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7 = e en INDEX NO, 502258/2012
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 11/13/2012
Ii
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
een e tener ee nnnn ene nnnennen inne nnnnenaneenennnn x
JASON GRAHAM,
AFFIRMATION IN SUPPORT
Plaintiff,
Index No, 502258/2012
-against-
T-MOBILE USA, INC., and ELIAS PROPERTIES
FLATBUSH, LLC,
Defendants.
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DANIEL Y. SOHNEN, an attorney duly admitted to practice law before the Courts of the
State of New York, affirms the truth of the following under the penalties of perjury and pursuant
to CPLR 2106:
1 Tam an associate of the firm of Smith Mazure Director Wilkins Young &
Yagerman, P.C., attorney for Defendant ‘T-Mobile USA, Inc. herein and I am fully familiar with
the facts and circumstances surrounding the within action.
2 This affirmation is made in support of the instant motion for an order:
A Pursuant to CPLR §510 and §511, transferring venue of
this action from Kings County Supreme Court to Nassau
County Supreme Court; and
Such other, further, and different relief as to this Court may
seem just, proper, and equitable.
3 This is an action for personal injuries and damages allegedly sustained by
plaintiff, Jason Graham as a result of an alleged trip and fail accident on or about June 8, 2012.
4 The above-entitled action was commenced by the service of a summons dated
July 18, 2012, and complaint filed with the court (copies of which are cumulatively annexed
hereto as Exhibit “A”). According to the summons, the residence of the plaintiff is State of New
York, County of Queens, City of Albans (see paragraph one of Exhibit “A”), which is located
within Queens County. On or about October 16, 2012, issue was joined by the service of a
verified answer with various demands for discovery, and a demand for change of venue (copies
of which are cumulatively annexed hereto as Exhibit “B”).
5 Counsel for defendant, T-Mobile USA, Inc. emailed a stipulation to change venue
to plaintiffs counsel on October 25, 2012, however, plaintiff's counsel refused to consent to the
change of venue (copies of the proposed stipulation and emails are cumulatively annexed hereto
as Exhibit “C”).
6. Pursuant to CPLR §511, this motion is filed within fifteen days following the
service of the demand for change of venue. A review of the within summons and complaint
reveals that counsel for plaintiff has failed to list a proper basis for venue. See Exhibit “A”. The
plaintiff is a resident of Queens County. The moving defendant is a foreign corporation
registered to do business in New York. T-Mobile USA, Inc. resides in the State of Washington.
The co-defendant, Elias Properties Flatbush, LLC is a resident of Nassau County. None of the
parties are residents of Kings County making the designation of Kings County an improper one.
7 Additionally, T-Mobile has a venue in Albany, New York for the purposes of
jurisdiction pursuant to its registration with the New York State, Department of State, Division
of Corporations. Annexed hereto as Exhibit “D” is the listed information from the Division of
Corporations, which indicates that T-Mobile is a foreign business corporation with a principal
place of business in Washington State and jurisdictional basis in Albany, New York for purposes
of venue.
8 Because no party resides in the County of Kings, counsel for plaintiff has failed to
state a proper venue. Therefore, pursuant to CPLR §510(1), the Court must transfer the venue of
soncencee.
this action to Nassau County on the basis that Nassau County is a proper venue for this action
based upon the residence of Anthony Rose. It is well established that the venue of an action
should be placed in a county in which one of the parties resided when the action was
commenced. Burstein vy, Fazzari, 239 A.D.2d 375 (2" Dept. 1997).
9 When a plaintiff fails to select a proper venue based upon residence, plaintiff
forfeits the right to select venue. Pena v. Classic Realty Management Corp., 247 A.D.2d 215 (1*
Dept. 1998). Plaintiff's failure to properly designate an appropriate choice of venue is grounds
for forfeiture which permits the defendants to choose the venue as long as the defendant’s choice
is proper.
10. The County of Nassau is a proper venue because it is the place of residence for
co-defendant Elias Properties Flatbush, LLC. As such, because of the failure of counsel for
plaintiff to designate the proper choice of venue under the law, this case should be transferred to
the County of Nassau. Accordingly, it is respectfully prayed that the Court grants the instant
motion and issue an order transferring the venue of this case from Supreme Court Kings County,
to Supreme Court, County of Nassau.
ol. No prior applications to change venue has been made.
WHEREFORE, it is respectfully requested that the Court issue an order pursuant
to CPLR §510 and §511, transferring venue of this action from Kings County Supreme Court to
Nassau County Supreme Court and granting such other, further, and different relief as to this
Court may seem just, proper, and equitable.
Dated: New York, New York
October 25, 2012
DAR . SOHUNEN
34
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7 = e en INDEX NO, 502258/2012 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 11/13/2012 Ii SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS een e tener ee nnnn ene nnnennen inne nnnnenaneenennnn x JASON GRAHAM, AFFIRMATION IN SUPPORT Plaintiff, Index No, 502258/2012 -against- T-MOBILE USA, INC., and ELIAS PROPERTIES FLATBUSH, LLC, Defendants. en nnn nnn cece een cece cence nna DANIEL Y. SOHNEN, an attorney duly admitted to practice law before the Courts of the State of New York, affirms the truth of the following under the penalties of perjury and pursuant to CPLR 2106: 1 Tam an associate of the firm of Smith Mazure Director Wilkins Young & Yagerman, P.C., attorney for Defendant ‘T-Mobile USA, Inc. herein and I am fully familiar with the facts and circumstances surrounding the within action. 2 This affirmation is made in support of the instant motion for an order: A Pursuant to CPLR §510 and §511, transferring venue of this action from Kings County Supreme Court to Nassau County Supreme Court; and Such other, further, and different relief as to this Court may seem just, proper, and equitable. 3 This is an action for personal injuries and damages allegedly sustained by plaintiff, Jason Graham as a result of an alleged trip and fail accident on or about June 8, 2012. 4 The above-entitled action was commenced by the service of a summons dated July 18, 2012, and complaint filed with the court (copies of which are cumulatively annexed hereto as Exhibit “A”). According to the summons, the residence of the plaintiff is State of New York, County of Queens, City of Albans (see paragraph one of Exhibit “A”), which is located within Queens County. On or about October 16, 2012, issue was joined by the service of a verified answer with various demands for discovery, and a demand for change of venue (copies of which are cumulatively annexed hereto as Exhibit “B”). 5 Counsel for defendant, T-Mobile USA, Inc. emailed a stipulation to change venue to plaintiffs counsel on October 25, 2012, however, plaintiff's counsel refused to consent to the change of venue (copies of the proposed stipulation and emails are cumulatively annexed hereto as Exhibit “C”). 6. Pursuant to CPLR §511, this motion is filed within fifteen days following the service of the demand for change of venue. A review of the within summons and complaint reveals that counsel for plaintiff has failed to list a proper basis for venue. See Exhibit “A”. The plaintiff is a resident of Queens County. The moving defendant is a foreign corporation registered to do business in New York. T-Mobile USA, Inc. resides in the State of Washington. The co-defendant, Elias Properties Flatbush, LLC is a resident of Nassau County. None of the parties are residents of Kings County making the designation of Kings County an improper one. 7 Additionally, T-Mobile has a venue in Albany, New York for the purposes of jurisdiction pursuant to its registration with the New York State, Department of State, Division of Corporations. Annexed hereto as Exhibit “D” is the listed information from the Division of Corporations, which indicates that T-Mobile is a foreign business corporation with a principal place of business in Washington State and jurisdictional basis in Albany, New York for purposes of venue. 8 Because no party resides in the County of Kings, counsel for plaintiff has failed to state a proper venue. Therefore, pursuant to CPLR §510(1), the Court must transfer the venue of soncencee. this action to Nassau County on the basis that Nassau County is a proper venue for this action based upon the residence of Anthony Rose. It is well established that the venue of an action should be placed in a county in which one of the parties resided when the action was commenced. Burstein vy, Fazzari, 239 A.D.2d 375 (2" Dept. 1997). 9 When a plaintiff fails to select a proper venue based upon residence, plaintiff forfeits the right to select venue. Pena v. Classic Realty Management Corp., 247 A.D.2d 215 (1* Dept. 1998). Plaintiff's failure to properly designate an appropriate choice of venue is grounds for forfeiture which permits the defendants to choose the venue as long as the defendant’s choice is proper. 10. The County of Nassau is a proper venue because it is the place of residence for co-defendant Elias Properties Flatbush, LLC. As such, because of the failure of counsel for plaintiff to designate the proper choice of venue under the law, this case should be transferred to the County of Nassau. Accordingly, it is respectfully prayed that the Court grants the instant motion and issue an order transferring the venue of this case from Supreme Court Kings County, to Supreme Court, County of Nassau. ol. No prior applications to change venue has been made. WHEREFORE, it is respectfully requested that the Court issue an order pursuant to CPLR §510 and §511, transferring venue of this action from Kings County Supreme Court to Nassau County Supreme Court and granting such other, further, and different relief as to this Court may seem just, proper, and equitable. Dated: New York, New York October 25, 2012 DAR . SOHUNEN 34