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Leetom v. Bell

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


December 15, 2009

ROBERT LEETOM, PLAINTIFF-APPELLANT,
v.
JASON ROGER BELL, M.D., ET AL., DEFENDANTS-RESPONDENTS, FRANK JAVIER GARRIDO, M.D., DEFENDANT.

Order, Supreme Court, Bronx County (Patricia Anne Williams, J.), entered January 26, 2009, which, insofar as appealed from as limited by the briefs, granted defendant Charles Mack, M.D.'s motion to reargue, and, upon reargument, vacated the court's prior order entered July 30, 2008 and granted defendant Mack's original application to change venue from Bronx County to Nassau County, unanimously reversed, on the law and the facts, without costs, the motion denied, and the action retained in Bronx 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., Moskowitz, DeGrasse, Manzanet-Daniels, RomÁn, JJ.

301459/08

The motion court erred in finding that plaintiff was not a resident of Bronx County when he commenced his action against defendants (CPLR 503[a]). In fact, the evidence established that plaintiff moved to the James J. Peters VA Medical Center in the Bronx (the Bronx VA) to convalesce after suffering a medical condition that caused him to lose the use of his legs. When he commenced this action, plaintiff had been living in the Bronx VA for nearly a year, and indeed, was unable to move back to his prior residence, a second-floor walk-up apartment in Queens. Thus, plaintiff was, in fact, a bona fide Bronx resident at the commencement of his action (see Blake v Massachusetts Mut. Life Ins. Co., 22 AD3d 230 [2005]). Further, the record contains no evidence suggesting that plaintiff assumed temporary residency at the Bronx VA for the sole purpose of obtaining an advantageous venue. Rather, plaintiff's transfer there was for health reasons, and defendants present no evidence to the contrary (Nunez v Ellenville Community Hosp., 41 AD3d 293 [2007]; Lilly v Ayoub, 260 AD2d 302 [1999]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20091215

© 1992-2009 VersusLaw Inc.



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