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Self-Serving Affidavit Insufficient to Defeat Change of Venue Motion In NY

December 6, 2012

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In Fischel v. Zarkowky, the defendants, based in Rockland County, New York moved to change venue of the action from Kings County to Rockland County. Plaintiff designated Kings County as the venue for the action based on his residence.
In support of their motion, the defendants produced copies of internet telephone directories indicating that the plaintiff had two phone numbers listed in Rockland County. Moreover, a Kings County phone directory search yielded no listings for the plaintiff. The defendants also submitted a certified copy of the Rockland County Board of Elections Registration report indicating that the plaintiff resided in Rockland County. The plaintiff voted in Rockland County every year since 1994.
In opposition the plaintiff submitted an affidavit stating he had been a Kings County resident prior to commencing the action and a copy of his driver's license issued prior to commencement of the action, which listed his Kings County address.
The court held that self-serving affidavits are insufficient to establish residence at the time the action was commenced. While the plaintiff submitted a driver license, he did not submit any other documents evidencing his Kings County residence, such as a lease, tax returns or bills. Therefore, venue was improper in Kings County and the case was transferred to Rockland County.
Thanks to Maju Varghese for his contribution to this post.

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