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Seefeldt v. Incledon

261 A.D.2d 925 Court N.Y. App. Div. Decision date 1999-05-07 Docket Appeal No. 2 English

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p. 925
Tammy Seefeldt, Respondent, v James Incledon et al., Defendants and Lawrence Schuyler et al., Appellants.
(Appeal No. 2.)
[689 NYS2d 793]

—Order unanimously reversed on the law without costs and motion granted. Memorandum: Supreme Court erred in denying, upon renewal, the motion of Lawrence Schuyler, D.O., Fishkill Family Health and Mignonette Mae Willkom, M.D. (defendants) to change venue of this action from Erie County to Dutchess County. In support of the motion, defendants submitted evidence that all of the parties resided in Dutchess County at the time the action was commenced (see, CPLR 503 [a]; Labissiere v Roland, 231 AD2d 687 ; Siegfried v Siegfried, 92 AD2d 916 ). The statements in the affidavits submitted by plaintiff that she moved to Erie County prior to the commencement of the action with the intent to remain there are insufficient to establish her residence in Erie County (see, Labissiere v Roland, supra; Martinez v Semicevic, 178 AD2d 228 ; Siegfried v Siegfried, supra), particularly in the absence of documentary proof substantiating those statements

p. 926
(see, Martinez v Semicevic, supra; Morale v La Grange Inn, 160 AD2d 783 ; Mandelbaum v Mandelbaum, 151 AD2d 727 ). Further, even if a factual issue exists with regard to plaintiffs residence, a discretionary change of venue is warranted in view of defendants’ showing that the cause of action arose in Dutchess County, a majority of the nonparty witnesses reside there and the action bears no relation to Erie County apart from plaintiffs asserted residence there (see, Reid v Brookhaven Mem. Hosp. Ctr., 204 AD2d 123 ; Rodriguez v St. Paul’s Catholic Church, 162 AD2d 1017 ). (Appeal from Order of Supreme Court, Erie County, Notaro, J. — Renewal.) Present — Green, J. P., Lawton, Wisner, Scudder and Callahan, JJ.

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