FILED: KINGS COUNTY CLERK 08/02/2016 11:23 AM INDEX NO. 505521/2016 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 08/02/2016 JFC/dra/168105 TA-2015-06-17-0003-001 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS --------------------------------------------------------------------------x DOREEN KELLEY, Plaintiff, INDEX NO: 505521/2016 NOTICE OF MOTION TO CHANGE VENUE - against - NEW YORK CITY TRANSIT AUTHORITY, JOHN DOE #1, A MOTORMAN EMPLOYED BY THE NEW YORK CITY TRANSIT AUTHORITY; AND JOHN DOE #2, A CONDUCTOR EMPLOYED BY THE NEW YORK CITY TRANSIT AUTHORITY, Defendants. ---------------------------------------------------------------------------x PLEASE TAKE NOTICE that upon the annexed affirmation of JUNE-ANNETTE CHENN dated August 2, 2016, together with all exhibits annexed hereto, and upon all the pleadings and proceedings heretofore had herein, the undersigned will move this Court at an IAS Part TO BE ASSIGNED, Honorable Justice TO BE ASSIGNED at the Courthouse, located at 360 Adams Street, Brooklyn, New York, 11201 on the 26 th day of August 2016, at 9:30 o clock in the forenoon of that day or soon thereafter as counsel can be heard, for an order pursuant to CPLR 505(b), 510(1) and (2) and 511(a) changing the place of trial of this action from the Kings County to the New York County upon the ground that the designated place of trial is not a proper County and that the place of trial of an action against defendant NEW YORK CITY TRANSIT AUTHORITY 1 of 6
shall be in the County where the cause of action arose, and for such other and further relief as this Court may deem just and proper. PLEASE TAKE FURTHER NOTICE that this action seeks to recover monetary damages for personal injuries to plaintiff DOREEN KELLEY. PLEASE TAKE FURTHER NOTICE that answering affidavits, if any, are to be served at least seven (7) days prior to the return date thereof, pursuant to CPLR Section 2241(b). Dated: Brooklyn, New York August 2, 2016 /s/ LAWRENCE HEISLER, ESQ. BY: JUNE-ANNETTE CHENN Attorney for Defendant NEW YORK CITY TRANSIT AUTHORITY, 130 Livingston Street, 11 th Floor Brooklyn, New York 11201 (7l8) 694-3832 TO: SEE RIDER 2 of 6
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS -------------------------------------------------------------------------x DOREEN KELLEY, Plaintiff, Index No.: 505521/2016 AFFIRMATION IN SUPPORT - against - NEW YORK CITY TRANSIT AUTHORITY, JOHN DOE #1, A MOTORMAN EMPLOYED BY THE NEW YORK CITY TRANSIT AUTHORITY; AND JOHN DOE #2, A CONDUCTOR EMPLOYED BY THE NEW YORK CITY TRANSIT AUTHORITY, Defendants. -------------------------------------------------------------------------x JUNE-ANNETTE CHENN, an attorney duly admitted to practice law in the State of New York, hereby affirms the following pursuant to CPLR Rule 2106. 1. I am associated with LAWRENCE HEISLER, attorney of record for defendant NEW YORK CITY TRANSIT AUTHORITY. 2. I make this affirmation upon information and belief. The source of my information and the grounds for my belief are the records and files of defendant s Law Department, which files and records I believe to be correct and true. 3. This affirmation is submitted in support of NEW YORK CITY TRANSIT AUTHORITY s motion for an order changing venue to the proper county. 4. This is an action to recover damages for personal injuries allegedly sustained by plaintiff on June 17, 2015. 5. This action was commenced by the filing of the Summons and Verified Complaint with the Clerk, Supreme Court, Kings County on or about the 25 th day of April, 2016, a copy of which is annexed hereto as Exhibit A. Issue was joined by 3 of 6
service of Defendants Verified Answer on the 29 th day of July, 2016, a copy of which is annexed hereto as Exhibit B. 6. Contemporaneous with joinder of issue, NEW YORK CITY TRANSIT AUTHORITY served a Stipulation to Change Venue dated July 29, 2016, a copy of which is annexed hereto as Exhibit C. 7. The incident allegedly occurred on Southbound subway platform of the 59 th Street/ Columbus Circle Subway Station in the County of New York, State of New York. See Summons and Complaint, Exhibit A. 8. The accident having occurred in the County of New York, the proper venue is New York County. 9. CPLR 505(b) states in pertinent part: The place of trial of an action against the NEW YORK CITY TRANSIT AUTHORITY shall be in the county within the City of New York in which the cause of action arose, or, if it arose outside of the City, in the County of New York. (Emphasis added). 10. Plaintiff would not be prejudiced having the case brought in New York County, the County of proper venue pursuant to CPLR 505(b). 11. Moreover, CPLR 505(b) mandates that venue be in the County where the cause of action arose as evidenced by the use of the word shall rather than, for example, the words may be and as such, it is submitted that venue must be placed in New York County. 12. Further, all records, documents, and witnesses of NEW YORK CITY TRANSIT AUTHORITY pertaining to this action would be located in New York County, to the extent they exist. 4 of 6
13. Therefore, since New York County is the proper county for the trial of this action by virtue of CPLR 505(b), the motion of TRANSIT for a change of venue should be granted. WHEREFORE, defendant NEW YORK CITY TRANSIT AUTHORITY, respectfully requests that an Order be made changing the place of trial of this action from Kings County to New York County and for such other and further relief as this Court deems just, proper and equitable. Dated: Brooklyn, New York August 2, 2016 /s/ JUNE-ANNETTE CHENN 5 of 6
RIDER TO: LAW OFFICES OF SEAN H. ROONEY ATTORNEYS FOR PLAINTIFF 26 COURT STREET SUITE 1816 BROOKLYN, NY 11242 6 of 6