

Mejia v J. Crew Operating Corp. (2016 NY Slip Op 04678)





Mejia v J. Crew Operating Corp.


2016 NY Slip Op 04678


Decided on June 14, 2016


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on June 14, 2016

Friedman, J.P., Sweeny, Webber, Gesmer, JJ.


1454N 24173/14

[*1] Manuel Mejia, Plaintiff-Appellant,
vJ. Crew Operating Corp., et al., Defendants-Respondents, 770 Broadway Owner LLC, et al., Defendants.


Law Offices of Annette G. Hasapidis, Mt. Kisco (Annette G. Hasapidis of counsel), for appellant.
Law Offices of Joseph J. Rava, White Plains (Matthew F. Rice of counsel), for respondents.

Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered July 8, 2015, which granted the motion of defendants J. Crew Operating Corp. and Global Facility Management & Construction to change venue from Bronx County to Richmond County, unanimously reversed, on the law and the facts, without costs, and the motion denied.
As an initial matter, Supreme Court erred by treating defendants' motion to change venue as of right under CPLR 510(1) as having been made under CPLR 510(3).
Unless otherwise prescribed, venue is properly laid in the county where one of the parties resides when the action is commenced (CPLR 503[a]). In making the motion under CPLR 510(1), defendants, as movants, assumed the burden to establish that plaintiff improperly designated Bronx County as the venue (see Fiallos v New York Univ. Hosp., 85 AD3d 678 [1st Dept 2011]). Defendants' proof indicates that when seeking treatment at Lincoln Hospital on April 10, 2014, plaintiff gave a Richmond County address. However, that evidence does not demonstrate where plaintiff resided when this action was commenced five months later, in September 2014 (see id.; Corea v Browne, 45 AD3d 623 [2d Dept 2007]).
In view of defendants' failure to meet their initial burden, it is unnecessary to consider the sufficiency of plaintiff's opposition to the motion (see e.g. Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JUNE 14, 2016
CLERK


