Recitation in accordance with CPLR 2219 (a) of the papers considered on the joint notice of motion of defendant Eric Johnson (hereinafter Johnson) and Marcia Saint Urbain (hereinafter Urbain) filed on December 10, 2020, under motion sequence two, for an order pursuant to CPLR §§503, 509, 510 and 511 changing the place of trial of the action of this action from the Supreme Court of Kings County to the Supreme Court of Nassau County. The motion is unopposed. Notice of Motion Affirmation in Support Exhibits A-D DECISION & ORDER BACKGROUND On March 20, 2020, plaintiff Françoise Mervil (hereinafter Mervil) commenced the instant action for damages for personal injuries by electronically filing a summons and verified complaint with the Kings County Clerk’s office. On November 24, 2020, defendants Johnson and Urbain joined issue by electronically filing a verified answer. The verified complaint alleges the following facts. On March 28, 2017, Mervil was driving his 2015 Infinity bearing license plate number DWR2245 on Sayers Avenue at or near its intersection with 173rd Street, Queens, New York. On the same date and time, Urbain was driving a 2006 Chevrolet bearing license plate number HDL1758, with the permission of its owner, Johnson, on Sayers Avenue at or near an intersection with 173rd Street, Queens, New York. On the same date, time and location, Urbain collided with Mervil’s vehicle severely injuring Mervil. Mervil alleges that the collision was caused by Urbain’s negligent operation of his vehicle. LAW AND APPLICATION In the first allegation of fact in the verified complaint, Mervil stated that the defendants were residents of Kings County. On November 24, 2020, the defendants filed a verified answer asserting improper venue as an affirmative defense and served a demand to change venue to Nassau County pursuant to CPLR 510 and CPLR 511. On December 10, 2020, the defendants moved to change venue. Article 5 of the CPLR sets forth rules for determining venues. Venues are districts in which an action may be brought, assuming that the court already has both subject and personal jurisdiction. CPLR 510 lists the three grounds by which the court, upon motion, can change venue; CPLR 503 dictates venues for different causes of actions according to the parties’ residence; and CPLR 511 outlines the procedures for changing venues. To prevail on a motion pursuant to these statutes: first, the defendant must adhere to the procedures for changing venue pursuant to CPLR 511; second, the defendant must show that the plaintiff’s choice of venue was improper pursuant to CPLR 503; and third, the defendant must show that their choice of venue is proper pursuant to CPLR 510, subdivision (a) and (b). CPLR 511 (a) states: Time for motion or demand. A demand under subdivision (b) for change of place of trial on the ground that the county designated for that purpose is not a proper county shall be served with the answer or before the answer is served. A motion for change of place of trial on any other ground shall be made within a reasonable time after commencement of the action. CPLR 511 (b) states: Demand for change of place of trial upon ground of improper venue, where motion made. The defendant shall serve a written demand that the action be tried in a county he specifies as proper. Thereafter the defendant may move to change the place of trial within fifteen days, after service of the demand, unless within five days after such service plaintiff serves a written consent to change the place of trial to that specified by the defendant. Defendant may notice such motion to be heard as if the action were pending in the county he specified, unless plaintiff within five days after service of the demand serves an affidavit showing either that the county specified by the defendant is not proper or that the county designated by him is proper. CPLR 503 (a) states: Generally. Except where otherwise prescribed by law, the place of trial shall be in the county in which one of the parties resided when it was commenced; the county in which a substantial part of the events or omissions giving rise to the claim occurred; or, if none of the parties then resided in the state, in any county designated by the plaintiff. A party resident in more than one county shall be deemed a resident of each such county. CPLR 503 dictates venues for different causes of actions according to the parties’ residence. To succeed on a motion to change venue, the movant must establish that the plaintiff chose a venue which failed to satisfy at least one of the three requisites: (1) the chosen venue shares a county with one party’s place of residence; (2) the chosen venue shares a county with the incident from which the action arises; (3) the chosen venue was designated by the plaintiff in an action where neither party resides in the state. In this action, the defendants allege that Mervil improperly chose Kings County as the venue when she filed her complaint with the Kings County Clerk’s office. The only evidentiary support for their contention was an uncertified police report annexed as exhibit D to their motion papers. Although the motion is unopposed, for the reasons set forth herein, it must, nevertheless, be denied as unsupported. On September 23, 2020, in the case of Yassin v. Blackman, 188 AD3d 62 [2nd Dept 2020], the Appellate Division Second Department clarified that where a police report has not been certified, and a foundation for its admissibility has not been laid by some other method, the report and its contents constitute inadmissible hearsay. By that decision, the Court also stated that a prior line of its decisions, which anomalously espoused a carve-out to that rule, holding that a party’s admission in an uncertified police report is admissible against that party, should no longer be followed for that proposition. Applying the principle set forth in Yassin to the instant action renders the uncertified police report proffered by the defendants inadmissible. Inasmuch as the uncertified police report was the only evidence submitted to support the defendants’ motion, the motion is unsupported. Moreover, even if the defendants were able to render the police report admissible by having it certified or by rendering it admissible through some other method, the motion would still have to be denied. An individual can have more than one address which he or she resides in, and therefore, can be considered a resident of more than one county. CPLR 503 dictates that “a party resident in more than one county shall be deemed a resident of each such county”. The subject police report merely showed that, when the accident occurred, the plaintiff maintained a residence in Queens County. However, this evidence failed to demonstrate that the plaintiff did not maintain a residence in Kings County at the time the action was commenced (Deas v. Ahmed, 120 AD3d 750 [2nd Dept 2014]). In sum, a police accident report referable to the subject accident, standing alone, is not sufficient evidence to demonstrate that, on the date that an action is commenced, a plaintiff does not reside in the county where he or she elects to place the venue of trial (id.). CONCLUSION The motion by defendants Eric Johnson and Marcia Saint Urbain for an order pursuant to CPLR §§503, 509, 510 and 511 changing the place of trial of the action from Kings County Supreme Court to Nassau County Supreme Court is denied. The foregoing constitutes the decision and order of this Court. *Researched and drafted with the assistance of Samuel Win, Senior at John Jay College of Criminal Justice Dated: March 24, 2021
