NK Acupuncture, P.C. v Travelers Indem. Co. (2008 NY Slip Op 51754(U))

NK Acupuncture, P.C. v Travelers Indem. Co.

2008 NY Slip Op 51754(U) [20 Misc 3d 142(A)]

Decided on August 19, 2008

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

NK Acupuncture, P.C. a/a/o TANIYA SMITH-JONES, Appellant,

against

Travelers Indemnity Co., Respondent.

Appeals from an order of the Civil Court of the City of New York, Kings County (Alan L. Lebowitz, J.H.O.), entered September 13, 2006, and an order of the same court (Bernard J. Graham, J.) entered October 20, 2006. The order entered September 13, 2006 granted defendant's motion to change venue to Queens County. The order entered October 20, 2006 denied plaintiff's motion to stay the transfer of the action to Queens County and for the imposition of sanctions.

Order entered September 13, 2006, and order entered October 20, 2006 insofar as it denied the branch of plaintiff's motion seeking the imposition of sanctions, affirmed without costs.

Appeal from order entered October 20, 2006, insofar as it denied the branch of plaintiff's motion seeking to stay the transfer of the action to Queens County, dismissed as academic.

Plaintiff commenced the instant action in the Civil Court of the City of New York, Kings County, to recover assigned first-party no-fault benefits. The summons stated that the basis for the designated venue in Kings County was "[d]efendant's residence." Defendant moved for a change of venue to Queens County, the county in which the assignor resided. In support of said motion, defendant submitted an affirmation from its in-house counsel in which he stated that defendant was a foreign corporation domiciled in Hartford, Connecticut. In opposition to the [*2]motion, plaintiff's attorney asserted in a conclusory manner that defendant transacted business in Kings County and, thus, was a resident thereof. In a reply affirmation, defendant's in-house counsel stated that defendant did not transact business in Kings County.

By statute, a corporation, such as defendant, is "deemed a resident of any county wherein it transacts business, keeps an office, has an agency or is established by law" (CCA 305 [b]). Since defendant established that it did not "transact[] business" in, and was not a resident of, Kings County, the court below did not improvidently exercise its discretion in transferring the action to Queens County, where the assignor resided. Accordingly, the order entered September 13, 2006 granting defendant's motion to change the venue of the action to Queens County is affirmed.

In view of the foregoing, the appeal from the order entered October 20, 2006, insofar as it denied the branch of plaintiff's motion seeking to stay the transfer of the action to Queens County, is dismissed as academic.

Furthermore, we are in agreement with the court below that defendant's motion to change the venue of the action to Queens County did not, under the circumstances presented, constitute "frivolous conduct" for which sanctions may be imposed (Rules of Chief Administrator [22 NYCRR] § 130.1-1 [a], [b]). Accordingly, the order entered October 20, 2006, insofar as it denied the branch of plaintiff's motion seeking the imposition of sanctions, is affirmed.