| Addo v Melnick |
| 2009 NY Slip Op 02720 [61 AD3d 453] |
| April 9, 2009 |
| Appellate Division, First Department |
| Janet Addo, Respondent, v Neil Melnick, M.D., et al.,Appellants. |
—[*1] McMahon, McCarthy & Verrelli, Bronx (Patrick J. Rooney of counsel), forrespondent.
Order, Supreme Court, Bronx County (Alan J. Saks, J.), entered February 20, 2008, whichupon granting plaintiff's motion for reargument, denied defendants' motion for a change of venuefrom Bronx County to Westchester County, reversed, on the law, without costs, defendants'motion granted, and venue changed to Westchester County.
On reargument, the court denied defendants' motion because the alleged malpracticeoccurred in the Bronx. However, venue is based on the parties' residence (CPLR 503 [a]), notwhere the cause of action arose (Hitchoff v Air Brook Limousine, Inc., 26 AD3d 310 [2006]). The"residence" of a natural person is his or her abode, not office (see Friedman v Law, 60AD2d 832 [1978]), and the individual defendant here resides in Westchester County. Thecorporate defendant also "resides" in Westchester. "The designation of a county as the locationof a corporation's principal office in a certificate of incorporation is controlling in determiningcorporate residence for the purposes of venue" (Conway v Gateway Assoc., 166 AD2d388, 389 [1990]), even if the corporation maintains an office or facility in another county(Altidort v Louis, 287 AD2d 669, 670 [2001]), and even if it is a professionalcorporation (see Della Vecchia v Daniello, 192 AD2d 415 [1993]).
In its original decision, the motion court properly found plaintiff's affidavit insufficient asproof of her residence because it contradicted her prior deposition testimony that she had movedfrom the Bronx to New Jersey prior to November 22, 2006, the date on which she commencedthis action (see Nemeroff v CobyGroup, 54 AD3d 649, 650-651 [2008]). In this regard, plaintiff had testified that shethought she moved to New Jersey on a Friday during the third week of November 2006 on whatshe thought was the 18th day of the month.[FN*]While the dissent construes this testimony as an expression of uncertainty, we find it anadmission. We look to Federal Rules of Evidence rule 801 (d) (2) (B), which defines a party'sadmission as "a statement of which the party has manifested an adoption or belief in itstruth" (emphasis added). Inasmuch as the phrase "I think" is an expression of belief, we concludethat such an expression can be an admission. The binding effect of such an admission isillustrated by this Court's recent decision in McNeill v [*2]LaSalle Partners (52AD3d 407 [2008]), which reads, in part, as follows: "The trial court also erred in precludingappellants from questioning plaintiff on cross-examination about his deposition testimony thatthe liquid on which he slipped might have been 'encapsulate' (a milky liquid used in theabatement of asbestos) . . . At his deposition, plaintiff testified that he thoughtthe liquid on which he slipped 'could be some kind of encapsulate, but I wasn't sure.' At trial,however, plaintiff testified that he had no idea what kind of liquid had caused his accident.Under these circumstances, appellants were entitled to question plaintiff about the depositiontestimony in question, both for purposes of impeachment and to use the prior inconsistenttestimony as evidence-in-chief that the liquid was encapsulate" (id. at 410[emphasis added]).
Unquestionably an affidavit tailored to avoid the consequences of a deposition lacksevidentiary value (see Blackmon vDinstuhl, 27 AD3d 241, 242 [2006]). For example, in Concepcion v Walsh (38 AD3d317, 318 [2007]) we stated that: "[w]hile plaintiff's mother's affidavit asserts that there waspeeling or chipping paint, her deposition testimony was that she did not know; accordingly, heraffidavit lacks evidentiary value." Since plaintiff failed to submit documentary evidence (otherthan her own self-serving statement) supporting her claim that she resided in the Bronx when shecommenced this action, and since this case does not involve conflicting affidavits, there is noneed to hold a hearing as suggested by plaintiff and the dissent (see Martinez vSemicevic, 178 AD2d 228 [1991]; cf. Rivera v Jensen, 307 AD2d 229 [2003]). Inthis instance, the distinction the dissent draws between formal and informal admissions is of nomoment. This is because plaintiff's deposition constituted the only evidence of plaintiff'splace of residence albeit "some evidence" of same. Concur—Gonzalez, P.J., Mazzarelli,Sweeny and DeGrasse, JJ.
McGuire, J., dissents in a memorandum as follows: Plaintiff commenced this medicalmalpractice action in the Bronx on November 22, 2006, predicating the Bronx venue on theassertion in the summons that she resided in the Bronx. Thereafter, defendants moved to changevenue to Westchester. In relevant part, plaintiff's affidavit in opposition to the motion asserted asfollows: "I now clearly recollect that I moved to New Jersey on November 24, 2006. I know thatI moved the Friday after Thanksgiving which would be November 24, 2006." It is undisputedthat the Friday after Thanksgiving that year fell on November 24th.
The majority concludes that "[i]n its original decision [granting defendants' motion to changevenue], the motion court properly [rejected] plaintiff's affidavit[, which] contradicted herprior deposition testimony" (emphasis added). This conclusion is not only erroneous, itsimplications are profoundly important.
In her deposition, taken on June 28, 2007, plaintiff testified as follows:
"q. How long have you been living at 38 Carnation Street in Bergenfield, New Jersey?[*3]
"a. Ithink from November.
"q. November of 2006?
"a. 2006, yes.
"q. What date in November did you move to Carnation Street?
"a. I think that was Friday.
"q. Do you know the day of the week, the day in November, the 1st, 2nd[,] 3rd?
"a. I think middle week.
"q. I'm talking about the day?
"a. The day. Oh, I think the third week.
"q. Do you know the specific day?
"a. Friday.
"[plaintiff's counsel]: Do you know if it was the 25th, 26th, 20th?
"a. I think that was the 18th or so?
"q. You believe it was on a Friday?
"a. I think so." (Emphasis added.)
As is evident from these excerpts—no other portions of her testimony bear on thesubject—plaintiff expressly stated her uncertainty concerning the date she moved to NewJersey. Only with regard to the month and day of the week did plaintiff make unqualifiedstatements, testifying that she moved in November of 2006 and that she moved on a Friday,albeit after first indicating uncertainty that it was November and a Friday (but even as to the dayof the week she went on to again express uncertainty). Consistent with that testimony, plaintiffaverred in her affidavit that it was indeed a Friday in November 2006, namely, the Friday afterThanksgiving.
On the decisive question on this appeal, the date in November 2006 on which plaintiffmoved out of the Bronx, the deposition excerpts quoted above expressly denote plaintiff'suncertainty. If plaintiff had unqualifiedly asserted in her deposition that she moved on November18, her affidavit would be inconsistent with her testimony. Whether we properly could concludethat such an inconsistency justifies disregarding her affidavit entirely, presumably on the theorythat it is inconceivable that she could have erred in her deposition, is a matter I need not address.The majority, however, should address an aspect of her deposition that is more significant thanthe fact that the affidavit is consistent with her testimony that she moved on a Friday inNovember. That is, plaintiff testified that she "th[ought]" she moved on a Friday in the "thirdweek" of November. Although Friday November 24, 2006 was the fourth Friday in November ofthat year, it fell during the third, full week in November.
The crucial point is that a prior factual assertion that is tentative is not contradicted by a laterstatement that is definite; rather, the uncertain statement is clarified. We should not depriveplaintiff of her statutory right to designate the Bronx as the place of trial by imputing to her acontradiction where only a clarification can be found. Doing so is not only illogical, it isinconsistent with the principle that the function of the motion court is to identify and not resolvedisputed issues of material fact (see generally Sillman v Twentieth Century-Fox FilmCorp., 3 NY2d 395 [1957]). On the basis of an illogical characterization of her affidavit, themajority deprives plaintiff of her statutory right without even giving her an opportunity to testifyat a hearing and possibly impress the trier of fact with her demeanor and her explanation for hersubsequent certainty concerning the date she moved. That is all the more unfortunate for two[*4]reasons: it is a matter of common human experience thatsome people are not particularly good at recalling dates, and it hardly is implausible that uponreflection plaintiff could have recalled that she still resided in the Bronx on Thanksgiving Day in2006.
The majority is unpersuasive in also disparaging as "self-serving" plaintiff's sworn statementthat she moved on November 24, 2006. All that fairly can be said is that this statement supportsplaintiff's position. Of course, there would be no dispute about venue if plaintiff did not supporther position in her affidavit. Moreover, a sworn assertion of fact by a party, unless conclusivelyrefuted by documentary evidence, is sufficient to require a hearing (see Collins v Glenwood Mgt. Corp.,25 AD3d 447 [2006]). Despite the absence of any such documentary evidence fromdefendants, the majority puts the burden on plaintiff to come forward with documentaryevidence supporting her sworn factual assertion of a residency in the Bronx throughThanksgiving 2006.
I agree with the majority that plaintiff's statement at her deposition that she thought shemoved to New Jersey on a Friday during the third week of November 2006, on what she thoughtwas November 18th, is an admission. I disagree, however, with the majority's conclusion thatthis admission conclusively established that plaintiff moved to New Jersey before shecommenced this action on November 22, 2006.
Judicial admissions take one of two forms, formal or informal. Formal judicial admissionstake the place of evidence and are conclusive evidence of the facts admitted (People vBrown, 98 NY2d 226, 232 n 2 [2002], citing Prince, Richardson on Evidence § 8-215,at 523 [Farrell 11th ed]). However, an admission will only be characterized as "formal" wherethe party who made the admission conceded the truth of a fact alleged by the other party(Prince, Richardson on Evidence § 8-215, at 523). Examples of formal judicial admissionsinclude: (1) admissions of fact made pursuant to CPLR 3123, (2) facts admitted pursuant to astipulation, (3) facts admitted in open court, such as a plea in a criminal proceeding, and (4) factsadmitted in a formal pleading (Prince, Richardson on Evidence § 8-215, at 523-524).
On the other hand, informal judicial admissions are facts incidentally admitted during thecourse of a judicial proceeding (Prince, Richardson on Evidence § 8-219, at 529). Aninformal judicial admission is not conclusive of the fact "admitted," but rather is merely someevidence of that fact (People v Brown, 98 NY2d at 232; People v Rivera, 45NY2d 989 [1978]; Prince, Richardson on Evidence § 8-219, at 530). A classic example ofan informal judicial admission is a statement made by a party at a deposition (Prince, Richardsonon Evidence § 8-219, at 530; see also Matter of Union Indem. Ins. Co. of N.Y., 89NY2d 94, 103 [1996] [statement made in affidavit]; People v Rivera, supra[statement made in affidavit]; BajeRealty Corp. v Cutler, 32 AD3d 307 [2006] [statement made in affidavit]).
Here, plaintiff did not concede that she moved to New Jersey on a Friday during thethird week of November 2006, on what she thought was November 18th. Rather, she testifiedthat she "thought" and "believe[d]" that she moved to New Jersey at that time, an incidentaladmission. Given the absence of a concession by plaintiff—the sine qua non of a formaljudicial admission—the majority errs in according plaintiff's informal judicial admissionconclusive effect.
The principal case on which the majority relies, McNeill v LaSalle Partners (52 AD3d 407 [2008]), supports myposition. In McNeill, the plaintiff slipped and fell on a liquid substance on a floor of theconstruction site at which he was working. The plaintiff commenced a Labor Law action againstthe owner of the premises and the construction manager; those defendants commenced athird-party action against the asbestos abatement subcontractor for contribution or [*5]indemnification. At trial, the plaintiff testified that he had no ideawhat kind of liquid he slipped on. At his deposition, however, the plaintiff testified that hethought the liquid on which he slipped "could be some kind of encapsulate [i.e., a liquid used inasbestos abatement projects], but I wasn't sure." Supreme Court precluded the owner andconstruction manager from questioning the plaintiff about his deposition testimony, which wasclearly inconsistent with his trial testimony, and dismissed the owner and construction manager'sthird-party claims against the subcontractor.
We reversed and ordered a new trial, finding that the owner and construction manager wereentitled to question the plaintiff about his deposition testimony, and that the owner andconstruction manager could use the deposition testimony both to impeach the plaintiff and asevidence-in-chief. Consistent with the well-established principle that an incidental admissionmade by a party during the course of a judicial proceeding is an informal judicial admission thatis only some evidence of the fact admitted, we remanded for a new trial.
The majority's reliance on Martinez v Semicevic (178 AD2d 228 [1991]) ismisplaced. There, the plaintiff did not claim that he resided both in the Bronx and in Manhattanuntil after defendant moved to change venue and then advanced that claim through counsel. Theplaintiff did not submit an affidavit until after the motion to change venue was granted, and whenhe moved for reargument and renewal. Under these very different circumstances, this Courtrelied in part on the plaintiff's failure to submit documentary evidence supporting his assertionthat he in fact maintained a residence in the Bronx. The understandable cynicism about the"belated[ ] . . . affidavit" in Martinez v Semicevic (id. at 229) is notwarranted here.
Relatedly, the majority errs in completely disregarding plaintiff's affidavit on the ground thatit was "tailored to avoid the consequences of [her] deposition [and] lacks evidentiary value." Aswe have stated, "courts have occasionally disregarded affidavits or other evidence submitted inopposition to such a motion [for summary judgment] where they directly contradict theplaintiff's own version of the accident and are plainly tailored to avoid dismissal of the action"(Branham v Loews Orpheum Cinemas,Inc., 31 AD3d 319, 324 [2006] [emphasis added]). The affidavit at issue in Branhampresented "one of those rare occasions where such evidence must be disregarded by thisCourt" (id.). Here, the affidavit does not contradict, let alone "directly contradict,"plaintiff's deposition.
To repeat the decisive point, one the majority does not come to grips with: a prior factualassertion that is tentative is not contradicted by a later statement that is definite. Accordingly,this is not one of those "rare occasions" where an affidavit must be disregarded as "plainlytailored" to avoid an adverse result. As noted above, the majority deprives plaintiff of a statutoryright by exercising a power it does not have (Sillman, 3 NY2d 395 [1957]) when it finds,despite the absence of the requisite direct contradiction, that plaintiff's affidavit was "[plainly]tailored."
Far more is at stake on this appeal than the erroneous deprivation of plaintiff's statutoryright. I am confident the bar will appreciate what the majority does not: its position that a partycan be conclusively bound by a factual statement made in a deposition cannot rationally beconfined to factual statements bearing on the question of venue. Indeed, the bar surely willappreciate as well that if a party's tentative statement of a fact is conclusive whenever it isadverse to the party's position, it necessarily follows that a factual statement that is not expresslyqualified by some indication of uncertainty also is conclusive whenever it is adverse to theparty's position. Mistakes occur and are not without significant consequences as they sometimesprovide the opposing party with powerful impeachment material. The authorities cited above[*6]sensibly recognize that informal judicial admissions are notconclusive. The implications of the majority's position for both the manner in which depositionsare conducted and the just resolution of litigation are profound and I am loathe to explore them.
For these reasons, I would direct a hearing on the issue of when plaintiff moved from theBronx.
Footnote *: We take judicial notice of thefact that November 17, 2006 fell on a Friday.