Pomerantsev v. Vladimir Kodinsky

Dec 6, 2017
2016-09932
Versions:156 A.D.3d 656
64 N.Y.S.3d 567
2017 NY Slip Op 08545
2017 NY Slip Op 8545

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Baynes, J.), dated July 28, 2016, which granted the motion of the defendant Vladimir Kodinsky pursuant to CPLR 510 (1) and 511 to change the venue of the action from Kings County to Richmond County.

Ordered that the order is reversed, on the law, with costs, the motion of the defendant Vladimir Kodinsky pursuant to CPLR 510 (1) and 511 to change the venue of the action from Kings County to Richmond County is denied, and the Clerk of the Supreme Court, Richmond County, is directed to deliver to the Clerk of the Supreme Court, Kings County, all papers filed in this action and certified copies of all minutes and entries (see CPLR 511 [d]).

CPLR 503 (a) provides, in relevant part, that “the place of trial shall be in the county in which one of the parties resided when it was commenced.” “For venue purposes, a residence is where a party stays for some time with a bona fide intent to retain the place as a residence for some length of time and with some degree of permanency” (Ellis v Wirshba, 18 AD3d 805, 805 [2005]; see Johnson v Finkelstein, 145 AD3d 863, 863 [2016]; Patton v Malychev, 132 AD3d 829, 830 [2015]; Forbes v Rubinovich, 94 AD3d 809, 810 [2012]). In the context of venue, a party may have more than one residence (see CPLR 503 [a]; Patton v Malychev, 132 AD3d at 830).

“In order to prevail on a motion pursuant to CPLR 510 (1) to change venue, a defendant must show that the plaintiff‘s choice of venue is improper, and also that the defendant‘s choice of venue is proper” (Deas v Ahmed, 120 AD3d 750, 750 [2014]; see CPLR 511 [b]; Kidd v 22-11 Realty, LLC, 142 AD3d 488, 489 [2016]; Gonzalez v Sun Moon Enters. Corp., 53 AD3d 526 [2008]). Here, in support of his motion pursuant to CPLR 510 (1) and 511 to change the venue of the action from Kings County to Richmond County, the defendant Vladimir Kodinsky failed to demonstrate that the plaintiff did not reside in Kings County at the time of commencement of the action (see Deas v Ahmed, 120 AD3d at 751; Chehab v Roitman, 120 AD3d 736, 737-738 [2014]). Hence, Kodinsky failed to meet his initial burden, and the Supreme Court should have denied his motion to change the venue of the action.

Balkin, J.P., Hinds-Radix, Duffy and Connolly, JJ., concur.

In an action to recover damages for personal injuries, the defendant Vladimir Kodinsky appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Baynes, J.), dated July 28, 2016, as denied his cross motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against him.

Ordered that the order is reversed insofar as appealed from, on the law, with one bill of costs, and the cross motion of the defendant Vladimir Kodinsky for summary judgment dismissing the complaint and all cross claims insofar as asserted against him is granted.

This action arises from a three-vehicle accident which occurred on the eastbound Staten Island Expressway near its intersection with Clove Road in Richmond County. The plaintiff, who was operating the lead vehicle, commenced this action against the defendant Vladimir Kodinsky, who was operating the middle vehicle, and the defendant Lizette Flores, who was operating the rearmost vehicle. After other motions were made, Kodinsky cross-moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against him, contending that he was not at fault in the happening of the accident. The Supreme Court, inter alia, denied the cross motion. Kodinsky appeals.

“The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway” (Vehicle and Traffic Law § 1129 [a]; see Napolitano v Galletta, 85 AD3d 881, 882 [2011]). Hence, “[a] rear-end collision with a stopped vehicle creates a prima facie case of negligence against the operator of the moving vehicle, thereby requiring that operator to rebut the inference of negligence by providing a non-negligent explanation for the collision” (Hauser v Adamov, 74 AD3d 1024, 1025 [2010]; see Hanakis v DeCarlo, 98 AD3d 1082, 1084 [2012]). “Evidence that a vehicle was struck in the rear and propelled into the vehicle in front of it may provide a sufficient non-negligent explanation” (Ortiz v Haidar, 68 AD3d 953, 954 [2009]; see Wooldridge-Solano v Dick, 143 AD3d 698, 699 [2016]; Kuris v El Sol Contr. & Constr. Corp., 116 AD3d 675, 676 [2014]; Strickland v Tirino, 99 AD3d 888 [2012]; Hanakis v DeCarlo, 98 AD3d at 1084; Katz v Masada II Car & Limo Serv., Inc., 43 AD3d 876, 877 [2007]).

Here, Kodinsky established his entitlement to judgment as a matter of law by demonstrating, prima facie, that his vehicle was slowing down in response to a traffic condition ahead, and that his vehicle was then propelled forward into the plaintiff‘s vehicle after his vehicle was struck in the rear by Flores‘s vehicle (see Ortiz v Haidar, 68 AD3d at 954; Katz v Masada II Car & Limo Serv., Inc., 43 AD3d at 877). In response, neither Flores nor the plaintiff raised a triable issue of fact. Contrary to the contention of the plaintiff and Flores, the cross motion was not premature (see CPLR 3212 [f]).

Accordingly, the Supreme Court should have granted Kodinsky‘s cross motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against him.

Balkin, J.P., Hinds-Radix, Duffy and Connolly, JJ., concur.