Fiallos v. New York University Hospital

85 A.D.3d 678, 926 N.Y.S.2d 483

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 30, 2011
• Status: Published

Opinions

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered on or about February 8, 2010, which granted defendant’s motion for a change of venue, reversed, on the law and the facts, without costs, and the motion denied.

In making its motion, defendant assumed the burden of disproving plaintiffs Bronx County residence (see e.g. Clarke v Ahern Prod. Servs., 181 AD2d 514 [1992]). Counsel’s affidavit by which he cites unspecified “investigative efforts” that revealed that someone other than plaintiff occupied the apartment amounts to mere hearsay and is insufficient to carry defendant’s initial burden (see Hurley v Union Trust Co. of Rochester, 244 App Div 590 [1935]). Even if accepted, defendant’s proof would fall far short of establishing that plaintiff did not live anywhere in Bronx County when this action was commenced. Accordingly, defendant’s failure to meet its initial burden of making a prima facie showing of entitlement to relief makes it unnecessary to consider the sufficiency of plaintiffs opposition to the motion (see e.g. Frees v Frank & Walter Eberhart L.P. No.l, 71 AD3d 491, 492 [2010]). Concur — Mazzarelli, J.E, DeGrasse, Freedman and Abdus-Salaam, JJ.