By notice of motion filed on October 14, 2021, under motion sequence number one, defendant Ming Zheng (hereinafter Zheng) moved for an order pursuant to CPLR 510 (3) changing the place of trial of the instant matter from Kings County to Queens County. Plaintiff Marco Torres Regalado (hereinafter Regalado) opposed the motion. On August 3, 2021, the plaintiff commenced the instant action for damages for personal injuries by filing a summons and verified complaint (hereinafter the commencement papers) with the Kings County Clerk’s office (KCCO). The verified complaint alleged the following salient facts. On February 10, 2021, Zheng, a resident of Kings County, negligently operated a motor vehicle on the Long Island Expressway near Main Street in Queens County and collided with a vehicle operated by Regalado (hereinafter the subject accident). Regalado allegedly sustained serious physical injuries due to the subject accident. On September 30, 2021, Michael Wood filed answer with cross claims with the KCCO. On October 14, 2021, Zheng filed an answer with the KCCO. By decision and order dated January 31, 2022, the Court ordered addressed motion sequence number one by ordering an evidentiary hearing on the issue of the actual residence of the defendant, Ming Zheng, at the time the instant action was commenced. LAW AND APPLICATION CPLR 503(a) provides, in pertinent part, that “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;” or “the county in which a substantial part of the events or omissions giving rise to the claim occurred.” To prevail on a motion pursuant to CPLR 510(1) to change venue, a defendant must show that the plaintiff’s choice of venue is improper and that the defendant’s choice of venue is proper (see CPLR 511[b]; Green v. Duga, 200 AD3d 861, 862 [2nd Dept 2021]). If the defendant meets this burden, the plaintiff is required to establish, in opposition, via documentary evidence, that the venue selected was proper (Faulkner v. Best Trails & Travel Corp., 203 AD3d 890 [2nd Dept 2022]). The evidentiary hearing was conducted on May 31, 2022, Zheng was the sole witness. He proffered two exhibits and his own testimony utilizing the services of a Mandarin interpreter. The two exhibits consisted of two purported mortgage statements for the month of July and August 2021and two National Grid utility bills for the month of July and September 2021. All the exhibits contained numerous redactions. The mortgage statements and bills were addressed to Zheng at an address in Queens County which he claimed to be his residence. Zheng’s instant motion papers included, inter alia, the pleadings and his affidavit. Plaintiff’s opposition papers included, inter alia, a police accident report and the affidavit of service of the commencement papers upon Zheng. The Court took notice of the following facts. The police accident report reflected that Zheng presented the police with his New York State driver’s license and the license showed a Kings County address as his residence. Also noted was that the address on the driver’s license was the exact same address that service of the commencement papers was effectuated upon Zheng. The affidavit of service of commencement papers reflected service pursuant to CPLR 308 (2) by delivery to Li Zheng. Zheng further claimed that he has resided in Queens County at the address contained in his mortgage and utility bill statements. Zheng admitted that his driver’s license reflected a Kings County address at the time of the subject accident. He also admitted that he had resided with his parents at the Kings County address that was listed on his New York State driver’s license at the time of the subject motor vehicle accident. He further testified that he moved from the Kings County address in or around 2015 or 2016 but still returned from time to time and sometimes slept there overnight when he was helping his disabled parent with chores such as shopping. He also admitted that he did not contest service of the commencement papers pursuant to CPLR 308 (2) at that Kings County address. During cross examination, Zheng was presented with his purported affidavit that was submitted by his counsel submitted in support of the instant motion. Zheng claimed that he never saw it before the date of the hearing. He also averred that he did not understand its content due to his inability to fully comprehend words written in English. It is noted that Zheng’s counsel submitted Zheng’s affidavit with Zheng’s signature notarized. The defendant’s motion papers did not aver that the affidavit was created with the service of a translator (see CPLR 2101[b]). Zheng’s counsel did not question Zheng further regarding his repudiation of his own affidavit. The Court finds that Zheng’s testimony, that he did not see his own notarized affidavit before the date of the evidentiary hearing, is willfully false. Inasmuch as Zheng’s affidavit was used in support of the instant motion and was considered by the Court in ordering the instant evidentiary hearing, the testimony was a material fact. Applying the principle of falsus in uno, the Court does not credit Zheng’s testimony to the extent that he claims that he lacks a residence in Kings County. Zheng’s testimony and documentary submissions establishes that he has two residences, one in Queens County and the other in Kings County. In the context of determining the proper venue of an action, a party may have more than one residence (Bostick v. Safa, 173 AD3d 823, 824 [2nd Dept 2019]). Therefore, Zheng has not established that plaintiff’s choice to place the venue of the action in Kings County was wrong. Accordingly, the motion by defendant Ming Zheng for an order pursuant to CPLR 510 (3) changing the place of trial of the instant matter from Kings County to Queens County is denied. The foregoing constitutes the decision and order of this court. Dated: June 2, 2022
