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Garced v. Clinton Arms Associates

January 20, 2009


Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered January 16, 2008, which, insofar as appealable, denied plaintiff's motion to renew a prior order, same court and Justice, entered on or about September 5, 2007, insofar as appealed from as limited by the briefs, granting the motion of defendant Clinton Arms Associates (Clinton) to change venue from Bronx County to Nassau County, affirmed, without costs. Appeal from the September 5, 2007 order, unanimously dismissed, without costs, as superseded by the appeal from the January 16, 2008 order.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Tom, J.P., Nardelli, Sweeny, McGuire, DeGrasse, JJ.


Plaintiff sustained severe burns to his neck on premises allegedly controlled by Clinton after he passed out from a heroin overdose and came into contact with an uninsulated hot water pipe. A psychosocial assessment conducted in connection with his admission to Jacobi Hospital on March 18, 2006 states that he "lives in a first floor apartment with his mother . . . spent four years in prison on drug charges and has been on parole for the last two years." Department of Correctional Services records, however, reflect that plaintiff had been released from custody the previous day, having been committed for a parole violation on December 29, 2005. Plaintiff was again in custody at the time he commenced this action by filing a summons and complaint on March 16, 2007. He placed venue in Bronx County on the basis of his residence immediately prior to his latest period of incarceration, purportedly the apartment occupied by his mother where his injury was sustained.

Clinton moved to change venue to Nassau County, its principal place of business (CPLR 503[d]), on the ground that venue was improperly laid. Clinton's application was supported by its own records as well as the affidavits of plaintiff's mother dated April 1, 2005 and April 6, 2007, her letter dated April 27, 2006 and section 8 housing assistance certifications dating back to 1999, all of which reflect that she was the only person residing in the apartment.

In opposition, plaintiff submitted records from Jacobi Hospital, where he was admitted for five days of treatment, including a skin graft, and his affidavit stating that, prior to incarceration, he had been residing in his mother's apartment. He argued that the motion should be denied because Clinton failed to prove that he lived elsewhere.

In reply, Clinton countered that the full extent of its burden was to demonstrate plaintiff's lack of residence in the county designated for trial. Clinton portrayed plaintiff's affidavit as unsupported and self-serving, noting that, on admission to Jacobi Hospital, plaintiff had given the name "Troy Pagan," not "Troy Garced." Finally, Clinton contended that plaintiff had failed to rebut his mother's numerous statements that she resided alone.

Plaintiff submitted further papers, denominated a sur-reply, including additional records from Jacobi Hospital and records from Lenox Hill Hospital, where he was briefly admitted in early April 2006 for treatment for a skin infection at the site of his skin graft. He maintained that any confusion over his identity in Jacobi Hospital records was attributable to his brother's surname, which is "Pagan." Plaintiff noted that those records had been corrected to reflect his true name.

Following Supreme Court's grant of a change of venue "for good cause shown," plaintiff brought a motion to renew and reargue, attaching a New York State identity card issued July 22, 2003 that had expired in October 2003, a pharmacy receipt dated April 10, 2006 and a mobile phone bill dated July 1, 2005. Plaintiff stated that his mother had been unable to locate these documents for him because she had been ill at the time he was preparing his response to the original motion.

Supreme Court denied plaintiff's motion in all respects. The court noted that he had failed either to demonstrate that the additional documents were previously unavailable to him or to offer a reasonable excuse for his omission to submit them in opposition to Clinton's original motion.

There is no dispute that the evidence submitted by Clinton in support of its motion demonstrated that plaintiff failed to establish residency in the Bronx. What divides us is whether the evidence adduced by plaintiff in opposition to the motion is sufficient to raise a question of fact concerning his residence at his mother's apartment.

As the parties recognize, the proper venue is the county in which plaintiff resided prior to his incarceration in the spring of 2007 (see Matter of Corr v Westchester County Dept. of Social Servs., 33 NY2d 111, 115 [1973]; Farrell v Lautob Realty Corp., 204 AD2d 597, 598 [1994]). The difficulty with plaintiff's allegation that he lived with his mother is the highly regulated nature of the apartment in which she resides. In particular, the approval of the relevant housing authority is required "to add any other family member as an occupant of the unit" (24 CFR 982.551[h][2]), as mandated by Department of Housing and Urban Development regulations (24 CFR 966.4[a][1][v]; see Matter of Abdil v Martinez, 307 AD2d 238, 239 [2003]). Even assuming that plaintiff is not legally barred from claiming the apartment as his residence (see Katz Park Ave. Corp. v Jagger, 11 NY3d 314, 317 [2008] [nonresident status under Immigration and Nationality Act precludes New York primary residence]), the record is devoid of any indication that plaintiff sought the necessary approval to occupy the apartment, such as an application by his mother to add him as a relative and member of her household. The record is also bereft of affidavits from neighbors or building personnel that might support plaintiff's presence in the apartment (cf. Morrisania II Assoc. v Harvey, 139 Misc 2d 651, 654 [1988]). Indeed, the documentary evidence concerning his mother's tenancy flatly contradicts plaintiff's residence in the apartment, specifically, her own sworn and unsworn statements and the recertification statements required to be obtained by Clinton in the course of its participation in the section 8 program (see id. at 660-661).

Plaintiff's opposition to the original motion consisted merely of his conclusory affidavit and a single page from the hospital records indicating that he arrived at, and was admitted to, Jacobi Hospital on March 18, 2006 and that he provided the hospital with his mother's address. Neither the fact that plaintiff sustained injury while at his mother's apartment nor his occasional presence in the Bronx for treatment during the following month is dispositive of the determination of residence and, thus, venue. The first page of the hospital record establishes, at most, that he was present at his mother's apartment on the date of injury. But an isolated visit to his mother upon release from custody does not suffice to overcome her consistent averments that she was the sole occupant of the apartment (see Furlow v Braeubrun, 259 AD2d 417 [1999]). As to plaintiff's contention that Clinton failed to establish that he resided in a ...

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