Matter of Estate of Morgana v Staten Is. Hotel
2011 NY Slip Op 51496(U) [32 Misc 3d 1229(A)]
Decided on August 9, 2011
Supreme Court, Richmond County
Maltese, J.
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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 9, 2011
Supreme Court, Richmond County





Plaintiff is represented by the Law Offices of William Pager. Defendants are represented by the law firm of Strongin Rothman & Abrams, LLP.

Joseph J. Maltese, J.

The defendants, Staten Island Hotel, SI Hotel Holding LLC, and the Staten Island Hotel Limited Partnership motion to change venue from the Supreme Court, Kings County, to the Supreme Court, Richmond County is granted.


On October 4, 2008, for reasons unbeknownst to the court at this time, the plaintiff decedent, Lina Morgana, a 19 year old female, was at the Staten Island Hotel (Hotel), located at 1415 Richmond Avenue, Staten Island, New York. The Hotel is approximately one half mile from her residence at 62B Jennifer Place, Staten Island, New York, where Lina resided with her mother, the plaintiff, Yana Morgana. While at the Hotel, the decedent made her way to the roof of the Hotel where she plunged to her death. Yana Morgana's attorney, who has an office in Staten Island, New York, filed for Limited Letters Testamentary which were issued to Yana Morgana on December 31, 2008 by the Surrogate of Richmond County in order to bring an action for a potential wrongful death action. [*2]

However, the plaintiff apparently changed attorneys to one who has offices in Brooklyn, New York, who on June 4, 2010 commenced the instant action by filing a summons and complaint with the Kings County Clerk's Office. The Summons stated that venue was based on plaintiff's residence at "2558 East 28th Street, Brooklyn, NY 11235." However, plaintiff's Verified Complaint, dated April 4, 2010, Paragraph 1 reads "At the time of the commencement of this action, Plaintiff was a resident of the County of Richmond, State of New York." 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. Paragraphs 4, 17-50 all began "On October 4, 2009...." An Amended Verified Complaint was submitted on July 19, 2010 to change the date of these paragraphs to the date of the actual decedent's death, October 4, 2008. However, Paragraph 1 remained the same in the Amended Verified Complaint stating that the plaintiff was a resident of Richmond County at the commencement of the action.

The defendants served an Answer to the Amended Verified Complaint dated April 11, 2011, that included thirteen affirmative defenses. The third affirmative defense states that the plaintiff's complaint filed in Kings County is an improper venue, and that the place of trial of the action should be changed to a proper venue, Richmond County, pursuant to CPLR § 510. Submitted along with the defendants' answer was a Demand to Change Venue pursuant to CPLR § 511. When the plaintiff did not respond to the Demand to Change Venue to a proper county, defendants filed the underlying Notice of Motion to change venue with the Richmond County Clerk's Office on April 25, 2011.


The plaintiff'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 plaintiff. Yet, the Verified Complaint lists Richmond County as the plaintiff's residence. Article 5 of the CPLR sets forth the rules governing proper venue. Section 503 states "[t]he 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."[FN1] 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.[FN2] 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.[FN3] Documentary evidence that can prove a person's residence include driver's license, voter [*3]registration card, and utility bills.[FN4] Simple letters of correspondence sent to the plaintiff's purported address will not suffice.[FN5] Furthermore, mere affidavits with conclusory statements, without being buttressed by ample documentary evidence, is not enough to prove a person's residence.[FN6] However, an affidavit supplemented with rent receipts, telephone bills, and lease agreements does create the "necessary indicia of residency."[FN7]

On both the Verified Complaint and the Amended Verified Complaint, the first allegation stated the plaintiff 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 the plaintiff contends. It clearly stated that plaintiff was a resident of Richmond County.

Here plaintiff 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 on April 4, 2010, and are therefore, irrelevant in trying to prove residency.

The defendants, also put forth documents to show that the plaintiff's residence was in Richmond County at the commencement of the action. The defendants' Affirmation in Reply contains the plaintiff's petition for probate and letters testamentary (Exhibits H) and the decedent's death certificate (Exhibit I). The petition for probate was filed with the Surrogate's Court of Richmond County on December 23, 2008. The form listed the decedent's residence as well as the applicant-plaintiff's domicile as "62 Jennifer Place, Staten Island, New York." The Richmond County address is also listed on the decedent's death certificate.

Defendants also contend in their Affirmation in Reply that plaintiff lacks the legal capacity to bring this action in her current role as "perspective administratrix." Under EPTL § 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 § 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 plaintiff never applied to extend the limited letters testamentary in Richmond County. When this current action commenced on June 4, 2010, it had been more than one year since the [*4]Richmond County limited letters testamentary had expired in June of 2009. There is no record in the Surrogate's Court of Kings County that Yana Morgana, the perspective Administratrix, ever applied for limited or permanent letters testamentary in Brooklyn. Therefore, Ms. Morgana may not have standing to maintain a lawsuit on behalf of her daughter's estate in Kings County.

Lastly, plaintiff contends that the defendants do not have standing to make this motion and claim that a motion for a default judgement against them has been filed in Kings County Supreme Court. Defendants argue that the plaintiff agreed to extend the time to answer until April 11, 2011. In support of their argument, defendants attached an unsigned Stipulation Extending Time to Answer in Exhibit A of their Affirmation in Reply. While the attached copy is not signed, the plaintiff's counsel does not dispute that it was forwarded to him to memorialize the agreement between the attorneys to extend the time to answer. Nonetheless, this court will grant the defendants leave to file their answer dated April 4, 2011 and the plaintiff shall accept same and be permitted file responses to the remaining affirmative defenses within thirty (30) days of this Order.


It is the finding of this court that decedent, Lina Morgana, and her plaintiff mother, Yana Morgana, resided at 62B Jennifer Place, Staten Island, New York in Richmond County when Lina Morgana died on October 4, 2008. Moreover, the plaintiff, Yana Morgana, continued to reside at the Staten Island address when the limited letters testamentary were issued by the Richmond County Surrogate on December 31, 2008, which were effective for 6 months and may be renewed upon application to the Surrogate's Court. Thus, when the plaintiff's counsel filed the Summons and Complaint on June 4, 2010 in Kings County, no letters testamentary were then in effect from either the Richmond County Surrogate, nor from the Kings County Surrogate. Moreover, Richmond County is the resident county of the defendants in this action and is thereby a proper county in which to bring this suit. Consequently, the venue must be changed to Richmond County where both the plaintiff and defendants resided and where the temporary letters of administration were initially issued, which may now be renewed nunc pro tunc.

Accordingly, it is hereby:

ORDERED, that the defendant's motion to change venue to Richmond County is granted; and it is further

ORDERED, that the plaintiff shall forthwith file an application to extend her limited letters testamentary or file for permanent letters testamentary with the Surrogate Court of Richmond County, and shall document same to this court and opposing counsel upon receipt of the updated letters testamentary; and it is further

ORDERED, that the defendants are granted leave to file their answer dated April 4, 2011, and that the plaintiff shall accept such answer and is granted thirty (30) days to file responses to the Affirmative Defenses contained therein not otherwise ruled upon in this Decision and Order; and it is further [*5]

ORDERED, that the Clerk of the Kings County Supreme Court shall send the court file under Index No. 500290/10 to the Clerk of the Richmond County Supreme Court forthwith; and it is further

ORDERED, that counsel for the parties shall appear in this court, DCM Part 3, 130 Stuyvesant Place, 3rd Floor, Staten Island, New York 10301 on August 31, 2011.


DATED: August 9, 2011

Joseph J. Maltese

Justice of the Supreme Court


Footnote 1: Ingenito v. Wantagh Racket Sports, Inc., 47 AD3d 887, 888 [2d Dept 2008].

Footnote 2: Mandelbaum v. Mandelbaum, 151 AD2d 727 [2d Dept 1989] (").

Footnote 3: 92 AD2d 916 [2d Dept 1983].

Footnote 4: Martinez v. Semicevic 178 AD2d 228, 229 [1st Dept 1991].

Footnote 5: Labissiere v. Roland 231 AD2d 687 [2d Dept 1996].

Footnote 6: Furth v. Elrac, Inc. 11 AD3d 509, 510 [2d Dept 2004].

Footnote 7: Schaefer v. Schwartz 226 AD2d 619, 620 [2d Dept 1996].