The courts are closed for Veterans Day but the law office is open and so we are posting.

Of course, best wishes to my fellow Vietnam veterans and to the women and men whose service has kept us free.

Staying put.

In this action for personal injuries and wrongful death, the First Department denied third-party defendant's motion to change venue from Bronx to Westchester, in Bakiriddin v. Idi Construction, which was decided on November 8, 2007.

Plaintiff's decedent, who was third-party defendant's employee, was injured at a construction site in New York County and was taken to a hospital in New York
County, where he remained for two months. He then was moved to a nursing home in Bronx County, where he died eight months later after being in a comatose state for most, if not all, of his stay there.

Plaintiff was appointed administrator in Bronx County, and venue was placed there pursuant to CPLR 503[b]. The pleading filed in Bronx Surrogate's Court gave plaintiff's address in Westchester, but it also indicated, as reflected in the death certificate, decedent's residence and place of death as Bronx County. The court said that, absent evidence that plaintiff's application for testamentary letters fraudulently misrepresented or withheld facts pertaining to decedent's domicile, a collateral attack on the Bronx County Surrogate's appointment of plaintiff is foreclosed, pursuant to SCPA 204 and 205[1].

The court also noted that third-party defendant did not follow the procedures of CPLR 511, namely, a timely motion following a demand for change of venue, and so a change of venue, based on the location of its principal place of business in Westchester County, is not owing as of right. Finally, the court said it could not grant a discretionary change of venue since third-party defendant did not identify any nonparty material witnesses whose convenience would be served by the change, as required by CPLR 510[3].