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Van Zon v. Powers

December 13, 2006

ERIC VAN ZON, PLAINTIFF,
v.
SHARON POWERS, DEFENDANTS.



The opinion of the court was delivered by: John F. Keenan, United States District Judge

OPINION and ORDER

Defendant moves to transfer this personal injury action, brought in diversity, to the Northern District of New York on the ground that venue in the Southern District is improper. For the reasons that follow, the motion is granted.

Background

Plaintiff Eric Van Zon ("Van Zon") commenced this action on January 5, 2006 by filing a summons and complaint in this Court. The Complaint ("Compl.") alleged that, on February 1, 2005, Defendant Sharon Powers ("Powers") negligently operated her motor vehicle so as to strike and injure Van Zon while Van Zon was a pedestrian in a public parking lot in Egremont, Massachusetts. The Complaint alleged that Van Zon resided in Egremont, Massachusetts and that Powers resided at 52 Riverside Drive, in the County, City, and State of New York ("52 Riverside Drive"). (Compl. ¶¶ 2, 4.) The Complaint further alleged that, under 28 U.S.C. § 1391(a)(1), venue was proper in the Southern District because Powers, the sole defendant, resided within that district. (Id. ¶ 5.)

Defendant Powers filed an Answer on February 8, 2006, which denied, inter alia, that Powers resided at 52 Riverside Drive and that venue was proper in the Southern District. (Answer, ¶ 2) The Answer also asserted the affirmative defense that the complaint should be dismissed on the grounds of inconvenient or improper venue. (Id. ¶ 12.)

On May 26, 2006, Powers testified under oath at a pre-trial examination. Powers stated that she resided at 201 North Mountain Road, Copake Falls, New York 12517 ("Copake Falls"). (Defendant's Counsel's Affidavit in Support of Motion to Transfer Venue ("Def. Aff."), Ex. C. at 5.) Powers stated that she first took up residence at Copake Falls in 1996, after returning from a period of 16 years during which she resided abroad. (Id. at 10.) Powers testified that her mother, Helen Powers, resided at 52 Riverside Drive, and Powers sometimes visited her mother at that address. (Id. at 7-8.) Powers stated, however, that she never resided at 52 Riverside Drive. (Id.) She conceded that although

52 Riverside Drive "might have been my American mailing address," (Id. at 9-10), during her residence abroad, she never regularly received mail at 52 Riverside Drive. (Id. at 53.) When asked whether she received mail in her name at 52 Riverside Drive during various months of 2005 and 2006, Powers stated, "I may receive some junk mail still," but otherwise testified that she had no knowledge about receiving mail at 52 Riverside Drive. Powers also stated that the house at Copake Falls is owned by her mother, Helen Powers. (Id. at 8.)

Powers also has provided the Court a copy of her driver's license, which lists her address as "201 North Mtn. Rd., Copake Falls, New York 12517." (Defendant's Counsel's Affidavit in Reply ("Def. Aff. Rep."), Ex. A.)

Defendant maintains that Powers' testimony establishes that "at the time of the accident and all relevant times she was a resident of Copake Falls," a town in Columbia County, which is located in the Northern District of New York. (Def. Aff. ¶ 18.) Accordingly, Powers asserts that venue is improper in the Southern District.

Van Zon counters that Powers "maintains multiple residences including 52 Riverside Drive." (Plaintiff's Counsel's Affirmation in Opposition to Motion to Transfer Venue ("Pl.

Aff.") ¶ 2.) According to plaintiff, "defendant's venue motion is not based upon Ms. Powers' residential addresses, but upon her counsel's belief that, should this matter proceed to trial, a jury seated in Albany will be less generous to the plaintiff than a jury seated in New York County." (Id. ¶ 5.) In support of the assertion that Powers actually resides at 52 Riverside Drive, plaintiff submits the following evidence: (1) proof from the United States Postal Service, in response to plaintiff's request under the Freedom of Information Law, that Powers received mail at 52 Riverside Drive on nine separate occasions over an eleven month span, from June 15, 2005 to May 8, 2006; (2) the affidavit of Curtis Warren, a process server, who states that "Mr. Hysen", a building employee at 52 Riverside Drive, accepted service of process from Warren after Warren stated that he had legal papers to deliver to Powers; that Hysen "advised me that he was authorized to accept service of the legal papers on behalf of Sharon Powers" (Answer, Ex. C ¶ 3); and that after Warren sent service of process to "Sharon Powers" at 52 Riverside Drive, via first class mail, the mailing was not returned to Warren; (3) proof that the defendant's sister registered her motor vehicle at Copake Falls; and (4) proof that Powers and Powers' daughter maintain motor vehicle insurance at Copake Falls.

Plaintiff contends that Powers has submitted no proof, beyond her own sworn testimony, that she does not reside at Helen Power's apartment at 52 Riverside Drive. Plaintiff further argues that Power's receipt of mail at 52 Riverside Drive during 2005 and 2006, and Hysen's acceptance of legal papers on Powers' behalf, contradict Powers' sworn testimony.

Analysis

As an initial matter, the Court notes that Powers has moved for a transfer of venue pursuant to 28 U.S.C. ยง 1404(a). (Def. Aff. ...


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