Opinion
2009-09626 Index No. 14058/06
08-09-2011
Nikiki Brash, respondent, v. Neil M. Richards, etc., defendant, Harrison Mu, etc., appellant.
Martin Clearwater & Bell LLP, New York, N.Y. (Arjay G. Yao, John L.A. Lyddane, and Thomas A. Mobilia of counsel), for appellant. Goldstein & Goldstein, Brooklyn, N.Y. (Cindy A. Moonsammy of counsel), for respondent.
, J.P.
CHERYL E. CHAMBERS
LEONARD B. AUSTIN
JEFFREY A. COHEN, JJ.
Martin Clearwater & Bell LLP, New York, N.Y. (Arjay G. Yao, John L.A. Lyddane, and Thomas A. Mobilia of counsel), for appellant.
Goldstein & Goldstein, Brooklyn, N.Y. (Cindy A. Moonsammy of counsel), for respondent.
DECISION & ORDER
In an action to recover damages for medical malpractice and lack of informed consent, the defendant Harrison Mu appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Dabiri, J.), dated August 14, 2009, as denied his motion pursuant to CPLR 503(a), 510, and 511 to change the venue of the action from Kings County to Queens County.
ORDERED that the order is reversed insofar as appealed from, on the facts and in the exercise of discretion, with costs, the motion of the defendant Harrison Mu pursuant to CPLR 503(a), 510, and 511 to change the venue of the action from Kings County to Queens County is granted, and the Clerk of the Supreme Court, Kings County, is directed to deliver to the Clerk of the Supreme Court, Queens County, all papers filed in the action and certified copies of all minutes and entries (see CPLR 511[d]).
A demand to change venue based on the designation of an improper county (see CPLR 510[1]) "shall be served with the answer or before the answer is served" (CPLR 511[a]; see Thomas v Guttikonda, 68 AD3d 853, 854). Since the defendant Harrison Mu did not serve his demand for a change of venue until after he served his answer, he was not entitled to change venue as of right (see Thomas v Guttikonda, 68 AD3d at 854; Jeffrey L. Rosenberg & Assoc., LLC v Lajaunie, 54 AD3d 813, 816; Palla v Doctors Hosp. of Staten Is., 248 AD2d 603). Thus, his motion became one addressed to the Supreme Court's discretion (see Thomas v Guttikonda, 68 AD3d at 854; Jeffrey L. Rosenberg & Assoc., LLC v Lajaunie, 54 AD3d at 816; Palla v Doctors Hosp. of Staten Is., 248 AD2d at 604).
Kings County is not a proper county here, as none of the parties resided there at the time the action was commenced (see Herrera v R. Conley Inc., 52 AD3d 218; Neu v St. John's Episcopal Hosp., 27 AD3d 538; Peretzman v Elias, 221 AD2d 192). When the plaintiff commenced this action, he did not specify the basis for placing venue in Kings County and, if based on his residence, he did not specify his address, as required by CPLR 305(a) (see Accardi v Kaufmann, 82 AD3d 803; Philogene v Fuller Auto Leasing, 167 AD2d 178; cf. Thomas v Guttikonda, 68 AD3d at 854). Further, Mu moved promptly to change venue after ascertaining the plaintiff's true residence (see Neu v St. John's Episcopal Hosp., 27 AD3d at 539; Supino v PV Holding Corp., 291 AD2d 489). Accordingly, the Supreme Court improvidently exercised its discretion in denying Mu's motion to change the venue of the action from Kings County to Queens County.
MASTRO, J.P., CHAMBERS, AUSTIN and COHEN, JJ., concur.
ENTER:
Matthew G. Kiernan
Clerk of the Court