Merendino v. Lloyd

In an action, inter alia, to recover damages for legal malpractice and fraud, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Williams, J.), dated July 7, 1989, as granted the defendants’ cross motion to change the *595venue of the action from Kings County to Richmond County and referred the plaintiffs’ motion for consolidation of the action with two related actions pending in the Supreme Court, Richmond County, to that court.

Ordered that the order is reversed insofar as appealed from, on the law, and the motion and cross motion are denied; and it is further,

Ordered that the appellants are awarded one bill of costs.

The basis of venue herein being the county of residence of the plaintiff Joseph Merendino at the time of commencement of the action, we find that venue was properly placed in Kings County in the first instance (see, CPLR 503 [a]; cf., Torriero v Austin Truck Rental, 143 AD2d 595, 596). Since the burden was on the party alleging improper venue, it was incumbent upon the defendants to produce evidence to establish that the plaintiffs residence was not in Kings County. This they failed to do. Hence, the defendants were not entitled to a change of venue as a matter of right (see, CPLR 510 [1]). Mangano, P. J., Brown, Harwood and Miller, JJ., concur.