Opinion
8466N Index 162454/15
02-21-2019
Tanesha ARTHUR, Plaintiff–Appellant, v. LIBERTY MUTUAL AUTO AND HOME SERVICES LLC, doing business as Liberty Mutual Insurance, Defendant, Leean Cassar, Defendant–Respondent.
Ogen & Sedaghati, P.C., New York (Eitan A. Ogen of counsel), for appellant. Law Office of James J. Toomey, New York (Evy L. Kazansky of counsel), for respondent.
Ogen & Sedaghati, P.C., New York (Eitan A. Ogen of counsel), for appellant.
Law Office of James J. Toomey, New York (Evy L. Kazansky of counsel), for respondent.
Renwick, J.P., Tom, Singh, Moulton, JJ.
Supreme Court providently exercised its discretion to relax the "vigorous requirements for renewal" in the interest of substantive fairness ( Corporan v. Dennis, 117 A.D.3d 601, 601, 986 N.Y.S.2d 451 [1st Dept. 2014] ; Tishman Constr. Corp. of N.Y. v. City of New York, 280 A.D.2d 374, 377, 720 N.Y.S.2d 487 [1st Dept. 2001] ), where defendant Leean Cassar failed to justify her failure to present proper evidentiary support on her initial motion to change venue to Nassau County. Venue was originally correctly placed by plaintiff in New York County. Subsequently, plaintiff entered into a stipulation of settlement and discontinuance with defendant Liberty Mutual Insurance. Transfer of venue may be granted when plaintiff voluntarily discontinues the action against the party that served as the basis for venue (see Crew v. St. Joseph's Med. Ctr., 19 A.D.3d 205, 206, 799 N.Y.S.2d 16 [1st Dept. 2005] ; Mejia v. Nanni, 307 A.D.2d 870, 871, 763 N.Y.S.2d 611 [1st Dept. 2003] ). Upon renewal, Cassar provided evidence that both she and plaintiff resided in Nassau County at the time this action was commenced.
Supreme Court properly determined that the unsigned deposition testimony of defendant Cassar constituted admissible evidence of Cassar's residence as the transcript was certified by the court reporter and plaintiff does not challenge its accuracy (see Ying Choy Chong v. 457 W. 22nd St. Tenants Corp., 144 A.D.3d 591, 591–592, 42 N.Y.S.3d 116 [1st Dept. 2016] ; Franco v. Rolling Frito–Lay Sales, Ltd., 103 A.D.3d 543, 543, 962 N.Y.S.2d 54 [1st Dept. 2013] ).