| Morreale v 105 Page Homeowners Assn., Inc. |
| 2009 NY Slip Op 05952 [64 AD3d 689] |
| July 21, 2009 |
| Appellate Division, Second Department |
| Barbara Morreale, Respondent, v 105 Page HomeownersAssociation, Inc., et al., Respondents, and Joseph Fallacaro et al.,Appellants. |
—[*1] Everett J. Petersson, P.C., Brooklyn, N.Y. (Michael A. Serpico of counsel), forplaintiff-respondent. White, Quinlan & Staley, LLP, Garden City, N.Y. (Arthur T. McQuillan of counsel), fordefendant-respondent Perillo Chiropractic, LLP.
In an action to recover damages for personal injuries, the defendants Joseph Fallacaro andNancy Fallacaro appeal, as limited by their brief, from so much of an order of the SupremeCourt, Kings County (Ruchelsman, J.), dated June 30, 2008, as, in effect, upon renewal, adheredto the determination in a prior order dated January 8, 2007, denying their motion pursuant toCPLR 510 (1) and 511 to change the venue of the action from Kings County to RichmondCounty.
Ordered that the order dated June 30, 2008 is reversed insofar as appealed from, on the factsand in the exercise of discretion, with one bill of costs payable by the plaintiff to the defendantsJoseph Fallacaro and Nancy Fallacaro, upon renewal, the order dated January 8, 2007 is vacated,the motion of the defendants Joseph Fallacaro and Nancy Fallacaro to change the venue of theaction from Kings County to Richmond County is granted, and the Clerk of the Supreme Court,Kings County, is directed to deliver to the Clerk of the Supreme Court, Richmond County, allpapers filed in this action and certified copies of all minutes and entries (see CPLR 511[d]).
Upon renewal, the appellants submitted excerpts of the plaintiff's deposition testimony,which was taken after the Supreme Court's original order dated January 8, 2007, denying theirmotion pursuant to CPLR 510 (1) and 511 to change the venue of the action from Kings Countyto Richmond County. The relevant testimony revealed that on or about December 31, 2005,which was just over one year after the subject accident, the plaintiff moved to her son'sapartment in Brooklyn from her house in Staten Island after a "diabetic episode," that in Marchor April 2006, she entered into a contract to purchase a house in New Jersey, that on August 8,2006, three days after commencing this action, she "took over" her new house in New Jersey,and moved into it in November 2006.[*2]
A residence for venue purposes is a place where onestays for some time with "the bona fide intent to retain the place as a residence for some lengthof time and with some degree of permanency" (Katz v Siroty, 62 AD2d 1011, 1012[1978]; see Jones-Ledbetter v Biltmore Auto Sales, 229 AD2d 518, 519 [1996];Mandelbaum v Mandelbaum, 151 AD2d 727, 728 [1989]).
Upon renewal, the appellants made a prima facie showing that the plaintiff was temporarilystaying at the Brooklyn apartment at the time she commenced this action without "the bona fideintent to retain the place as a residence for some length of time and with some degree ofpermanency" (Katz v Siroty, 62 AD2d at 1012; see Neu v St. John's Episcopal Hosp., 27 AD3d 538 [2006];Jones-Ledbetter v Biltmore Auto Sales, 229 AD2d at 519; Sibrizzi v Mount TomDay School, 155 AD2d 337 [1989]). The plaintiff failed to rebut that showing (seeSamuel v Green, 276 AD2d 687 [2000]). Accordingly, upon renewal, the appellants' motionto change venue from Kings County to Richmond County, the county where the defendantsresided, should have been granted (see CPLR 503 [a]; Maggio v Wal-MartStores, 275 AD2d 350, 351 [2000]). Mastro, J.P., Fisher, Miller, Dickerson and Chambers,JJ., concur.