Southwick v City of New York

2024 NY Slip Op 32818(U)

August 12, 2024

Supreme Court, New York County

Docket Number: Index No. 156919/2021

Judge: J. Machelle Sweeting

Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001 (U), are republished from various New York

State and local government sources, including the New

York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official

publication.156919/2021 SOUTHWICK, LYNN E. vs. CITY OF NEW YORK ET AL

Motion No. 002 Page 1 of 5 The following e

- filed documents, l isted by NYSCEF document number (Motion 002) 29, 30, 31, 32, 33,

35, 36, 37, 38

were read on this motion to/for POST UNDERTAKING/BOND

.

In the underlying action, plaintiff alleges that on January 7, 2021, she was injured when

she fell while near or at the premises located at 55 Water Street, in New York, New York.

Pending before the court is a motion f i l e d b y Defendant NEW WATER STREET CORP.

( “ N e w W a t e r ” ) seek i n g an order

, pursuant to Civil Practice Law and Rules (“CPLR”) 8501(a) and

CPLR 8503, compelling plaintiff LYNNE E. SOUTHWICK, to post security/bond for costs on the

grounds t hat plaintiff is a non

- resident of the State of New York

.

N e w W a t e r argues that a t plaintiff’s 50

- h h e a r i n g

, h e l d o n May 27, 2021

, and a t plaintiff’s

deposition

, taken on June 17, 2024, plaintiff testified that she had moved to Pennsyl vania

approximately two weeks after the accident, and that she is a resident of t h e State of Pennsylvania.

N e w W a t e r argues that because plaintiff is not a resident of the State of New York, she should be

compelled to post a security bond for costs under CPLR 850 1(a) and 8503

, so that if plaintiff loses

her case, she will not return home to Pennsylvania and leave defendant s with a judgment that can

o n l y be enforced in plaintiff’s home state

.



### SUPREME COURT OF THE STATE OF NEW YORK

NEW YORK COUNTY

PRESENT: HON. J. MACHELLE SWEETING PART 62

Justice

----------------------------------------------------------------- -- -------------- X INDEX NO. 156919/2021

MOTION DATE 06/25/2024

MOTION SEQ. NO. 002

DECISION + ORDER ON

MOTION LYNN E. SOUTHWICK,

Plaintiff,

- v

-

CITY OF NEW YORK, NEW WATER STREET CORP.

Defendant s

.

------------------------------------------------------------------- -- ------------ X 

### FILED: NEW YORK COUNTY CLERK 08/12/2024 04:44 PM INDEX NO. 156919/2021

NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 08/12/2024

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### [* 1]156919/2021 SOUTHWICK, LYNN E. vs. CITY OF NEW YORK ET AL

Motion No. 002 Page 2 of 5 In opposition

, plaintiff argues that

, “Defendant’s motion does not unequivocally establish

that the Plaintiff does not maintain a residence in the State of New York” ; that “there is conflicting

evidence as to the Plaintiff’s potential maintenance of a residence within the State of New York”;

and that “ it remains uncle ar ” as to whether p laintiff maintai ns residence s in both New York and

Pennsylvania

. Plaintiff also argues that i n the event the court determines that a security bond is

necessary in this action, that i t b e f i x e d a t the statutory amount of $500

.

C o nclusions of Law

CPLR 8501(a) provides, in relevant part: “[...] upon motion by the defendant without

notice, the court or a judge thereof shall order security for costs to be given by the plaintiffs where

none of them is [...] a resident of the state when the motion is made. ” CPLR 8503 provides, in

part: “ Security for costs shall be given by an undertaking in an amount of five hundred dollars in

counties within the city of New York [ ...] or such greater amount as shall be fixed by the court

[...].”

Here, a t plaintiff’s 50

- h hearing (transcript at NYS CEF Doc. No. 38), plaintiff testified as

follows:

p. 4

EXAMINATION BY MS. BILLIG:

Q State your name for the record, please.

A Lynn Southwick.

Q State your address for the record, please.

A 116 Eliot Lane, Albrightsville, Pennsylvania 18210. 

### FILED: NEW YORK COUNTY CLERK 08/12/2024 04:44 PM INDEX NO. 156919/2021

NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 08/12/2024

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### [* 2]156919/2021 SOUTHWICK, LYNN E. vs. CITY OF NEW YORK ET AL

Motion No. 002 Page 3 of 5 p. 43

A I'm seeing a doctor.

Q What type of doctor?

A Orthopedic.

Q Do you have the nam e of the doctor that you plan on seeing?

A Not yet. We're doing

-- we're trying to find the best one.

Q Is that someone in New York?

A No, it's in Pennsylvania. I can't go back to New York.

At plaintiff’s deposition (transcript at NYSCEF Doc. No. 33), plaintiff testified as follows:

p. 43

Q. Can you please state your address for the record?

A. 116 Eliot Lane, Albrightsville, New York

-- I'm sorry, Pennsylvania.

Q. No worries.

A. I used to be in New York.

Q. Do you live with anyone?

A. No, I live alone.

p. 9

Q. Have you lived anywhere else between your date of incident and you now living in

Pennsylvania, or is that the only address?

A. No, I'm in Pennsylvania due to the accident.

Q. You moved from the 76th Glendale, New York, address to your cur rent Pennsylvania address?

A. Correct, because I couldn't stay in that house.

p. 24

- 25

Q. How long after your accident did you move to Pennsylvania?

A. Well, I think

-- I don't want to speculate.

Q. That's okay, just give me an approximation.

A. Well, I would think I was there at least two weeks.

p. 27

Q. Two weeks after you moved to Pennsylvania and you started seeing the physical therapist in

Pennsylvania, how many times did you see this physical therapist?

A. In Pennsylvania?

Q. Yes.

A. I really could n't tell you.

Q. Do you remember having any follow

- up appointments with the doctor in New York that operated

on your hip?

A. No.

Q. Okay.

A. Because I went right from the hospital to P ennsylvania with an ambulance.

Q. An ambulance transported you from New York to Pennsylvania?

A. Yes. 

### FILED: NEW YORK COUNTY CLERK 08/12/2024 04:44 PM INDEX NO. 156919/2021

NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 08/12/2024

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### [* 3]156919/2021 SOUTHWICK, LYNN E. vs. CITY OF NEW YORK ET AL

Motion No. 002 Page 4 of 5 p. 28

Q. I'm sorry. The day after your fall, you had an operation, correct?

A. Yes.

Q. And then you were in the hospital for two weeks, correct?

A. Yes, give or take.

Q. Then you moved from New York to Pennsylvania, correct?

A. I had no choice. I had to sell my house and I had to go and live near my daughters because I

couldn't do anything.

p. 70

Q. When you were discharged, what was your status? Were you using a cane or a walker, or were

you able to wa lk without assistance?

A. They took me by wheelchair to the door and then when I got in the cab, the cab that

-- what do

you call it? The ambulance. That's when we were going to Pennsylvania, right from there.

[ emphasis added]

Contrary to the arguments made by plaintiff’s counsel, the court finds that plaintiff’s

testimony clearly and unequivocally establishes that she resides in Pennsylvania and not New

York. H e r e

, r a t h e r t h a n a r g u e that “it remains unclear” as t o where plaintiff lives, p l a i n t i f f ’ s

counsel could have e s t a b l i s h e d h e r e r e s i d e n c y o n t h e r e c o r d

. N o t a b l y

, a b s e n t f r o m the r e c o r d i s

any Affidavit from plaintiff to refute N e w W a t e r ’ s key factual argument w h i c h i s that plaintiff is

not a resident of New York State. 

### FILED: NEW YORK COUNTY CLERK 08/12/2024 04:44 PM INDEX NO. 156919/2021

NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 08/12/2024

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### [* 4]156919/2021 SOUTHWICK, LYNN E. vs. CITY OF NEW YORK ET AL

Motion No. 002 Page 5 of 5 C o nclusion

For the reasons set forth above, it is hereby:

ORDERED that this motion is GRANTED; and it is further

ORDERED that plaintiff is compelled to post a security bond in New York in t he amount

of $500; and it is further

ORDERED that movant N e w W a t e r s h a l l submit to the court a Proposed Order f o r the

posting of t h e bond.

8/ 12 /2024 $SIG$

DATE J. MACHELLE SWEETING, J.S.C.

CHECK ONE: CASE DISPOSED X NON

- FINAL DISPOSITION

X GRANTED DENIED GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE 

### FILED: NEW YORK COUNTY CLERK 08/12/2024 04:44 PM INDEX NO. 156919/2021

NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 08/12/2024

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