Opinion
Index # 158128/15
02-17-2016
RACHEL SIEGEL, Plaintiff, v. JAMES T ROBINSON, FW WEBB COMPANY ENTERPRISE FM TRUST, CHAUNCEY A. MATTHEWS AND DOLLAR RENT A CAR, INC., Defendants.
Motion Seq.: 001 DECISION/ORDER Hon. Leticia M. Ramirez Defendants move, pursuant to CPLR §510 and §511 for a Change in Venue and for Summary Judgment pursuant to CPLR §3212
Defendant Dollar Rent A Car, Inc., did not submit any papers in opposition to, or in support of, this motion.
Defendants, James T. Robinson, FW Webb Company and Enterprises FM Trust, move for the aforementioned relief, alleging that New York County is an improper venue and that the matter should properly be heard in Warren County, New York, as defendant James T. Robinson resides in Warren County and the accident occurred in nearby Saratoga County. Defendants also argue that venue in New York County is improper, as none of the defendants reside in New York County. - Defendant Robinson resides in San Diego, California and defendant FW Webb Company alleges it is located in Bedford, Massachusetts. Defendants Enterprise FM Trust and Dollar Rent A Car, Inc. are both located in Massachusetts and Orlando, Florida, respectively.
Plaintiff opposes the motion arguing that venue is proper in New York County, pursuant to CPLR §503(a) and (c), as defendant Dollar Rent A Car Inc. resides in New York County pursuant to a Certificate of Authority, which states that the county in which the corporation is to be located is New York County. Moreover, plaintiff argues that the defendants' motion fails to set forth prima facie entitlement to a change in venue as they have failed to submit sufficient proof, in admissible form, to be granted the relief sought.
This matter arises out of a motor vehicle accident which occurred on or about May 9, 2015 in Saratoga, New York. The Complaint alleges that the plaintiff has sustained serious permanent injuries as a result of the negligence and recklessness of the defendants.
Plaintiff alleges that defendants James T. Robinson, FW Webb Company Enterprise FM Trust, and Chauncey A. Matthews together with Dollar Rent A Car, Inc., were negligent, inter alia, in the ownership, maintenance and operation of the motor vehicles involved in the accident. Plaintiff was the passenger in the motor vehicle driven by defendant Chauncey A. Matthews and owned by defendant Dollar Rent A Car Inc. That motor vehicle allegedly collided with the motor vehicle driven by defendant James T. Robinson, owned by defendant Enterprise FM Trust and leased by defendant FW Webb Company. ,
Plaintiff, in opposition to the instant motion, submits an "Application for Authority" which sets forth New York County, New York as the location for defendant Dollar Rent A Car, Inc.'s principal office. ( see , Exh B, opp papers).
The designation of a county as the location of a corporation's principal office in a Certificate of Incorporation is controlling in determining corporate residence for the purposes of venue" ( Conway v Gateway Assoc ., 166 AD2d 388, 389 [1990]). Moreover, for venue purposes, a foreign corporation's designation of the location of its principal office contained in its Certificate of Authority, filed with the Secretary of State, constitutes a designation of its residence for venue purposes under CPLR §503©. (See also, Kochany v Chrysler Corp., 67 AD2d 637 [1st Dept 1979]). Based upon the defendant Dollar Rent A Car, Inc.'s Certificate of Authority, plaintiff has properly placed venue in New York County.
In addition to the claim of improper venue based upon the non-residence of the defendants in New York County, the defendants also opposes the plaintiff's choice of venue claiming that venue should lie in Warren County, as one of the defendant's resides in Warren County and the accident happened in neighboring Saratoga County, thereby making Warren County more convenient.
When moving to change venue, pursuant to CPLR §501(3), the defendant must submit (1) the names and addresses of witnesses who were going to testify, (2) the facts about which the witnesses will testify, (3) a statement indicating that the witnesses are, in fact, willing to testify, and (4) a statement verifying that the witnesses would be inconvenienced if venue were not changed. (O'Brien v Vassar Brothers Hospital, 207 AD2d 169 [2nd Dept 1995]; see also, Boiling v Metropolitan Surburban Bus Authority, 205 AD2d 724 [2nd Dept 1994]).
A review of the papers submitted in support of defendants' motion reveals that the defendants have failed to submit any documentary evidence to support their claim that venue would be proper in Warren County, New York. The convenience of witnesses must be documented by material witnesses in admissible form. Furthermore, submission of an attorney affirmation is insufficient to make a prima facie showing for a change in venue (Vilches v Guadagno, 125 Ad3d 451 [1st Dept 2015] ).
Defendants also move, pursuant to CPLR §3212, for summary judgment dismissing the Complaint as against defendant Enterprise FM Trust, citing the Graves Amendment, alleging that it is immune from suit.
Plaintiff opposes the granting of summary judgment, arguing that the defendants are being sued, inter alia , under a theory of negligent maintenance of the vehicle, and as such, precludes automatic immunity under the Graves Amendment.
It is well settled that summary judgment is a drastic remedy and cannot be granted where there is any doubt as to the existence of triable issues of fact or if there is even arguably such an issue. (Hourigan v. McGarry, 106 A.D.2d 845, appeal dismissed 65 N.Y.2d 637 [1985]; Andre v. Pomeroy, 35 N.Y.2d 361, 320 N.E.2d 853, 362 N.Y.S.2d 131 [1974]). The function of a court in deciding a summary judgment motion is to determine whether any issues of fact exist which preclude summary resolution of the dispute between the parties on the merits. (Consolidated Edison Co. v Zebler, 40 Misc3d 1230A [Sup. Ct. N.Y. 2013]. See also, Menzel v. Plotnick, 202 A.D.2d 558, 610 N.Y.S.2d 50 [2nd Dept. 1994]). Furthermore, in deciding motions for summary judgment, the Court must accept, as true, the non-moving party's recounting of the facts and must draw all reasonable inferences in favor of the non-moving party. (Warney v Haddad, 237 A.D.2d 123 [1st Dept. 1997]. See also, Menzel v. Plotnick, supra.)
Based upon the arguments set forth in the moving papers, this Court finds thafa grant of summary judgment to the defendants, dismissing the instant action against defendant Enterprise FM Trust based upon the Graves Amendment is premature at this time. (Collazo v MTA-New York City Transit, 74 AD3d 642 [1st Dept 2010]). Further discovery is warranted in order to ascertain what liability, if any, defendant Enterprise FM Trust may have.
Accordingly, the defendants' motion is denied, in its entirety. The parties are directed to appear in the DCM Part for Compliance Conference on October 3, 2016, at 9:30 a.m., at 80 Centre Street, Room 103, New York, New York.
This constitutes the Decision and Order of this Court. Dated: February 17, 2016
New York, New York
/s/_________
Hon. Leticia M. Ramirez