Morgan v. Ali

301 A.D.2d 582, 753 N.Y.S.2d 857

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 21, 2003
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the defendant Mohammed Yousif Ali appeals from an order of the Supreme Court, Kings County (Schmidt, J.), dated December 20, 2001, which denied his motion to change venue to New York County and granted the plaintiffs’ cross motion to retain venue in Kings County.

Ordered that the order is affirmed, with costs.

The plaintiffs initially commenced an action in New York County to recover damages for personal injuries, stating the basis of venue as the residence of the defendant Leonide Perez. After the appellant answered, the parties executed a stipulation discontinuing the New York County action without prejudice. Thereafter, the plaintiffs commenced the instant action in Kings County, stating as the basis of venue the residence of the plaintiff Rose Thrower. Since the appellant’s counsel stipulated to discontinue the New York County action without prejudice, he cannot complain that the action was recommenced in Kings County. It is undisputed that Kings County is the residence of the plaintiff Thrower. Accordingly, the Supreme Court correctly denied the appellant’s motion to change venue to New York County (see CPLR 503 [a]; 510 [1]). Florio, J.P., O’Brien, Friedmann, Adams and Crane, JJ., concur.