appellants. |
—[*1] Thomas M. Bona, P.C., White Plains, N.Y. (James C. Miller and James E. Romer ofcounsel), for respondents-appellants.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Kings County (Lewis, J.), datedSeptember 29, 2006, as granted that branch of the defendants' motion which was for leave toreargue, and upon reargument, vacated its prior order dated June 2, 2006 granting the plaintiff'sprior motion to strike the defendants' answer, and thereupon denied that prior motion, and thedefendants cross-appeal, as limited by their brief, from so much of the order dated September 29,2006, as denied those branches of their motion which were for summary judgment dismissing thecomplaint insofar as asserted against the defendant Costco Wholesale Membership, Inc., doingbusiness as Costco Wholesale, Inc., and to change the venue of the action from Kings County toWestchester County.
Ordered that the order dated September 29, 2006 is affirmed insofar as appealed from; and itis further,
Ordered that the order dated September 29, 2006 is reversed insofar as cross-appealed from,on the law, those branches of the defendants' motion which were for summary judgmentdismissing the complaint insofar as asserted against the defendant Costco WholesaleMembership, [*2]Inc., doing business as Costco Wholesale, Inc.,and to change the venue of the action from Kings County to Westchester County are granted, andthe Clerk of the Supreme Court, Kings County, is directed to deliver to the Clerk of the SupremeCourt, Westchester County, all papers filed in this action and certified copies of all minutes andentries (see CPLR 511 [d]); and it is further,
Ordered that one bill of costs is awarded to the defendants.
The Supreme Court providently exercised its discretion in granting that branch of thedefendants' motion which was for leave to reargue (see Long v Gap, Inc., 35 AD3d 673 [2006]). Furthermore, uponreargument, the Supreme Court correctly vacated its order dated June 2, 2006, which struck thedefendants' answer. There was no showing that the defendants willfully or contumaciously failedto comply with the plaintiffs' requests for, or court orders directing, disclosure (see CPLR3126; Conciatori v Port Auth. of N.Y. &N.J., 46 AD3d 501 [2007]; SauTing Cheng v Prime Design Realty, Inc., 44 AD3d 644 [2007]; Resnick v Schwarzkopf, 41 AD3d573 [2007]). In addition, the plaintiffs' argument that the defendants' alleged spoliation ofevidence provided an independent ground for striking the answer was improperly raised for thefirst time in their reply papers, submitted on the underlying motion to strike (see Matter of Harleysville Ins. Co. vRosario, 17 AD3d 677, 677-678 [2005]). In any event, the remedy of striking thedefendants' pleading was not warranted in this case, as the alleged spoliation did not leave theplaintiffs "prejudicially bereft" of the means of presenting their claim of actual notice of thecondition that caused the injured plaintiff to fall (see Lamb v Maloney, 46 AD3d 857 [2007]). Accordingly, weaffirm the order insofar as appealed from.
As for the cross appeal, the defendants made a prima facie showing of entitlement tojudgment as a matter of law by demonstrating that the defendant Costco Wholesale Membership,Inc., doing business as Costco Wholesale, Inc. (hereinafter Costco Membership), did not own,control, occupy, maintain, manage, or possess the property where the injured plaintiff fell.Accordingly, it owed no duty to her (seeGalindo v Town of Clarkstown, 2 NY3d 633, 636 [2004]; Schwalb v Kulaski, 29 AD3d 563,564 [2006]; Usman v Alexander's RegoShopping Ctr., Inc., 11 AD3d 450, 451 [2004]). In opposition, the plaintiffs failed toraise a triable issue of fact (see generally Alvarez v Prospect Hosp., 68 NY2d 320[1986]). Therefore, the Supreme Court should have granted that branch of the defendants' motionwhich was for summary judgment dismissing the complaint insofar as asserted against CostcoMembership.
Since Costco Membership is the only party in this action whose presence supports venue inKings County, the remaining defendant, Costco Wholesale Corporation, Inc., doing business asCostco Wholesale, Inc. (hereinafter Costco Corporation) demonstrated that the venue of thisaction should be changed upon dismissal of the complaint against Costco Membership (see Clase v Sidoti, 20 AD3d 330,330-331 [2005]; Crew v St. Joseph'sMed. Ctr., 19 AD3d 205, 206 [2005]; Halina Yin Fong Chow v Long Is. R.R.,202 AD2d 154, 155 [1994]). Costco Corporation asked that the venue be changed toWestchester County. This action was commenced on February 13, 2004. At her deposition onFebruary 14, 2005 the injured plaintiff indicated that she had resided in Westchester County forthe past seven years. Thus, Westchester County is an appropriate venue, as that is the county inwhich the injured plaintiff resided at the time the action was commenced (see CPLR 503[a]). The injured plaintiff's contention that she resided in Bronx County at the time this actionwas commenced is unsupported by the evidence. While she testified at her deposition that shelived in Bronx County for seven or eight months in the year 2004, she did not state preciselywhen in that year she did so. Nor did she submit an affidavit clarifying the issue in response tothat branch of the motion which [*3]was to change venue. Underthe circumstances, we agree with Costco Corporation that venue should be changed toWestchester County.
Accordingly, we reverse the order insofar as cross-appealed from, and grant those branchesof the defendants' motion which were for summary judgment dismissing the complaint insofar asasserted against Costco Membership and to change the venue of the action to WestchesterCounty.
The plaintiffs' remaining contentions are without merit. Mastro, J.P., Florio, Miller andDickerson, JJ., concur.