April 2016

Chee v. DiPaolo:

Vincent Battista’s client, defendant-landowner, was awarded summary judgment dismissal of the complaint against it, on a premises liability action arising out of the alleged defect in the concrete sidewalk abutting the client’s property.

Attorney Battista used the plaintiff’s testimony and photographs of the incident location to successfully argue that the plaintiff knew the area well, the area was well-lit and that the defect was so minimal in size as to be trivial.

This result survived plaintiff’s appeal, and was instead affirmed by the Appellate Division, Second Department.

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Motion to Dismiss Against Out-of -Possession Landlord and Subsequent Change of Venue

In this personal injury action, Christine Capitolo, representing both the out-of-possession landlord and the tenant supermarket in possession, filed a motion to dismiss against the landlord and to change the venue from Kings County to Westchester County. The first branch of the motion was premised on the landlord’s lack of control, as supported by the lease which imparted maintenance duties to the tenant. The argument supporting the change of venue branch was part of a strategic consideration to relocate the litigation to the defendant-favoring Westchester County. The dismissal against the codefendant-landlord forced a fresh analysis of proper venue, as the Court had found previously that venue in New York County was supported by the location of landlord’s principle place of business.

The court found persuasive Attorney Capitolo’s argument that, once the action was dismissed against the out-of-possession landlord, proper venue should be the county of plaintiff’s residence, Westchester County, as supported by the correct reading of CPLR § 503(a). Simultaneously, the court found plaintiff’s reliance on CPLR § 509 to be misplaced, rendering ineffective plaintiff’s would-be choice of venue in Kings County. Ms. Capitolo’s argument was supported by Clase v. Sidoti, 20 A.D.3d 330, 799 N.Y.S.2d 194 (1st Dept. 2005), which states “where the venue is placed on the basis of the principal place of business of an improper party, a motion to change venue should be granted after the action is dismissed against the improper party.” Her argument on behalf of the client has afforded a favorable environment for subsequent litigation proceedings.