The opinion
Barone v Walt Whitman Mall, LLC
2025 NY Slip Op 30590(U)
February 21, 2025
Supreme Court, New York County
Docket Number: Index No. 157245/2022
Judge: Mary V. Rosado
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
State and local government sources, including the New
York State Unified Court System's eCourts Service.
This opinion is uncorrected and not selected for official
publication.
[FILED: NEW YORK COUNTY CLERK 02/21/2025 04:47 P~ INDEX NO. 157245/2022
NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 02/21/2025
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON.MARYV.ROSADO PART 33M
Justice
------------------X INDEX NO. 157245/2022
FORTUNATA BARONE,
MOTION DATE 10/18/2024
Plaintiff,
MOTION SEQ. NO. 001
- V -
WALT WHITMAN MALL, LLC, SIMON PROPERTY GROUP,
DECISION + ORDER ON
INC., SAKS & COMPANY LLC
MOTION
Defendant.
------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 19, 20, 21, 22, 23,
24,25,27,28,29, 30, 31, 32, 33, 34, 35, 36, 38,40,41,42,43
were read on this motion to/for CHANGE VENUE
Upon the foregoing documents, and a final submission date of January 21, 2025,
Defendants Walt Whitman Mall, LLC ("Whitman Mall") and Simon Property Group, Inc.'s
(collectively "Movants") motion for an Order directing the transfer of venue from New York
County to Suffolk County is granted.
I. Background
On January 16, 2022, Plaintiff allegedly fell at a mall operated by Movants located at 230
Walt Whitman Road, Huntington Station, New York (see generally NYSCEF Doc. 13). On August
24, 2022, Plaintiff filed her Complaint and an Amended Summons and Complaint on September
18, 2024 (NYSCEF Docs. 30, 31). Movants filed a Demand for Change of Venue to Suffolk
County on October 11, 2024, and their Answer to Plaintiff's Amended Complaint on October 18,
2024 (NYSCEF Doc. 23, 26).
Movants seek to change venue to Suffolk County. Movants argue Plaintiff, her medical
providers, the location of the accident, named witnesses, and other potential parties, all reside or
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are located in Suffolk County. Plaintiff opposes on grounds of untimeliness and waiver (see
NYSCEF Doc. 34).
II. Discussion
On a motion to change venue, pursuant to CPLR 510(1), "defendant's burden ... is limited
to establishing that the designated county is improper" (]ME Watchdog, Inc. v Baker, McEvoy,
Morrissey & Moskovits, P.C., 145 AD3d 464, 465 [1st Dept 2016]). "Except where otherwise
prescribed by law, the place of trial shall be in the county in which one of the parties resided
when [the action] was commenced; the county in which a substantial part of the events or
omissions giving rise to the claim occurred; or if none of the parties resided in the state, in any
county designated by the plaintiff' (CPLR 503[a]). A corporation is a resident of the county in
which its principal office is located (CPLR 503 [c]).
A defendant moving to change venue on the grounds of improper venue must follow the
demand procedures set forth in CPLR 511 (Roman v Brereton, 182 Ad2d 556,557 [1st Dept 1992];
CPLR 510[1]). CPLR 511 provides that a defendant shall serve a written demand to change venue
with their Answer to a Complaint, or prior to it (CPLR 511 [a]-[b]). The defendant may thereafter
move to change venue within 15 days after service of the demand (CPLR 511 [b ]). A motion to
change venue on any other ground shall be made within a reasonable time after commencement of
the action (CPLR 511 [a]).
Here, Movants' motion to change venue is timely. Movants properly served their demand
to change venue prior to their Amended Answer and subsequently filed the instant motion within
15 days after service of the demand (Bronx Car Park Sys., Inc. v Fordham Hill Owners' Corp.,
220 AD3d 440, 440 [1st Dept 2023]). There is no showing that Movants intended to delay
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prosecution of this action in serving their Amended Answer (see Id.; Corea v Browne, 45 AD3d
623, 624 [2d Dept 2007]).
Furthermore, Plaintiffs selection of New York County as venue for this action is improper.
Whitman Mall is a Delaware limited liability company with a principal office in Indianapolis,
Indiana (NYSCEF Doc. 42). Its certificate of formation does not establish a principal place of
business in New York, except that it permits Whitman Mall to "acquire own, hold, lease, operate,
manage, maintain, develop, finance and improve that certain real estate and improvements known
as Walt Whitman Mall located in Huntington Station, Suffolk County, New York" (Id.). Plaintiff's
basis to designate New York County as the venue for this action is Whitman Mall's selection of
New York County for service of process with the Secretary of State (NYSCEF Doc. 34 ). However,
this does not establish residence for purposes of evaluating proper venue. Here, no party was a
resident of New York County at the time of the incident, all relevant parties and potential witnesses
are residents of Suffolk County, and the incident occurred in Suffolk County. Therefore, the Court
finds that New York County is an improper venue for this action.
Accordingly, it is hereby,
ORDERED that the motion for a change of venue is granted and venue of this action is
changed from this Court to the Supreme Court, County of Suffolk, and it is further
ORDERED that the Clerk of this Court shall transfer the file in this action to the Clerk of
the Supreme Court, County of Suffolk and shall mark his/her records to reflect such transfer; and
it is further
ORDERED that, within 30 days from entry of this order, counsel for movants shall serve
a copy of this order with notice of entry upon the Clerk of this Court, shall pay the appropriate
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Motion No. 001
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transfer fee, if any, and shall contact the staff of the Clerk of this Court and cooperate m
effectuating the transfer; and it is further
ORDERED that the Clerk of the Court shall coordinate the transfer of the file in this action
with the Clerk of the Supreme Court, Suffolk County, so as to ensure an efficient transfer and
minimize insofar as practical the reproduction of documents, including with regard to any
documents that may be in digital format; and it is further
ORDERED that such service upon the Clerk of this Court shall be made in accordance with
the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for
Electronically Filed Cases (accessible at the "E-Filing" page on the court's website); and it is
further
ORDERED that within IO days of entry, counsel for Movants shall serve a copy of this
Decision and Order, with notice of entry, on all parties via NYSCEF.
This constitutes the Decision and Order of the Court.
2/21/2025
DATE
CHECK ONE: CASE DISPOSED
GRANTED □ DENIED □ OTHER
APPLICATION: SETTLE ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN □ REFERENCE
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