Caminero v. Go Airborne, LLC , 27 N.Y.S.3d 856 ( 2016 )

Caminero v Go Airborne, LLC (2016 NY Slip Op 02575)

Caminero v Go Airborne, LLC

2016 NY Slip Op 02575

Decided on April 5, 2016

Appellate Division, First Department

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.

Decided on April 5, 2016
Mazzarelli, J.P., Andrias, Saxe, Moskowitz, Kahn, JJ.

721N 25495/14

[*1]James Caminero, Plaintiff-Appellant,

v

Go Airborne, LLC doing business as Bounce Trampoline Sports, Defendant-Respondent.

Alpert, Slobin & Rubenstein, LLP, Bronx (Morton Alpert of counsel), for appellant.

Hannum Feretic Prendergast & Merlino, LLC, New York (Christopher A. South of counsel), for respondent.

Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered June 24, 2015, which granted defendant's motion to change venue from Bronx County to Rockland County, unanimously reversed, on the law, without costs, the motion denied, and the action retained in Bronx County.

Plaintiff established, via his affidavit and supporting documentation, that he resided in Bronx County at the time that the action was commenced in November 2014, thereby making venue properly placed there (see CPLR 503[a]; Leetom v Bell, 68 AD3d 532 [1st Dept 2009]). The only evidence of plaintiff's residency elsewhere is a hospital record from October 2013, at a time when he attended a residential school in Rockland County. However, plaintiff graduated from that school in June 2014.

Plaintiff's failure to respond to defendant's written demand for a change of venue, pursuant to CPLR 511(b), did not preclude him from contesting the merits of defendant's motion (see e.g. McDermott v McDermott, 267 Appellant Div 171, 172-173 [1st Dept 1943]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 5, 2016

CLERK