Motion to Change Venue Denied Despite Being Unopposed (NY)
In Francoise Mervil v. Eric Johnson and Marcia St. Urbain, Judge Francois A. Rivera denied Defendants’ unopposed motion to transfer venue because the only evidence in support of the Defendants’ motion constructed of inadmissible hearsay.
Plaintiff, Francoise Mervil (“Mervil”) commenced a personal injury action against the Defendants in Kings County Supreme Court, alleging Urbain was negligent in the operation of his vehicle so as to cause a collision with Mervil’s vehicle, severely injuring Mervil.
The Defendants’ answer asserted improper venue as an affirmative defense and moved to change the venue from Kings County to Nassau County. In their motion, the Defendants argued that the venue was improper because Mervil did not maintain a residence in Kings County. However, the only evidence the Defendants provided in support of their argument was an uncertified police report.
Despite the Defendants’ motion going unopposed, Judge Rivera denied the Defendants’ motion because the uncertified police report proffered by the Defendants was inadmissible and was the only evidence submitted to support their motion, thereby deeming the motion unsupported.
Even if the Defendants certified the police report, making the exhibit now admissible evidence, Judge Rivera would have still denied their motion. Judge Rivera conveyed that an individual can be a resident of more than one county and a police report alone is not sufficient evidence to demonstrate that the plaintiff does not reside in the county where he chose to commence the instant lawsuit.
Thanks to Irving Fayman for his contribution to this article. For more information, please contact Tom Bracken.