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Addo v. Melnick

April 9, 2009

JANET ADDO, PLAINTIFF-RESPONDENT,
v.
NEIL MELNICK, M.D., ET AL., DEFENDANTS-APPELLANTS.



Order, Supreme Court, Bronx County (Alan J. Saks, J.), entered February 20, 2008, which upon granting plaintiff's motion for reargument, denied defendants' motion for a change of venue from Bronx County to Westchester County, reversed, on the law, without costs, defendants' motion granted, and venue changed to Westchester County.

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.

Gonzalez, P.J., Mazzarelli, Sweeny, McGuire, DeGrasse, JJ.

23462/06

On reargument, the court denied defendants' motion because the alleged malpractice occurred in the Bronx. However, venue is based on the parties' residence (CPLR 503[a]), not where the cause of action arose (Hitchoff v Air Brook Limousine, Inc., 26 AD3d 310 [2006]). The "residence" of a natural person is his or her abode, not office (see Friedman v Law, 60 AD2d 832 [1978]), and the individual defendant here resides in Westchester County. The corporate defendant also "resides" in Westchester. "The designation of a county as the location of a corporation's principal office in a certificate of incorporation is controlling in determining corporate residence for the purposes of venue" (Conway v Gateway Assoc., 166 AD2d 388, 389 [1990]), even if the corporation maintains an office or facility in another county (Altidort v Louis, 287 AD2d 669, 670 [2001]), and even if it is a professional corporation (see Della Vecchia v Daniello, 192 AD2d 415 [1993]).

In its original decision, the motion court properly found plaintiff's affidavit insufficient as proof of her residence because it contradicted her prior deposition testimony that she had moved from the Bronx to New Jersey prior to November 22, 2006, the date on which she commenced this action (see Nemeroff v Coby Group, 54 AD3d 649, 650-651 [2008]). In this regard, plaintiff had testified that she thought she moved to New Jersey on a Friday during the third week of November 2006 on what she thought was the 18th day of the month*fn1. While the dissent construes this testimony as an expression of uncertainty, we find it an admission. We look to Federal Rules of Evidence rule 801(d)(2)(B), which defines a party's admission as "a statement of which the party has manifested an adoption or belief in its truth [emphasis added]." Inasmuch as the phrase "I think" is an expression of belief, we conclude that such an expression can be an admission. The binding effect of such an admission is illustrated by this Court's recent decision in McNeill v LaSalle Partners (52 AD3d 407 [2008]), which reads, in part, as follows:

"The trial court also erred in precluding appellants from questioning plaintiff on cross-examination about his deposition testimony that the liquid on which he slipped might have been encapsulate' (a milky liquid used in the abatement of asbestos). . . At his deposition, plaintiff testified that he thought the liquid on which he slipped could be some kind of encapsulate, but I wasn't sure.' At trial, however, plaintiff testified that he had no idea what kind of liquid had caused his accident. Under these circumstances, appellants were entitled to question plaintiff about the deposition testimony in question, both for purposes of impeachment and to use the prior inconsistent testimony as evidence-in-chief that the liquid was encapsulate" (id. at 410 [emphasis added]).

Unquestionably an affidavit tailored to avoid the consequences of a deposition lacks evidentiary value (see Blackmon v Dinstuhl, 27 AD3d 241, 242 [2006]). For example, in Concepcion v Walsh (38 AD3d 317, 318 [2007]) we stated that: "[w]hile plaintiff's mother's affidavit asserts that there was peeling or chipping paint, her deposition testimony was that she did not know; accordingly, her affidavit lacks evidentiary value." Since plaintiff failed to submit documentary evidence (other than her own self-serving statement) supporting her claim that she resided in the Bronx when she commenced this action, and since this case does not involve conflicting affidavits, there is no need to hold a hearing as suggested by plaintiff and the dissent (see Martinez v Semicevic, 178 AD2d 228 [1991]; cf. Rivera v Jensen, 307 AD2d 229 [2003]). In this instance, the distinction the dissent draws between formal and informal admissions is of no moment. This is because plaintiff's deposition constituted the only evidence of plaintiff's place of residence albeit "some evidence" of same.

All concur except McGuire, J. who dissents in a memorandum as follows:

McGUIRE, J., (dissenting)

Plaintiff commenced this medical malpractice action in the Bronx on November 22, 2006, predicating the Bronx venue on the assertion in the summons that she resided in the Bronx. Thereafter, defendants moved to change venue to Westchester. In relevant part, plaintiff's affidavit in opposition to the motion asserted as follows: "I now clearly recollect that I moved to New Jersey on November 24, 2006. I know that I moved the Friday after Thanksgiving which would be November 24, 2006." It is undisputed that the Friday after Thanksgiving that year fell on November 24th.

The majority concludes that "[i]n its original decision [granting defendants' motion to change venue], the motion court properly rejected plaintiff's affidavit, which contradicted her prior deposition testimony" (emphasis added). This conclusion is not only erroneous, its implications are profoundly important.

In her deposition, taken on June 28, 2007, plaintiff testified as follows:

Q: How long have you been living at 38 Carnation Street in ...


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