CPLR § 503; CPLR § 510; Venue

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 [*2]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.

Plaintiff's designation of New York County as the venue for this
action was proper, since corporate defendant's principal place of
business is located within that county (CPLR 503[c]; see Margolis v United Parcel Serv., Inc., 57 AD3d 371
[2008]). In order to obtain a discretionary change of venue under CPLR
510(3), "the moving party must provide detailed justification for such
relief in the form of the identity and availability of proposed
witnesses, the nature and materiality of their anticipated testimony,
and the manner in which they would be
inconvenienced by the initial venue" (Rodriguez v Port Auth. of N.Y. & N.J., 293 AD2d 325, 326 [2002]).

Defendants failed to meet this burden. In support of the motion,
defendants submitted, inter alia, an affidavit from defendant driver
Ferraro, "whose convenience [is] not a factor for consideration on the
motion" (Gissen v Boy Scouts of Am., 26 AD3d 289,
291 [2006]), and who failed to particularize his anticipated testimony.
It is further noted that in opposition to defendants' motion, plaintiff
submitted an affidavit from an eyewitness to the motor vehicle
accident, who stated that she was available to testify and would not be
inconvenienced by traveling to New York County.