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Defense Counsel Moves for Change of Venue in Wrongful Death Action


Records reflect that for reasons unbeknownst to the court at this time, the decedent, a 19 year old female, was at a Hotel located approximately one half mile from her residence, where she resided with her mother. While at the Hotel, the decedent made her way to the roof of the Hotel where she plunged to her death. The mother filed for Limited Letters Testamentary for the estate administration, which were issued to her by the Surrogate County court in order to bring an action for a potential wrongful death action. The mother’s Verified Complaint read that at the time of the commencement of the action, she was a resident of the County. The verified complaint contains allegations of fact in support for a single cause of action for damages due to wrongful death and the decedent’s conscious pain and suffering up until her death. The defense counsel moved to transfer the venue.

A Probate Lawyer said that the mother’s counsel, whose law office is located in Kings County, selected Kings County as the venue in the Summons of this action based on the purported residence of the decedent. Yet, the Verified Complaint lists Richmond County as the decedent’s residence. Article 5 of the CPLR sets forth the rules governing proper venue. Section 503 states “the place of trial shall be in the county in which one of the parties resided when the action was commenced.” It has long been held by the courts that residency, for purposes of venue, is defined as “where a party stays for some time with a bona fide intent to retain the place as a residence for some length of time and with some degree of permanency.” It is further established that any documents or “indicia of residence acquired after the commencement of the action are irrelevant to the determination of residency,” for purposes of venue. In Siegfried v. Siegfried, the Appellate Division, Second Department stated that the court should not consider factors such as bank statements, voter registration, and a library card that came about after the commencement of the action. Documentary evidence that can prove a person’s residence include driver’s license, voter registration card, and utility bills. Simple letters of correspondence sent to the purported address will not suffice. Furthermore, mere affidavits with conclusory statements, without being buttressed by ample documentary evidence, is not enough to prove a person’s residence. However, an affidavit supplemented with rent receipts, telephone bills, and lease agreements does create the “necessary indicia of residency.”

An Estate Lawyer said that on both the Verified Complaint and the Amended Verified Complaint, the first allegation stated that she was a resident of Richmond County at the commencement of the action. This is not merely an “unfortunate typographical error” or a “regretful misreading” as she contends. It clearly stated that she was a resident of Richmond County. Here the complainant has put forth numerous documents to try and prove her residency is Brooklyn, including tax returns, cell phone bills, pay stubs, and bank statements. Only one document, a pay stub dated December 2009, was sent to the Brooklyn address before the start of the action. All the other letters and forms are undated or dated after the commencement of the action and are therefore, irrelevant in trying to prove residency.

A Westchester County Probate Lawyer said that the defending party also contend in their Affirmation in Reply that the mother lacks the legal capacity to bring this action in her current role as “perspective administratrix.” Under EPTL section 5-4.1, a personal representative may bring suit on behalf of the decedent for a wrongful death suit within two years from the date of death. A personal representative is defined by EPTL section 1-2.13 as “a person who has received letters to administer the estate of the decedent.”

Limited letters testamentary are valid for 6 months and are routinely extended during the pendency of the lawsuit or permanent letters testamentary are issued without an expiration date. The mother never applied to extend the limited letters testamentary in Richmond County. When this current action commenced, it had been more than one year since the County limited letters testamentary had expired. There is no record in the Surrogate’s Court of Kings County that the mother, the perspective Administratrix, ever applied for limited or permanent letters testamentary in Brooklyn. Therefore, she may not have standing to maintain a lawsuit on behalf of her daughter’s estate in Kings County. Accordingly, it is hereby ordered, that the motion to change venue to Richmond County is granted.

A Suffolk County Probate Lawyer saidthat services of legal counsels are very important especially in cases involving probate, estate litigation, will contest and the likes. Jurisdictions and Venue are sometimes included as issues in the matters relating to the estate. Stephen Bilkis & Associates, with offices throughout New York, with its Richmond County Estate Lawyers, or its New York Estate Administration Attorneys, you can be assured that proper remedies are accorded to you.

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