Martirano v. Golden Wood Floors Inc.

Martirano v Golden Wood Floors Inc. (2016 NY Slip Op 02040)

Martirano v Golden Wood Floors Inc.

2016 NY Slip Op 02040

Decided on March 22, 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 March 22, 2016
Sweeny, J.P., Renwick, Moskowitz, Gische, JJ.

575N

[*1]Alfred J. Martirano, 24698/14E Plaintiff-Appellant,

v

Golden Wood Floors Inc., et al., Defendants-Respondents.

Tomkiel & Tomkiel, Scarsdale (Matthew Tomkiel of counsel), for appellant.

Keane & Bernheimer, PLLC, Hawthorne (Connor W. Fallon of counsel), for respondents.

Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered April 6, 2015, which granted defendants' motion to change venue from Bronx County to Westchester County, unanimously reversed, on the law, without costs, and the motion denied.

The motion to change venue on the ground that the designated venue was improper should have been denied as untimely, since defendants did not move within the strict time limits provided by statute, and did not offer any explanation for their delay (CPLR 511[b]; CPLR 2103[b][2]; see Jackson v City of New York, 127 AD3d 552, 553 [1st Dept 2015]). Even if the merits were considered, defendants failed to demonstrate that venue was improperly placed in Bronx County (see CPLR 510[1]). Although the individual defendant averred that he has operated the corporate defendant from a principal office in Westchester County since 2007, seven years before the accident at issue, defendants submitted evidence from the New York State Department of State showing that the corporate defendant's principal place of business is in Bronx County (see CPLR 503[a], [c]; see also Job v Subaru Leasing Corp., 30 AD3d 159, 159 [1st Dept 2006]). Further, defendants essentially acknowledged that the business was incorporated in the Bronx in 2005. "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 . . . Since the certificate of incorporation here was never formally amended to change the principal place of business, the original designation governs" (Krotcha v On Time Delivery Serv., Inc., 62 AD3d 579, 580 [1st Dept 2009] [internal quotation marks omitted]). Lastly, defendants made no attempt to show that a change of venue to Westchester County would be warranted based on the convenience of material witnesses (see id. at 580-581; CPLR 510[3]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 22, 2016

CLERK