Johnson v. Finkelstein

Summary

The Appellate Division, Second Department, affirmed an order denying the defendants’ motion to change venue from Kings County to New York County in a medical malpractice and lack-of-informed-consent action. The court held that the defendants failed to establish prima facie that the plaintiff was not a Kings County resident when the action was commenced, so the burden did not shift to the plaintiff.

Holdings

1. Defendants failed to demonstrate prima facie that the plaintiff was not a resident of Kings County when she commenced the action; therefore, the burden did not shift to the plaintiff to establish her Kings County residence, and the motion to change venue was properly denied.
2. For venue purposes, a residence is a place where a party stays for some time with a bona fide intent to retain it as a residence for some length of time and with some degree of permanency, and a party may have more than one residence.

Questions Presented

1. Whether defendants established prima facie that the plaintiff was not a resident of Kings County when the action was commenced, warranting a change of venue to New York County under CPLR 503(a).
2. Whether a party may have more than one residence for purposes of venue.

Disposition

affirmed