Bergman v. Fiel

Appellate Division of the Supreme Court of New York

Bergman v. Fiel

12 A.D.3d 337, 783 N.Y.S.2d 309, 2004 N.Y. App. Div. LEXIS 12864

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 1, 2004

StatusPublished

Cited by1 cases

This text of 12 A.D.3d 337 (Bergman v. Fiel) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bergman v. Fiel, 12 A.D.3d 337, 783 N.Y.S.2d 309, 2004 N.Y. App. Div. LEXIS 12864 (N.Y. Ct. App. 2004).

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Opinion

In an action, inter alia, to recover damages for misappropriation of funds, the plaintiff appeals from an order of the Supreme Court, Rockland County (O’Rourke, J.), dated January 21, 2004, which granted the defendant’s motion pursuant to CPLR 510 (1) and 511 to change the venue of the action from Rockland County to New York County.

Ordered that the order is affirmed, with costs.

The basis of venue designated in the summons filed with the Supreme Court, Rockland County, was the county of the defendant’s residence. Prior to service of his answer, the defendant served a demand for change of venue pursuant to CPLR 511 followed by a motion pursuant to CPLR 510 (1) and 511 (b) [338]*338to change venue from Rockland County to New York County on the ground that he resided in New York County at the time of commencement of the action. The Supreme Court granted the defendant’s motion.

The defendant’s documentary evidence established that he had been residing in New York County for at least one year prior to the commencement of this action (see Schaefer v Schwartz, 226 AD2d 619, 620 [1996]; cf. Merendino v Lloyd, 172 AD2d 594, 595 [1991]). Furthermore, the defendant retained his residency in New York County even though he was incarcerated at the time this action was commenced (see Iglesia v Iglesia, 292 AD2d 424, 425 [2002]; Farrell v Lautob Realty Corp., 204 AD2d 597, 598 [1994]). The plaintiff failed to rebut this evidence or to otherwise show that the county he initially specified was proper (see Agostino Antiques v CGU-Am. Employers’ Ins. Co., 6 AD3d 469, 470 [2004]). Accordingly, the Supreme Court properly granted the defendant’s motion to change venue.

We decline to impose a sanction upon the plaintiff for pursuing a frivolous appeal, as requested by the defendant (see 22 NYCRR 130-1.1). Florio, J.P., Goldstein, Adams, Rivera and Spolzino, JJ., concur.

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In an action, inter alia, to recover damages for misappropriation of funds, the plaintiff appeals from an order of the Supreme Court, Rockland County (O’Rourke, J.), dated January 21, 2004, which granted the defendant’s motion pursuant to CPLR 510 (1) and 511 to change the venue of the action from Rockland County to New York County.

Ordered that the order is affirmed, with costs.

The basis of venue designated in the summons filed with the Supreme Court, Rockland County, was the county of the defendant’s residence. Prior to service of his answer, the defendant served a demand for change of venue pursuant to CPLR 511 followed by a motion pursuant to CPLR 510 (1) and 511 (b) [338]*338to change venue from Rockland County to New York County on the ground that he resided in New York County at the time of commencement of the action. The Supreme Court granted the defendant’s motion.

The defendant’s documentary evidence established that he had been residing in New York County for at least one year prior to the commencement of this action (see Schaefer v Schwartz, 226 AD2d 619, 620 [1996]; cf. Merendino v Lloyd, 172 AD2d 594, 595 [1991]). Furthermore, the defendant retained his residency in New York County even though he was incarcerated at the time this action was commenced (see Iglesia v Iglesia, 292 AD2d 424, 425 [2002]; Farrell v Lautob Realty Corp., 204 AD2d 597, 598 [1994]). The plaintiff failed to rebut this evidence or to otherwise show that the county he initially specified was proper (see Agostino Antiques v CGU-Am. Employers’ Ins. Co., 6 AD3d 469, 470 [2004]). Accordingly, the Supreme Court properly granted the defendant’s motion to change venue.

We decline to impose a sanction upon the plaintiff for pursuing a frivolous appeal, as requested by the defendant (see 22 NYCRR 130-1.1). Florio, J.P., Goldstein, Adams, Rivera and Spolzino, JJ., concur.

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12 A.D.3d 337, 783 N.Y.S.2d 309, 2004 N.Y. App. Div. LEXIS 12864, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bergman-v-fiel-nyappdiv-2004.

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