Opinion
13685N-13685NA Index No. 28330/19E Case No. 2020-02237 2020-04026
04-27-2021
Shirley GUMBS, Plaintiff–Respondent, v. MTA BUS COMPANY, Defendant–Appellant, Metropolitan Transportation Authority, et al., Defendants.
Morris Duffy Alonso & Faley, New York (Iryna S. Krauchanka of counsel), for appellant. Lindstadt Law PLLC, Astora (Michael A. Lindstadt of counsel), for respondent.
Morris Duffy Alonso & Faley, New York (Iryna S. Krauchanka of counsel), for appellant.
Lindstadt Law PLLC, Astora (Michael A. Lindstadt of counsel), for respondent.
Gische, J.P., Kern, Mazzarelli, Kennedy, JJ.
Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered on or about November 12, 2019, which, to the extent appealed from as limited by the briefs, denied defendant MTA Bus Company's motion to change venue from Bronx County to New York County, unanimously reversed, on the law, without costs, and the motion granted. Appeal from order, same court and Justice, entered on or about September 16, 2020, which, to the extent appealed from, denied MTA Bus Company's motion to renew its motion to change venue, unanimously dismissed, without costs, as academic.
Upon dismissal of plaintiff's claims against the other public defendants, venue should have been changed to New York County, where the only remaining defendant, MTA Bus Company (MTA Bus), has its principal place of business (see CPLR 505[a] ; Emerick v. Metropolitan Transp. Auth., 272 A.D.2d 150, 150, 708 N.Y.S.2d 612 [1st Dept. 2000] ; Noonan v. Long Is. R.R., 158 A.D.2d 392, 393, 551 N.Y.S.2d 232 [1st Dept. 1990] ). Plaintiff's accident occurred on the bus, and not at the bus depot that she argues was "involved in the action" ( CPLR 505[a] ). Although she herself resides in the Bronx, plaintiff has failed to allege any facts showing "compelling circumstances regarding the convenience of witnesses" ( Emerick , at 150, 708 N.Y.S.2d 612 ).
As for plaintiff's argument on appeal that venue in Bronx County is proper because of her claim that MTA Bus negligently maintained the bus at its bus depot in the Bronx, this contention was not raised below and is, thus, unpreserved for review (see Pirraglia v. CCC Realty NY Corp., 35 A.D.3d 234, 828 N.Y.S.2d 6 [1st Dept. 2006] ). In any event, the complaint does not allege negligent maintenance by MTA Bus, but merely alleges that all defendants maintained the bus on which the accident occurred.