Dyer v. 930 Flushing, LLC

118 A.D.3d 742

987 N.Y.S.2d 206

2014 N.Y. Slip Op. 04165

Karl DYER, respondent,

v.930 FLUSHING, LLC, appellant.

Supreme Court, Appellate Division, Second Department, New York.

June 11, 2014.

McAndrew, Conboy & Prisco, LLP, Melville, N.Y. (Mary C. Azzaretto of counsel), for appellant.

Talisman, DeLorenz & Pinnisi, P.C. (Dunn, Browne & Varcadipane, LLC, New York, N.Y. [Jeffrey W. Varcadipane], of counsel), for respondent.

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Solomon, J.), dated October 24, 2013, which denied its motion pursuant to CPLR 510(1) and 511 to change the venue of the action from Kings County to Nassau County.

ORDERED that the order is affirmed, with costs.

The plaintiff placed the venue of this action in Kings County based upon the alleged location of the principal office of the defendant. The defendant moved to transfer venue to Nassau County, alleging that it did not reside in Kings County at the time of the commencement of this action and that its principal office was located in Nassau County, as evidenced by a computer printout from the website of the New York State Department of State, Division of Corporations.

The sole residence of a limited liability company for venue purposes is the county where its principal office is located as designated in its articles of organization ( seeCPLR 503[c]; Limited Liability Company Law §§ 102[s]; 203[e][2]; Graziuso v. 2060 Hylan Blvd. Rest. Corp., 300 A.D.2d 627, 628, 753 N.Y.S.2d 103;see also Milom v. Marble Hall Apts., Inc., 37 A.D.3d 672, 832 N.Y.S.2d 46;Hamilton v. Corona Ready Mix, Inc., 21 A.D.3d 448, 449, 800 N.Y.S.2d 450). Such office need not be a place where business activities are conducted by the limited liability company ( see Limited Liability Law § 102[s] ). Computer printouts are admissible as business records if the data was stored in the normal course of business ( seeCPLR 4518[a]; State Technology Law § 302[2]; Ed Guth Realty v. Gingold, 34 N.Y.2d 440, 451–452, 358 N.Y.S.2d 367, 315 N.E.2d 441;Education Resources Inst., Inc. v. Piazza, 17 A.D.3d 513, 515, 794 N.Y.S.2d 65;Schneider Fuel Oil v. DeGennaro, 238 A.D.2d 495, 656 N.Y.S.2d 668;Matter of Thomma, 232 A.D.2d 422, 648 N.Y.S.2d 453). However, the computer printout submitted by the defendant in support of its motion was inadmissible, since it was not certified or authenticated by the head of the New York State Department of State ( seeCPLR 2307, 4518[c] ), and it was not supported by a factual foundation sufficient to demonstrate its admissibility as a business record ( see People v. Kennedy, 68 N.Y.2d 569, 579–580, 510 N.Y.S.2d 853, 503 N.E.2d 501;Matter of Leon RR, 48 N.Y.2d 117, 122, 421 N.Y.S.2d 863, 397 N.E.2d 374;Lodato v. Greyhawk N. Am., LLC, 39 A.D.3d 494, 495, 834 N.Y.S.2d 239;Education Resources Inst., Inc. v. Piazza, 17 A.D.3d at 515, 794 N.Y.S.2d 65). Furthermore, the certified copy of the articles of organization submitted by the defendant for the first time in the reply papers was not properly before the Supreme Court ( see Tingling v. C.I.N.H.R., Inc., 74 A.D.3d 954, 956, 903 N.Y.S.2d 89;Gonzalez v. Sun Moon Enters. Corp., 53 A.D.3d 526, 526–527, 861 N.Y.S.2d 401;Ramos v. Cooper Tire & Rubber Co., 51 A.D.3d 896, 897, 859 N.Y.S.2d 235). Since the defendant failed...