Notice of Motion — Order to Show Cause — Exhibits and Affidavits Annexed NYSCEF DOC. No(s). 9-15 Answering Affidavit and Exhibits NYSCEF DOC No(s). 16-26 Replying Affidavit and Exhibits NYSCEF DOC No(s). 27-31 Upon the foregoing papers submitted as Motion Seq. No. 1, the Defendant Sebastian Cortez ["Movant"], moves pursuant to CPLR §§503, 510, and 511 for an order granting a change of venue from Bronx County to New York County; and for such other and further relief as this Court deems just and proper. Plaintiffs’ complaint alleges they sustained serious injuries arising from a motor vehicle accident. The accident is alleged to have occurred on May 1, 2020, at the intersection of Broadway and West 225th Street in Bronx County. The intersection is situated in the area known as “Marble Hill.” Plaintiffs allege that venue in this action was based location of the accident. Plaintiffs commenced this action on April 10, 2023. Movant was served with the Summons and Verified Complaint on May 15, 2023. Movant interposed and answer, along with a Demand to Change Venue on June 7, 2023. In support of the motion, Movant submits, inter alia, the pleadings, an uncertified Police Accident Report1, Historical Articles, Movant’s Demand to Change Venue, and an affirmation. Counsel states the proper county for the trial of this action is where the accident occurred in New York County or Westchester County and none of the parties reside in Bronx County. Counsel states that the Plaintiffs reside in Westchester County and the Defendant reside in Dutchess County. Counsel states that the Plaintiffs have waived their right to select venue by, inadvertently, selecting the incorrect county. Counsel requests that the Court, in its discretion, remove this matter to Westchester County. Counsel argues that the accident occurred in the area known “Marble Hill” which is mainly located in New York County. In opposition Plaintiffs’ Counsel submits, inter alia, the pleadings, Objection to Defendant’s Demand to Change Venue, a NYPD Call Log; a Zip Code Lookup from the U.S. Postal Service; and a list of Local Business. Plaintiffs’ counsel argues that the Defendant’s argument over the location of the accident is misguided. Counsel argues that the accident occurred in, and venue is proper in Bronx County. Counsel states that the officers who responded to the subject accident were dispatched from 50th Precinct, a precinct which serves Bronx County. Counsel argues that the accident occurred in the zip code 10463, which the U.S. Postal Service designates as Bronx County. Counsel states that the Police Accident Report demonstrates Bronx County as the location of the subject accident. In reply, Defendant argues that the 50th Precinct’s coverage map, per the NYPD website, demonstrates that the accident occurred in New York County. Defendant argues that Sector B, as depicted on the map includes the border between New York and Bronx County, and the accident location occurring on the New York County side of the map. “The Court upon motion may change the place of trial in and action where: 1. The county designated for that purpose is not a proper county.” [CPLR §510] “To effect a change pursuant to CPLR §510 (1), a defendant must show that the plaintiff’s choice of venue is improper and that its choice of venue is proper.” Drayer-Arnow v. Ambrosio & Company, Inc., 181 AD3d, 651, 652 [2d Dept. 2020] [citation omitted]. CPLR §503(a) provides, “[e]xcept 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…” CPLR §511(b) directs that “[t]he 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.” In the instant action, the record demonstrates that the parties do not reside in neither New York County nor Bronx County. The Summons and Verified indicates that the Plaintiffs reside in Westchester County and the Defendant states he resides in Dutchess County. The submissions provided by the parties demonstrate that the accident occurred within the jurisdiction of the NYPD’s 50th Precinct, a precinct which administers Bronx County. Defendant’s historical articles explain that, although Marble Hill geographically abuts the Bronx, the neighborhood was awarded to New York County in 1984. The NYC Administrative Code §2-202(1) states in relevant part; “The borough of Manhattan shall consist of the territory known as New York County which shall contain all that part of the city and state, including that portion of land commonly known as Marble Hill and included within the county of New York and borough of Manhattan for all purposes pursuant to chapter nine hundred thirty-nine of the laws of nineteen hundred eighty-four[…]” The mere fact that Plaintiff submissions demonstrate the postal service has assigned a Bronx designation to the Marble Hill, it cannot override the legislative determination that Marble Hill is part of New York County. See Montesano v. New York City Housing Auth., 47 AD3d 215 [1st Dept 2007]. Applied here, the subject accident occurred in New York County, and thus the appropriate venue for this action lies in New York County. It is hereby; ORDERED that Defendant’s motion for an Order changing venue of this matter from Bronx County to New York County is GRANTED; and it is further ORDERED that the Clerk of the Supreme Court, Bronx County shall transfer this matter, Lizaida Valentin, Eli Robinson and MR by his Natural Mother and Guardian, Lizaida Valentin v. Sebastian Cortez, Index No. 806597/2023E; and it is further ORDERED that the Bronx County Clerk is hereby directed to deliver to the New York County Clerk all papers filed in relation to the action filed in Bronx County Supreme Court and certified copies of all minutes and entries, which shall be filed, entered, or recorded, as the case requires, in the office of the New York County Clerk; and it is further ORDERED that the Clerk shall mark Motion Seq. 1 as disposed in all court records. This constitutes the Order of this court. 1. CHECK ONE. CASE DISPOSED IN ITS ENTIRETY X CASE STILL ACTIVE 2. MOTION IS, X GRANTED DENIED GRANTED IN PART OTHER 3. CHECK IF APPROPRIATE, SETTLE ORDER SUBMIT ORDER SCHEDULE APPEARANCE FIDUCIARY APPOINTMENT REFEREE APPOINTMENT Dated: October 21, 2024
