Barone v. Walt Whitman Mall, LLC

2025 NY Slip Op 30590(U)

• Court: New York Supreme Court, New York County
• Decided: February 21, 2025
• Docket: Index No. 157245/2022
• Status: Unpublished

Opinion

Barone v Walt Whitman Mall, LLC 2025 NY Slip Op 30590(U) February 21, 2025 Supreme Court, New York County Docket Number: Index No. 157245/2022 Judge: Mary V. Rosado Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [FILED: NEW YORK COUNTY CLERK 02/21/2025 04:47 P~ INDEX NO. 157245/2022 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 02/21/2025

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON.MARYV.ROSADO PART 33M Justice ------------------X INDEX NO. 157245/2022 FORTUNATA BARONE, MOTION DATE 10/18/2024 Plaintiff, MOTION SEQ. NO. 001 - V -

WALT WHITMAN MALL, LLC, SIMON PROPERTY GROUP, DECISION + ORDER ON INC., SAKS & COMPANY LLC MOTION Defendant. ------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 001) 19, 20, 21, 22, 23, 24,25,27,28,29, 30, 31, 32, 33, 34, 35, 36, 38,40,41,42,43 were read on this motion to/for CHANGE VENUE

Upon the foregoing documents, and a final submission date of January 21, 2025,

Defendants Walt Whitman Mall, LLC ("Whitman Mall") and Simon Property Group, Inc.'s

(collectively "Movants") motion for an Order directing the transfer of venue from New York

County to Suffolk County is granted.

I. Background

On January 16, 2022, Plaintiff allegedly fell at a mall operated by Movants located at 230

Walt Whitman Road, Huntington Station, New York (see generally NYSCEF Doc. 13). On August

24, 2022, Plaintiff filed her Complaint and an Amended Summons and Complaint on September

18, 2024 (NYSCEF Docs. 30, 31). Movants filed a Demand for Change of Venue to Suffolk

County on October 11, 2024, and their Answer to Plaintiff's Amended Complaint on October 18,

2024 (NYSCEF Doc. 23, 26).

Movants seek to change venue to Suffolk County. Movants argue Plaintiff, her medical

providers, the location of the accident, named witnesses, and other potential parties, all reside or

157245/2022 BARONE, FORTUNATA vs. WALT WHITMAN MALL, LLC ET AL Page 1 of 4 Motion No. 001

[* 1] 1 of 4 [FILED: NEW YORK COUNTY CLERK 02/21/2025 04:47 PM] INDEX NO. 157245/2022 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 02/21/2025

are located in Suffolk County. Plaintiff opposes on grounds of untimeliness and waiver (see

NYSCEF Doc. 34).

II. Discussion

On a motion to change venue, pursuant to CPLR 510(1), "defendant's burden ... is limited

to establishing that the designated county is improper" (]ME Watchdog, Inc. v Baker, McEvoy,

Morrissey & Moskovits, P.C., 145 AD3d 464, 465 [1st Dept 2016]). "Except where otherwise

prescribed by law, the place of trial shall be in the county in which one of the parties resided

when [the action] was commenced; the county in which a substantial part of the events or

omissions giving rise to the claim occurred; or if none of the parties resided in the state, in any

county designated by the plaintiff' (CPLR 503[a]). A corporation is a resident of the county in

which its principal office is located (CPLR 503 [c]).

A defendant moving to change venue on the grounds of improper venue must follow the

demand procedures set forth in CPLR 511 (Roman v Brereton, 182 Ad2d 556,557 [1st Dept 1992];

CPLR 510[1]). CPLR 511 provides that a defendant shall serve a written demand to change venue

with their Answer to a Complaint, or prior to it (CPLR 511 [a]-[b]). The defendant may thereafter

move to change venue within 15 days after service of the demand (CPLR 511 [b ]). A motion to

change venue on any other ground shall be made within a reasonable time after commencement of

the action (CPLR 511 [a]).

Here, Movants' motion to change venue is timely. Movants properly served their demand

to change venue prior to their Amended Answer and subsequently filed the instant motion within

15 days after service of the demand (Bronx Car Park Sys., Inc. v Fordham Hill Owners' Corp.,

220 AD3d 440, 440 [1st Dept 2023]). There is no showing that Movants intended to delay

157245/2022 BARONE, FORTUNATA vs. WALT WHITMAN MALL, LLC ET AL Page 2 of 4 Motion No. 001

2 of 4 [* 2] [FILED: NEW YORK COUNTY CLERK 02/21/2025 04:47 P~ INDEX NO. 157245/2022 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 02/21/2025

prosecution of this action in serving their Amended Answer (see Id.; Corea v Browne, 45 AD3d

623, 624 [2d Dept 2007]).

Furthermore, Plaintiffs selection of New York County as venue for this action is improper.

Whitman Mall is a Delaware limited liability company with a principal office in Indianapolis,

Indiana (NYSCEF Doc. 42). Its certificate of formation does not establish a principal place of

business in New York, except that it permits Whitman Mall to "acquire own, hold, lease, operate,

manage, maintain, develop, finance and improve that certain real estate and improvements known

as Walt Whitman Mall located in Huntington Station, Suffolk County, New York" (Id.). Plaintiff's

basis to designate New York County as the venue for this action is Whitman Mall's selection of

New York County for service of process with the Secretary of State (NYSCEF Doc. 34 ). However,

this does not establish residence for purposes of evaluating proper venue. Here, no party was a

resident of New York County at the time of the incident, all relevant parties and potential witnesses

are residents of Suffolk County, and the incident occurred in Suffolk County. Therefore, the Court

finds that New York County is an improper venue for this action.

Accordingly, it is hereby,

ORDERED that the motion for a change of venue is granted and venue of this action is

changed from this Court to the Supreme Court, County of Suffolk, and it is further

ORDERED that the Clerk of this Court shall transfer the file in this action to the Clerk of

the Supreme Court, County of Suffolk and shall mark his/her records to reflect such transfer; and

it is further

ORDERED that, within 30 days from entry of this order, counsel for movants shall serve

a copy of this order with notice of entry upon the Clerk of this Court, shall pay the appropriate

157245/2022 BARONE, FORTUNA TA vs. WALT WHITMAN MALL, LLC ET AL Page 3 of 4 Motion No. 001

3 of 4 [* 3] [FILED: NEW YORK COUNTY CLERK 02/21/2025 04:47 P~ INDEX NO. 157245/2022 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 02/21/2025

transfer fee, if any, and shall contact the staff of the Clerk of this Court and cooperate m

effectuating the transfer; and it is further

ORDERED that the Clerk of the Court shall coordinate the transfer of the file in this action

with the Clerk of the Supreme Court, Suffolk County, so as to ensure an efficient transfer and

minimize insofar as practical the reproduction of documents, including with regard to any

documents that may be in digital format; and it is further

ORDERED that such service upon the Clerk of this Court shall be made in accordance with

the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for

Electronically Filed Cases (accessible at the "E-Filing" page on the court's website); and it is

further

ORDERED that within IO days of entry, counsel for Movants shall serve a copy of this

Decision and Order, with notice of entry, on all parties via NYSCEF.

This constitutes the Decision and Order of the Court.

2/21/2025 DATE CHECK ONE: CASE DISPOSED

GRANTED □ DENIED □ OTHER APPLICATION: SETTLE ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN □ REFERENCE

157245/2022 BARONE, FORTUNATA vs. WALT WHITMAN MALL, LLC ET AL Page 4 of 4 Motion No. 001

4 of 4 [* 4]